PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to Title 30 Texas Administrative Code (TAC) §§114.1, 114.2, 114.50, 114.53, and 114.309.
Amended §§114.2, 114.50, and 114.309 are adopted without changes to the proposed text as published in the June 16, 2023, issue of the Texas Register (48 TexReg 3174) and, therefore, will not be republished. Amended §114.1 and §114.53 are adopted with changes to the proposed text and, therefore, will be republished.
Amended §§114.1, 114.2, 114.50, 114.53, and 114.309 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP).
Background and Summary of the Factual Basis for the Adopted Rules
On October 7, 2022, the EPA published its reclassification of Bexar County from marginal to moderate nonattainment for the 2015 eight-hour ozone National Ambient Air Quality Standard (NAAQS), effective November 7, 2022 (87 Federal Register (FR) 60897). Bexar County is subject to the moderate nonattainment requirements in federal Clean Air Act (FCAA), §182(b). The FCAA and 40 Code of Federal Regulations (CFR) Part 51, as amended, require a basic vehicle emissions inspection and maintenance (I/M) program in ozone nonattainment areas classified as moderate, so the state must implement an I/M program in Bexar County. Rulemaking is required to implement I/M and set the testing fee applicable in Bexar County, and a SIP revision is required to incorporate a Bexar County I/M program into the SIP. The rulemaking and SIP revision were due to the EPA by January 1, 2023, and implementation of the I/M program in Bexar County is required by November 7, 2026.
Also on October 7, 2022, the EPA published its reclassification of the 10-county Dallas-Fort Worth (DFW) area from serious to severe nonattainment for the 2008 eight-hour ozone NAAQS, effective November 7, 2022 (87 FR 60926). Beginning one year after reclassification to severe, participation in the federal reformulated gasoline (RFG) program is required in the 10-county DFW nonattainment area. RFG is gasoline that is blended to burn more cleanly than conventional gasoline to reduce smog-forming and toxic pollutants. In RFG-covered areas, the sale of gasoline that the EPA has not certified as reformulated is prohibited. Collin, Dallas, Denton, and Tarrant Counties are already covered under the federal RFG rules because they opted into the program effective January 1, 1995 under the 1979 one-hour ozone NAAQS (57 FR 46316, October 8, 1992).
Ellis, Johnson, Kaufman, Parker, Rockwall, and Wise Counties are currently subject to the state low Reid Vapor Pressure (RVP) rules in Chapter 114, Subchapter H, Division 1, but on November 7, 2023 they will be subject to the federal RFG program. To avoid overlapping applicability between the state RVP rules and the federal RFG program for those six counties, this rulemaking adoption removes these counties from the state low RVP program.
During the 2019 Quadrennial review of Chapter 114, staff identified definitions that are no longer necessary. The obsolete definitions were associated with repealed agency programs and are not used in or applicable to current rules in Chapter 114. The adopted revisions remove these obsolete definitions.
Demonstrating Noninterference under Federal Clean Air Act, §110(l)
Under FCAA, §110(l), the EPA cannot approve a SIP revision if it would interfere with attainment of the NAAQS, reasonable further progress toward attainment, or any other applicable requirement of the FCAA. The commission provides the following information to demonstrate why the adopted changes to the I/M program rules and low RVP requirements in Chapter 114 will not: negatively impact the status of the state's progress towards attainment, interfere with control measures, or prevent reasonable further progress toward attainment of the ozone NAAQS.
The adopted amendments to Chapter 114 revise 30 TAC Chapter 114, Subchapters A and C to add program-related definitions, identify vehicles in Bexar County that will be subject to vehicle emissions inspections, require emissions inspection stations in Bexar County to offer the on-board diagnostics (OBD) test approved by the EPA, and establish the maximum fee that Bexar County emissions inspection stations may charge for the OBD test. Additional details regarding the adopted Bexar County I/M program are discussed in the Bexar County I/M SIP revision (Project No. 2022-027-SIP-NR), adopted concurrently with this rulemaking. These amendments do not affect the EPA-approved I/M program requirements for other areas, and the adopted requirements for the Bexar County I/M program meet EPA requirements for implementing an I/M program for moderate ozone nonattainment areas. Therefore, the adopted rulemaking will not negatively impact the state's progress towards attainment of the 2008 and 2015 eight-hour ozone NAAQS.
The adopted amendments to Chapter 114 also modify administrative aspects of 30 TAC Chapter 114, Subchapter H to remove Ellis, Johnson, Kaufman, Parker, Rockwall, and Wise Counties from the list of affected counties required to comply with the state's low RVP control requirements. The removal of these six counties from the state low RVP program will not interfere with attainment or maintenance of the NAAQS for the DFW area due to implementation of federal RFG requirements, which are more stringent than the state rules. The Chapter 114 low RVP program requires a maximum gasoline RVP of no greater than 7.8 pounds per square inch (psi) and has a seasonal applicability, the specific time period of the summer ozone season. The federal RFG program controls more components of gasoline as well as requiring a lower RVP for gasoline and has no seasonal limitations. The adopted revisions will not negatively impact the state's progress towards attainment of the 2008 and 2015 eight-hour ozone NAAQS.
Section by Section Discussion
The amendments to Chapter 114 revise 30 TAC Chapter 114, Subchapters A and C to repeal obsolete definitions and revise the I/M program rules to provide for implementation of the Bexar County program. The amendments also revise 30 TAC Chapter 114, Subchapter H to remove Ellis, Johnson, Kaufman, Parker, Rockwall, and Wise Counties from the list of affected counties required to comply with the state's low RVP control requirements.
The commission also adopts non-substantive changes to update the rules in accordance with current Texas Register style and format requirements, improve readability, establish consistency in the rules, remove outdated definitions identified during the Quadrennial review, and conform to the standards in the Texas Legislative Council Drafting Manual, September 2020. These non-substantive changes are not intended to alter the existing rule requirements in any way and may not be specifically discussed in this preamble.
Subchapter A: Definitions
§114.1. Definitions
The revisions remove obsolete definitions in this section that were identified during the 2019 Quadrennial review of Chapter 114 and have been reaffirmed by staff as no longer necessary and updated the mail code in the Texas Inspection and Maintenance State Implementation Plan definition to MC 206 from MC 166 as included in the proposed rulemaking. The obsolete definitions were associated with repealed agency programs and are not used in or applicable to current rules in Chapter 114. The definitions removed are: Heavy-duty vehicle, Inherently low emission vehicle, Light-duty vehicle, Loaded mode inspection and maintenance test, Low emission vehicle, Mass transit authority, Reformulated gasoline, Tier I federal emission standards, Ultra low emission vehicle, and Zero emission vehicle. The remaining definitions are renumbered as appropriate.
§114.2. Inspection and Maintenance Definitions
The revisions add new language under the definition for Program area in §114.2(10) to reflect that the new Bexar County program area consists of Bexar County.
Subchapter C: Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program; and Early Action Compact Counties
Division 1: Vehicle Inspection and Maintenance
§114.50. Vehicle Emissions Inspection Requirements
The revisions to §114.50(a) add new paragraph (5) to specify the program start dates, specify the model year vehicles in the Bexar County program area to be tested, and that all vehicle emissions testing stations must offer OBD tests. The new subparagraph (A) requires all Bexar County vehicles subject to I/M program requirements to receive the EPA-approved OBD test beginning November 1, 2026. The new subparagraph (B) requires all vehicle emissions inspection stations in the Bexar County program area to offer the OBD test.
The revisions to §114.50(b) amend paragraphs (1), (3), and (6) by adding the Bexar County program area to the list of program areas subject to the control requirements of the subsection.
§114.53. Inspection and Maintenance Fees
The revision to §114.53(a) adds a new paragraph (4) to establish the maximum fee of $18.50 that Bexar County program area emissions inspection stations may charge for the OBD test. In 2020, TCEQ commissioned a study to help prepare for the future implementation of an I/M program in Bexar County. The Bexar County Inspection and Maintenance Program Study Final Report (Bexar County I/M Study) is available at https://wayback.archive-it.org/414/20210528194434/https://www.tceq.texas.gov/assets/public/implementation/air/ms/IM/2020%20Bexar%20County%20IM%20Prog%20Study%20Report.pdf. The Bexar County I/M Study recommended a fee between $18 and $22. The Commission adopts a fee of $18.50, as the Commission finds that this amount is comparable to the existing OBD fee in the Houston-Galveston-Brazoria and Dallas-Fort Worth program areas, and this amount is also consistent with the Bexar County I/M Study's recommendation. The revision does not include provisions for the Bexar County program area to participate in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), which has not been funded since 2017 and all participating counties have opted out of the LIRAP. If TCEQ is reappropriated funding in the future to implement LIRAP or a similar program, TCEQ will initiate rulemaking to designate that Bexar County is eligible to participate effective upon the start date of the I/M program. The revision to §114.53(d)(4) adds a new paragraph that requires affected vehicle owners to remit $2.50 to the Department of Motor Vehicles (DMV) or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee to cover the costs to implement, maintain, administer, and enforce the required vehicle I/M program in Bexar County.
Subchapter H: Low Emission Fuels
Division 1: Gasoline Volatility
§114.309. Affected Counties
The revisions remove Ellis, Johnson, Kaufman, Parker, Rockwall, and Wise Counties from the list of affected counties required to comply with the state's low RVP control requirements. These six counties are subject to the federal RFG program as of November 7, 2023, prior to the anticipated effective date of this rulemaking, if adopted. Federal RFG program requirements are more stringent, and exempting these counties from the state low-RVP rules eliminates unnecessary overlapping state requirements.
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking considering the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted rulemaking does not meet the definition of a "Major Environmental Rule" as defined in that statute, and in addition, if it did meet the definition, will not be subject to the requirement to prepare a regulatory impact analysis. A "Major Environmental Rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Additionally, the adopted rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Tex. Gov't Code Ann., §2001.0225(a). Tex. Gov't Code Ann., §2001.0225 applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.
The adopted rulemaking's purpose is to implement the required vehicle I/M program in Bexar County and to remove certain counties in the DFW area from the state low RVP program since they will be subject to the federal RFG rules as of November 7, 2023. These changes are necessary to comply with federal requirements for the implementation of vehicle I/M programs required by 42 United States Code (U.S.C.) §7511a(a), FCAA, §182(b) for the Bexar County 2015 eight-hour ozone nonattainment area and to remove counties in the DFW 2008 eight-hour ozone severe nonattainment area from the state low RVP program that will become subject to requirements for RFG as required by 42 U.S.C. §7545, FCAA, §211(k)(10)(D). The requirement to implement and enforce vehicle I/M programs is specifically required for certain nonattainment areas by the FCAA, and the adopted revisions to 30 TAC Chapter 114 are anticipated to be used as a control strategy for demonstrating attainment of the 2015 eight-hour ozone NAAQS upon implementation of the program in the Bexar County area.
The adopted rulemaking implements requirements of 42 U.S.C. §7410, FCAA, §110, which requires states to adopt a SIP that provides for the implementation, maintenance, and enforcement of the NAAQS in each air quality control region of the state; as well as the removal of counties from the existing state low RVP program that will become subject to the requirements of the 42 U.S.C. §7545, FCAA, §211(k)(10)(D), as discussed elsewhere in this preamble. While 42 U.S.C. §7410, FCAA, §110 generally does not require specific programs, methods, or reductions in order to meet the standard, vehicle I/M programs are specifically required by the FCAA, as are the requirements for federal RFG for severe ozone nonattainment areas. The SIP must also include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of the FCAA. The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS, and when programs are specifically required, states may implement them with flexibility allowed under the statute and EPA rules. This flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 U.S.C. §7410, FCAA, §110; nor does it allow states to ignore specific requirements of the FCAA. States are not free to ignore the requirements of 42 U.S.C. §7410, FCAA, §110 and must develop programs to assure that their contributions to nonattainment areas are reduced so that these areas can be brought into attainment on the schedule prescribed by the FCAA.
If a state does not comply with its obligations under 42 U.S.C., §7410, FCAA, §110 to submit SIPs that comply with the requirements of the FCAA, states are subject to discretionary sanctions under 42 U.S.C., §7410(m), FCAA, §110(m) or mandatory sanctions under 42 U.S.C., §7509, FCAA, §179 as well as the imposition of a FIP under 42 U.S.C., §7410, FCAA, §110(c).
As discussed earlier in this preamble, states are required to adopt SIPs with enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the FCAA. As discussed in the FISCAL NOTE portion of the preamble to the proposed rule, the adopted rules are not anticipated to add any significant additional costs to affected individuals or businesses beyond what is necessary to attain the 2015 eight-hour ozone NAAQS, comply with the specific requirements for vehicle I/M programs, or 42 U.S.C. §7545, FCAA, §211(k)(10)(D) on the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. No comments were received.
The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislative Session. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement will seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.
As discussed earlier in this preamble, the FCAA does not always require specific programs, methods, or reductions in order to meet the NAAQS, but vehicle I/M programs are specifically required by the FCAA for moderate nonattainment areas, as are the requirements for federal RFG for severe ozone nonattainment areas; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet the required attainment deadlines and comply with EPA requirements for vehicle I/M programs and the federal RFG program. Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule proposed by the commission to meet a federal requirement was considered to be a major environmental rule that exceeds federal law, then each of those rules would require the full regulatory impact analysis (RIA) contemplated by SB 633. Requiring a full RIA for all federally required rules is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, then the intent of SB 633 is presumed to only to require the full RIA for rules that are extraordinary in nature. While the adopted rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA and creates no additional impacts since the rules do not impose burdens greater than required to demonstrate attainment of the 2015 eight-hour ozone NAAQS and comply with the requirements for vehicle I/M programs and the federal RFG program as discussed elsewhere in this preamble.
For these reasons, the adopted rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).) The commission's interpretation of the RIA requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §2001.0225 as subject to this standard.
As discussed in this analysis and elsewhere in this preamble, the commission has substantially complied with the requirements of Texas Government Code, §2001.0225. The adopted rules implement the requirements of the FCAA as discussed in this analysis and elsewhere in this preamble. The adopted rules were determined to comply with requirements for vehicle I/M programs and federal RFG requirements and will not exceed any standard set by state or federal law. These adopted rules are not an express requirement of state law. The adopted rules do not exceed a requirement of a delegation agreement or a contract between state and federal government, as the rules, if adopted by the commission and approved by EPA, will become federal law as part of the approved SIP required by 42 U.S.C., §7410, FCAA, §110. The adopted rules were not developed solely under the general powers of the agency but are authorized by specific sections of Texas Health and Safety Code (THSC), Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.011, 382.012, and 382.017. Therefore, this rulemaking adoption is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received.
Takings Impact Assessment
Under Texas Government Code, §2007.002(5), taking means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.
The commission completed a takings impact analysis for the adopted rulemaking action under the Texas Government Code, Chapter 2007. The primary purpose of this adopted rulemaking, as discussed elsewhere in this preamble, is to meet federal requirements for the implementation of vehicle I/M programs and removal of the six specified counties from the state low RVP program since they will become subject to the federal RFG program one year after reclassification to severe for the 2008 eight-hour ozone NAAQS. Therefore, Chapter 2007 does not apply to this adopted rulemaking because it is an action reasonably taken to fulfill an obligation mandated by federal law, as provided by Texas Government Code, §2007.003(b)(4).
As discussed elsewhere in this preamble, the adopted rulemaking implements requirements of the FCAA, 42 U.S.C., §7410, FCAA, §110 which requires states to adopt a SIP that provides for the implementation, maintenance, and enforcement of the NAAQS in each air quality control region of the state. While 42 U.S.C., §7410, FCAA, §110 generally does not require specific programs, methods, or reductions in order to meet the standard, vehicle I/M programs and federal RFG are specifically required by the FCAA. The SIP must include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of the FCAA. The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 U.S.C., §7410, FCAA, §110. States are not free to ignore the requirements of 42 U.S.C., §7410, FCAA, §110 and must develop programs to assure that nonattainment areas can be brought into attainment on the schedule prescribed by the FCAA.
States are required to adopt SIPs with enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the FCAA. If a state does not comply with its obligations under 42 U.S.C., §7410, FCAA, §110 to submit SIPs that meet the requirements of the FCAA, states are subject to discretionary sanctions under 42 U.S.C., §7410(m) or mandatory sanctions under 42 U.S.C., §7509, FCAA, §179; as well as the imposition of a FIP under 42 U.S.C., §7410, FCAA, §110(c).
The adopted rulemaking will not create any additional burden on private real property beyond what is required under federal law, as the rules, if adopted by the commission and approved by EPA, will become federal law as part of the approved SIP required by 42 U.S.C., §7410, FCAA, §110. The rules will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adopted rulemaking will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the adopted rulemaking will not cause a taking under Texas Government Code, Chapter 2007. For these reasons, Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking.
Consistency with the Coastal Management Program
The commission reviewed the adopted rulemaking and found the rulemaking is identified in the Coastal Coordination Act Implementation Rules, 31 TAC §29.11(b)(2) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.
Note: §505.11(b)(2) applies only to air pollutant emissions, on-site sewage disposal systems, and underground storage tanks. §505.11(b)(4) applies to all other actions. The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Advisory Committee and determined that the rulemaking will not affect any coastal natural resource areas because the rules only affect counties outside the CMP area and is, therefore, consistent with CMP goals and policies.
The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.
Public Comment
The commission offered a public hearing on July 6, 2023 at 7:00 p.m. in Arlington, Texas for the state RVP program, but no attendees registered to make comments on the record, so the public hearing was not opened. The commission held a public hearing on July 13, 2023 at 7:00 p.m. for the Bexar County I/M program in San Antonio, Texas, and testimony was received and transcribed for the record. The comment period closed on July 17, 2023. No comments were received regarding the removal of the six DFW area counties from the state low RVP program. Oral and/or written comments on the Bexar County I/M program proposal were received from the following: Alamo Area Council of Governments (AACOG); EPA Region 6; Official Inspection Station (OIS); Rema Investment Group, LLC (RIE); San Antonio Auto Service, LLC (SAAS); Texas State Inspection Association (TSIA); and 16 individuals. After the comment period closed, Texas Department of Public Safety (DPS) submitted a letter to TCEQ regarding the timeline for Bexar County vehicle emissions inspection implementation, which was added to the comments received for commission consideration on this SIP revision. Comments were received concerning the maximum fees set for individual emissions inspections in Bexar County as well as the other I/M counties in Texas. Comments were also received concerning the timing of the proposed start of the I/M program in Bexar County, TCEQ's outreach efforts associated with implementing I/M in Bexar County, and the end of the state's safety inspection program.
Response to Comments
Comment
RIE, SAAS, and two individuals stated that they were in support of the proposal to implement I/M in Bexar County. AACOG expressed thanks to the TCEQ for holding the public hearing in San Antonio to provide residents an opportunity to testify on the proposal. OIS offered that committee hearings should not be timed or censored and commented that the rule comment period should be extended to allow DPS to hold information meetings in which inspectors and automotive store owners may participate.
Response
The commission appreciates support for the proposed rulemaking and public hearing. The commission complied with all applicable public notice and rulemaking requirements for this rulemaking: (Texas Government Code, Subchapter B, Chapter 2001; Texas Clean Air Act, THSC, §382.017; Texas Water Code, §5.103; 30 TAC Chapter 20; and 40 CFR §51.102). The comment period lasted for 45 days, longer than the required 30 days. The commission applied a time limit for providing oral testimony at its July 13, 2023 public hearing to allow as many potential attendees to participate as possible. No word limit was applied to written comments, which were accepted during the entire 45-day comment period. DPS's outreach efforts are beyond the scope this rulemaking. No changes were made in response to this comment.
Comment
AACOG commented that because San Antonio is a poor city, elected officials are concerned about the impact the emissions inspection fee will have on residents. AACOG thanked TCEQ for including Bexar County elected officials in its outreach efforts and for listening to their concerns.
OIS commented that industry representatives should be notified about information meetings and allowed to provide input. OIS pointed out that the public information meetings held during development of the proposed rulemaking were scheduled for the middle of the workday and were poorly attended by shop owners. OIS noted that no in-person townhall meetings were offered, which was part of the process for previous I/M implementation. Without in-person townhall meetings, OIS stated, industry representatives are unable to participate in an open dialogue on the topic or to provide input, and elected officials do not have the opportunity to hear their input. Not providing an opportunity for elected officials to hear industry's perspective allows them to conclude that industry is supportive of the plan.
Response
The commission appreciates the support for its outreach efforts related to this rulemaking as well the comments suggesting additional outreach. For this rulemaking, the commission was required to offer a public hearing, which it did on July 13, 2023. Prior to that hearing, TCEQ provided information on I/M implementation in Bexar County at meetings held throughout development of this rulemaking. TCEQ presented on I/M implementation planning at a San Antonio Air Quality Technical Information Meeting on August 16, 2021, which was open to the public, and again at a November 8, 2022 meeting of the TSIA. TCEQ then held a public information meeting on January 17, 2023 that was targeted at Bexar County stakeholders. For that meeting, TCEQ contacted area elected officials, TSIA, Texas Clean Air Working Group, regional planning authorities in all of the areas in the state that implement I/M, the Bexar County Environmental Services Department, and the City of San Antonio Metropolitan Health District to invite their representatives to the meeting. Additionally, notice of the meeting was distributed as a bulletin to inspection machines statewide and shared through GovDelivery, TCEQ's Public Information Meeting on the Expansion of Vehicle Inspection and Maintenance (I/M) to Bexar County webpage, which was created for the meeting, and the events calendar on the TCEQ's homepage. The public information meeting was held virtually to maximize attendance, and time was set aside to receive input and questions from attendees.
No changes were made in response to this comment.
Comment
AACOG, SAAS, OIS, TSIA, REI, and 13 individuals provided input on the maximum fees set for individual emissions inspections in Texas, with OIS and one individual providing similar input in written comments and oral testimony at the public hearing. AACOG, TSIA, OIS, and four individuals specifically commented on the proposed maximum fee of $11.50 for Bexar County, with AACOG commenting that the low fee is welcome because it will provide relief for the area's low-income drivers. TSIA, OIS, and the four individuals commented that the proposed fee for Bexar County is too low. Three individuals commented that they owned inspections stations that would close if the fee were not increased. One individual stated they were a station owner in a neighboring county and, though they were unsure whether they would be part of the program, they would not consider conducting emissions inspections if the maximum fee were $11.50.
RIE, SAAS, OIS, TSIA, and 13 individuals commented on the I/M fee in general, all stating that the maximum fee should be increased, and RIE, SAAS, TSIA, and nine of those individuals recommended fees ranging from $22 to $40. OIS, TSIA, and nine individuals expressed concern that the proposed maximum inspection fee will not cover the costs associated with conducting the inspections. One individual commented that the previous TCEQ inspection fee survey indicated that the current fee rates are inadequate. The same individual indicated they participated in multiple inspection fee surveys and claimed that Texas has the lowest inspection fee in the United States.
OIS and two individuals commented on the consequences of not setting an adequate fee for emissions inspections in Texas. OIS and one individual warned that stations would stop offering inspections, which would lead to longer wait times and frustrated vehicle owners. One individual went on to describe a scenario in which inspection stations close on January 1, 2025, the end date for state vehicle safety inspections, and the long lines and angry vehicle owners result in negative media coverage holding TCEQ accountable for the situation. The individual indicated that the described outcome can be avoided by increasing the emissions inspection fee for all counties in the I/M program.
Response
The commission adopts a maximum vehicle emissions inspection fee of $18.50 for the Bexar County I/M program. This amount was changed from the proposed fee of $11.50. The adopted fee of $18.50 for Bexar County is comparable to the maximum OBD fee of $18.50 for the Houston-Galveston-Brazoria (HGB) and Dallas-Fort-Worth (DFW) program areas. This amount is also consistent with the Bexar County I/M Study that recommended an OBD fee for all program areas between $18 and $22. The Bexar County I/M Study is available at: https://wayback.archive-it.org/414/20210528194434/https://www.tceq.texas.gov/assets/public/implementation/air/ms/IM/2020%20Bexar%20County%20IM%20Prog%20Study%20Report.pdf.
Under THSC, §382.202(f), the commission is required to review the vehicle emissions fee for the I/M program every two years. The next fee study is planned for Fiscal Year 2024. The upcoming study will include a review of changes in costs associated with conducting emissions inspections and could include a review of fees in other states. If additional changes are determined to be necessary, rulemaking could be recommended for the commission's consideration.
Comment
AACOG, OIS, TSIA, and two individuals referenced TCEQ's biennial fee analysis studies to assesses the adequacy of the vehicle emissions inspection fee. In addition to the 2020 fee study, TCEQ conducted a separate program study to explore the efforts needed to implement I/M in Bexar County (Bexar County I/M Study). AACOG, OIS, TSIA, and the individuals referenced the proposed fee of $11.50 in comparison to the 2020 studies' recommendations. AACOG supported the decision, and OIS, TSIA, and the two individuals disagreed with it.
Response
The commission adopts a maximum vehicle emissions inspection fee of $18.50 for the Bexar County I/M program. As mentioned above, this amount was changed from the proposed fee of $11.50 and is comparable to the maximum OBD fee of $18.50 for the HGB and DFW program areas. The adopted fee of $18.50 is also consistent with the Bexar County I/M Study that recommended a fee between $18 and $22. As previously mentioned, the 2024 fee study will specifically consider whether fees in all program areas, including Bexar County, should be changed in light of the elimination of the vehicle safety inspection program.
The commission appreciates previous participation and looks forward to continued participation in studies regarding the vehicle emissions inspection fee.
Comment
OIS commented that TCEQ is not statutorily required to set a price for emissions testing and that doing so enables potential legal action. OIS suggested that inspection stations be allowed to set their own fees and that specific signage could be prominently displayed for public view indicating the inspection fee at each station.
Response
Emissions inspection fee authority is granted to the commission under Tex. Health & Safety Code (THSC), §382.202. While the statute provides some discretionary authority, the intent of the legislature is clear that the commission exercise authority to set emission inspection fees.
Additionally, since states are required under federal regulations to demonstrate adequate resources to implement their inspection and maintenance programs, and since Texas chose to implement a decentralized emission testing program, the commission's predecessor agencies submitted its fee authority and the fee rules to the EPA as part of its demonstration that the program would have adequate resources for implementation. EPA published approval of the Texas enhanced inspection and maintenance program, including the fees and resource demonstration, on November 14, 2001 (66 FR 57261). That approval made TCEQ's fee authority federally enforceable. No changes were made in response to this comment.
Comment
TSIA and 10 individuals commented in support of increasing the inspection fee in various counties other than Bexar County or statewide. One of these individuals commented that there is a significant demand for inspections compared to available inspection stations and without a fee increase, a significant amount of current stations, including three of their own, will close, making it harder for consumers to inspect and register their vehicles. The same individual commented that the higher fees charged in Dallas and Houston are allowing some stations to offer discounts in those areas, so supply and demand are more in balance at a $25.50 fee.
Response
Revising the maximum vehicle emissions inspection fee charged by stations outside of Bexar County is beyond the scope of this rulemaking. No change was made in response to this comment.
Comment
OIS commented that TCEQ plans on eliminating 50% of inspection stations, recommending only 458 locations for Bexar County, which would cause motorists to drive further to locate an inspection station and wait four times as long.
Response
The commission does not set the number of inspection stations in emissions testing areas. A Bexar County I/M Study suggested that the county would need approximately 458 inspection stations to adequately test the vehicle fleet for an I/M program. No change was made in response to this comment.
Comment
OIS and four individuals provided comments against the end of state safety inspections for noncommercial vehicles. One individual station owner stated their business would close, and OIS commented that the inspection industry will be dismantled when safety inspections end in 2025. An individual station owner offered that their customers are concerned that ending the safety inspection program will result in more cars being left alongside the road, and another individual commented that the safety inspection program helps avoid accidents. That individual went on to suggest that organizations should protest the statutory repeal of the program and keep roads and air safe.
One individual commented that the safety inspection program has contributed to Texas' greatness for 70 years. Another individual conveyed that inspection customers are frustrated by the current system and suggested that the answer is to improve it by modernizing and streamlining the testing process. The same individual provided an example suggestion of eliminating the emergency brake system test.
Response
These comments are outside the scope of this rulemaking, which addresses requirements in the FCAA and 40 CFR Part 51, as amended, to implement a basic vehicle emissions I/M program in the Bexar County 2015 ozone NAAQS nonattainment area. This program is separate from the state's vehicle safety inspection program that will end on January 1, 2025 as a result of HB 3297, 88th Texas Legislature, Regular Session. No changes were made in response to this comment.
Comment
Comments were received from AACOG, DPS, OIS, TSIA, and two individuals concerning the proposed start of I/M in Bexar County, November 1, 2026. AACOG commented that it was critical to have as much time as possible to disseminate information about and to implement the program due to the planned end of state safety inspections on January 1, 2025. DPS suggested a start date of January 1, 2025 for vehicle emissions inspections in Bexar County to align with the end of non-commercial safety inspections. DPS commented that safety-only vehicle inspection stations will close and exit the program before January 1, 2025, creating a shortage of available stations when the emissions inspection program begins in 2026. DPS also commented that the proposed start date of November 1, 2026 would potentially have a negative impact on existing safety stations, the process of closing inspection stations to then open up new stations several months later would be a significant increase in workload for the agency, and that the complexity of educating citizens on the inspection process for the next three years could cause significant confusion. OIS, TSIA, and an individual commented that starting I/M on the proposed date of November 1, 2026 would leave an inspections gap once safety inspections end that would be difficult for stations to endure financially. OIS and TSIA commented that the Bexar County I/M start date should be as close to the end date for safety inspections as possible. OIS went on to comment that there is no statutory requirement or mandate requiring TCEQ to establish a specific start date for I/M in Bexar County, including the proposed November 1, 2026 start date. OIS stated that TCEQ may choose to implement I/M in Bexar County starting January 1, 2025, eliminating the inspections gap, which would preserve the workforce, clean the air, and save lives. OIS added that San Antonio is a poor city but a growing city with poor air quality that needs to be cleaned up.
Response
Under the FCAA, §182(i), states generally must meet new requirements associated with a reclassification according to the schedules prescribed in connection with such requirements. The I/M rules in 40 CFR Part 51, Subpart S allow areas newly required to establish programs up to four years after the effective date of reclassification, 40 CFR §§51.373(b), 51.352(c) and (e)(2). In its final reclassification rule published October 7, 2022 (87 FR 60897), EPA also took comment on, and established, the I/M program implementation deadline of no later than four years after the effective date of reclassification (November 7, 2026). The commission adopts this rulemaking with its proposed November 1, 2026 start date to ensure adequate time for delivery and setup of vehicle emissions inspection equipment and to work with partner agencies to develop and implement a public awareness plan. The commission is aware that the end of state safety inspections will occur before I/M starts in Bexar County and will work with DPS on the transition from safety-only inspections to emissions and commercial safety inspections. No changes were made in response to this comment.
Comment
The EPA requested that TCEQ review opportunities to incorporate environmental justice (EJ) considerations adequately and appropriately into SIP revisions. The EPA encouraged the TCEQ to screen SIP revisions for EJ concerns and consider civil rights issues for potentially impacted communities early in the SIP revision process. The EPA recommended utilizing EJScreen and knowledge of the impacted area. The EPA expressed that the TCEQ should consider whether pollution sources contribute to community risk.
Response
The purpose of this rulemaking is to implement I/M and set the testing fee applicable in Bexar County in accordance with EPA's guidance and FCAA requirements. TCEQ followed all relevant federal and state statutes, regulations, and guidance in the development of this rulemaking for the Bexar County nonattainment area.
This rulemaking is not the appropriate mechanism to address EJ issues. No federal or state statute, regulation, or guidance provides a process for evaluating or considering the socioeconomic or racial status of communities within an ozone nonattainment area. In a recent proposed approval of a TCEQ submittal for El Paso County, which did not include an EJ evaluation, EPA stated that the FCAA "and applicable implementing regulations neither prohibit nor require such an evaluation" (88 FR 14103). TCEQ continues to be committed to protecting Texas' environment and the health of its citizens regardless of location.
While EPA may encourage states to utilize EJScreen in rulemaking actions, it is not necessary, because the NAAQS are protective of all populations. If the NAAQS are not sufficient to protect public health, it is incumbent upon EPA to revise the NAAQS.
This rulemaking was developed in compliance with the policies and guidance delineated in TCEQ's Language Access Plan (LAP) and TCEQ's Public Participation Plan (PPP). The LAP helps ensure individuals with limited English proficiency may meaningfully access TCEQ programs, activities, and services in a timely and effective manner; and the PPP identifies the methods by which TCEQ interacts with the public, provides guidance and best practices for ensuring meaningful public participation in TCEQ activities, and highlights opportunities for enhancing public involvement in TCEQ activities and programs.
TCEQ translated the Plain Language Summaries, GovDelivery notices, Public Hearing notices, and SIP Hot Topics notices into Spanish for all projects. Newspaper publications were also in Spanish. Additionally, two Spanish translators were available at all hearings, and the notices included a statement that Spanish translation would be available at each hearing.
No changes were made in response to these comments.
SUBCHAPTER A. DEFINITIONS
Statutory Authority
The expansion of the vehicle I/M program to Bexar County is adopted under the authority of Texas Water Code (TWC), §5.103, concerning Rules; TWC, §5.105, concerning General Policy, which authorize the commission to carry out its powers and duties under the TWC; TWC, §7.002, concerning Enforcement Authority, which authorizes the commission to enforce the provisions of the Water Code and the Health and Safety Code within the commission's jurisdiction; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act (TCAA).
The expansion of the vehicle I/M program to Bexar County is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air and THSC, §382.012, concerning State Air Control Plan, which authorizes of the commission to prepare and develop a general, comprehensive plan for the control of the state's air. Additionally, the expansion of the vehicle I/M program to Bexar County is authorized under THSC, §382.201, concerning Definitions, which specifies the definitions that apply under Subchapter G of the THSC, Vehicle Emissions; THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish, implement, and administer a program requiring emissions-related inspections of motor vehicles to be performed at inspection facilities consistent with the requirements of the federal Clean Air Act; THSC, §382.203, concerning Vehicles Subject to Program; Exemptions, which establishes which vehicles are subject to the I/M program and which are exempt from it; and THSC, §382.205, concerning Inspection Equipment and Procedures, which authorizes the commission to adopt standards and specifications for motor vehicle emissions testing equipment, recordkeeping and reporting procedures, and measurable emissions standards, as well as consult with the Department of Public Safety of the State of Texas.
The adopted rules implement TWC, §§5.103, 5.105, and 7.002; and THSC, §§382.002, 382.011, 382.012, 382.017, 382.201-382.203, and 382.205.
§114.1.Definitions.
Unless specifically defined in Texas Health and Safety Code, Chapter 382, also known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Dual-fuel vehicle--Any motor vehicle or motor vehicle engine engineered and designed to be operated on two different fuels, but not a mixture of the two.
(2) Emergency vehicle--A vehicle defined as an authorized emergency vehicle according to Texas Transportation Code, §541.201(1).
(3) Emissions--The emissions of oxides of nitrogen, volatile organic compounds, carbon monoxide, particulate, or any combination of these substances.
(4) First safety inspection certificate--Initial Texas Department of Public Safety (DPS) certificates issued through DPS-certified inspection stations for every new vehicle found to be in compliance with the rules and regulations governing safety inspections. Beginning on the single sticker transition date as defined in this section, the safety inspection certificates will no longer be used.
(5) First vehicle registration--Initial vehicle registration insignia sticker issued through the Texas Department of Motor Vehicles for every new vehicle found to be in compliance with the rules and regulations governing vehicle registration prior to the single sticker transition date as defined in this section and vehicle registration and safety inspections beginning on the single sticker transition date.
(6) Gross vehicle weight rating--The value specified by the manufacturer as the maximum design loaded weight of a vehicle. This is the weight as expressed on the vehicle's registration and includes the weight the vehicle can carry or draw.
(7) Law enforcement vehicle--Any vehicle controlled by a local government and primarily operated by a civilian or military police officer or sheriff, or by state highway patrols, or other similar law enforcement agencies, and used for the purpose of law enforcement activities including, but not limited to, chase, apprehension, surveillance, or patrol of people engaged in or potentially engaged in unlawful activities.
(8) Single sticker transition date--The transition date of the single sticker system is the later of March 1, 2015, or the date that the Texas Department of Motor Vehicles and the Texas Department of Public Safety concurrently implement the single sticker system required by Texas Transportation Code, §502.047.
(9) Texas Inspection and Maintenance State Implementation Plan--The portion of the Texas state implementation plan that includes the procedures and requirements of the vehicle emissions inspection and maintenance program as adopted by the commission and approved by the EPA. A copy of the Texas Inspection and Maintenance State Implementation Plan is available at the Texas Commission on Environmental Quality, 12100 Park 35 Circle, Austin, Texas, 78753; mailing address: P.O. Box 13087, MC 206, Austin, Texas 78711-3087.
(10) Vehicle registration--Vehicle characteristics, corresponding owner information, and registration expiration date contained in the Texas Department of Motor Vehicles registration system.
(11) Vehicle registration insignia sticker--The sticker issued through the Texas Department of Motor Vehicles (DMV) or county tax assessor-collector for a vehicle compliant with the DMV regulations. Beginning on the single sticker transition date as defined in this section, the vehicle registration insignia sticker, a current valid VIR, or other form of proof authorized by the DPS or the DMV will be used as proof of compliance with inspection and maintenance program requirements, the DMV's rules and regulations governing vehicle registration, and the Texas Department of Public Safety's rules and regulations governing safety inspections.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 1, 2023.
TRD-202304417
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 21, 2023
Proposal publication date: June 16, 2023
For further information, please call: (512) 239-6087
DIVISION 1. VEHICLE INSPECTION AND MAINTENANCE
Statutory Authority
The expansion of vehicle I/M program to Bexar County is adopted under the authority of Texas Water Code (TWC), §5.103, concerning Rules; TWC, §5.105, concerning General Policy, which authorize the commission to carry out its powers and duties under the TWC; TWC, §.7.002, concerning Enforcement Authority, which authorizes the commission to enforce the provisions of the Water Code and the Health and Safety Code within the commission's jurisdiction; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act.
The expansion of vehicle I/M to Bexar County is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes of the commission to prepare and develop a general, comprehensive plan for the control of the state's air. Additionally, the expansion of vehicle I/M to Bexar County is authorized under THSC, §382.201, concerning Definitions, which specifies the definitions that apply under Subchapter G of the THSC, Vehicle Emissions; THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish, implement, and administer a program requiring emissions-related inspections of motor vehicles to be performed at inspection facilities consistent with the requirements of the federal Clean Air Act; THSC, §382.203, concerning Vehicles Subject to Program; Exemptions, which establishes which vehicles are subject to the I/M program and which are exempt from it; THSC, §382.204, concerning Remote Sensing Program Component, which requires the commission and the Department of Public Safety (DPS) to develop an enforcement program that includes a remote sensing component; THSC, §382.205, concerning Inspection Equipment and Procedures, which authorizes the commission to adopt standards and specifications for motor vehicle emissions testing equipment, recordkeeping and reporting procedures, and measurable emissions standards, as well as consult with the DPS; THSC, §382.206, Collection of Data; Report, which authorizes the collection of information derived from the emissions inspection and maintenance program; THSC, §382.207, Inspection Stations; Quality Control Audits; which requires standards and procedures for inspection stations as well as other specifics relating to transportation planning and quality control auditing; THSC, §382.208, Attainment Program, which requires the commission to coordinate with federal, state, and local transportation planning agencies to develop and implement transportation programs and other measures necessary to demonstrate and maintain attainment; THSC, §382.209, Low-Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program, which authorizes the commission to establish and authorize the commissioners court of a participating county to implement a low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program; and THSC, §382.210, Implementation Guidelines and Assistance, which requires the commission to adopt guidelines to assist a participating county in implementing a low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program..
The adopted rules implement TWC, §§5.103, 5.105, and 7.002; and THSC, §§382.002, 382.011, 382.012, 382.017, 382.201-382.210.
§114.53.Inspection and Maintenance Fees.
(a) The following fees must be paid for an emissions inspection of a vehicle at an inspection station. This fee must include one free retest should the vehicle fail the emissions inspection provided that the motorist has the retest performed at the same station where the vehicle originally failed and submits, prior to the retest, a properly completed vehicle repair form showing that emissions-related repairs were performed and the retest is conducted within 15 days of the initial emissions test.
(1) In El Paso County beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 of this title (relating to Definitions), any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(4)(A), (B), or (C) of this title (relating to Vehicle Emissions Inspection Requirements) must collect a fee of $14 and remit $2.50 to the Texas Department of Public Safety (DPS). If the El Paso County Commissioners Court adopts a resolution that is approved by the commission to participate in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), the emissions inspection station in El Paso County must collect a fee of $16 and remit to the DPS $4.50 beginning upon the date specified by the commission and ending on the day before the single sticker transition date. Beginning on the single sticker transition date, any emissions inspection station in El Paso County required to conduct an emissions test in accordance with §114.50(a)(4)(A), (B), or (C) of this title must collect a fee not to exceed $11.50.
(2) In the Dallas-Fort Worth program area beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 of this title, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1)(A) or (B) of this title and in the extended Dallas-Fort Worth program area beginning May 1, 2003 and ending on the day before the single sticker transition date, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(2)(A) or (B) of this title must collect a fee not to exceed $27. Beginning May 1, 2002 and ending on the day before the single sticker transition date in the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, the emissions inspection station must remit to the DPS $2.50 for each acceleration simulation mode (ASM-2) test and $8.50 for each on-board diagnostics (OBD) test. Beginning on the single sticker transition date in the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1)(A) or (B) and (2)(A) or (B) of this title must collect a fee not to exceed $24.50 for each ASM-2 test and $18.50 for each OBD test.
(3) In the Houston-Galveston-Brazoria program area beginning May 1, 2002 and ending on the day before the single sticker transition date as defined in §114.1 of this title, any emissions inspection station in Harris County required to conduct an emissions test in accordance with §114.50(a)(3)(A) or (B) of this title and beginning May 1, 2003 and ending on the day before the single sticker transition date, any emissions inspection station in Brazoria, Fort Bend, Galveston, and Montgomery Counties required to conduct an emissions test in accordance with §114.50(a)(3)(D) or (E) of this title must collect a fee not to exceed $27. Beginning May 1, 2002 and ending on the day before the single sticker transition date in Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties, the emissions inspection station must remit to the DPS $2.50 for each ASM-2 test and $8.50 for each OBD test. Beginning on the single sticker transition date in Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties, any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(3)(A), (B), (D), or (E) of this title must collect a fee not to exceed $24.50 for each ASM-2 test and $18.50 for each OBD test.
(4) In the Bexar County program area beginning November 1, 2026, any emissions inspection station in Bexar County required to conduct an emissions test in accordance with §114.50(a)(5)(A) or (B) of this title must collect a fee not to exceed $18.50.
(b) The per-vehicle fee and the amount the inspection station remits to the DPS for a challenge test at an inspection station designated by the DPS, must be the same as the amounts set forth in subsection (a) of this section. The challenge fee must not be charged if the vehicle is retested within 15 days of the initial test.
(c) Inspection stations performing out-of-cycle vehicle emissions inspections for the state's remote sensing element must charge a motorist for an out-of-cycle emissions inspection in the amount specified in subsection (a) of this section resulting from written notification that subject vehicle failed on-road testing. If the vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the DPS.
(d) Beginning on the single sticker transition date as defined in §114.1 of this title, vehicle owners shall remit as part of the annual vehicle registration fee collected by the Texas Department of Motor Vehicles (DMV) or county tax assessor-collector the amount of the vehicle emissions inspection fee that is required to be remitted to the state.
(1) In El Paso County, the following requirements apply.
(A) If participating in the LIRAP, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions).
(B) If participating in the LIRAP and in the process of opting out, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
(C) If not participating in the LIRAP, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
(2) In the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, the following requirements apply.
(A) Vehicle owners in counties participating in the LIRAP shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title.
(B) Vehicle owners in counties participating in the LIRAP that are in the process of opting out shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
(C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
(3) In the Houston-Galveston-Brazoria program area, the following requirements apply.
(A) Vehicle owners in counties participating in the LIRAP shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title.
(B) Vehicle owners in counties participating in the LIRAP that are in the process of opting out shall remit $2.50 for motor vehicles subject to ASM-2 tests and $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
(C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
(4) In the Bexar County program area, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 1, 2023.
TRD-202304418
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 21, 2023
Proposal publication date: June 16, 2023
For further information, please call: (512) 239-6087
DIVISION 1. GASOLINE VOLATILITY
Statutory Authority
The removal of the six specified counties from the low Reid Vapor Pressure (LVP) program is adopted under the authority of Texas Water Code (TWC), §5.103, concerning Rules; TWC, §5.105, concerning General Policy, which authorizes the commission to carry out its powers and duties under the TWC; TWC, §7.002, concerning Enforcement Authority, which authorizes the commission to enforce the provisions of the Water Code and the Health and Safety Code within the commission's jurisdiction; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act.
The removal of the six specified counties from the low RVP program is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012 concerning State Air Control Plan, which authorizes of the commission to prepare and develop a general, comprehensive plan for the control of the state's air; and THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act.
The adopted rules implement TWC, §§5.103, 5.105, and 7.002; and THSC, §§382.002, 382.011, 382.012, and 382.017.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 1, 2023.
TRD-202304419
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 21, 2023
Proposal publication date: June 16, 2023
For further information, please call: (512) 239-6087
SUBCHAPTER D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS
30 TAC §§290.38, 290.39, 290.41 - 290.47
The Texas Commission on Environmental Quality (TCEQ) adopts amendments to 30 Texas Administrative Code (TAC) §§290.38, 290.39, and 290.41 - 290.47.
Amended §§290.38, 290.39, 290.41 - 290.44 and 290.47 are adopted without changes to the adopted text as published in the July 14, 2023, issue of the Texas Register (48 TexReg 3835) and, therefore, will not be republished. Amended §290.45 and §290.46 are adopted with changes to the adopted text as published in the July 14, 2023, issue of the Texas Register and, therefore, will be republished.
Background and Summary of the Factual Basis for the Adopted Rules
In 2021, the 87th Legislature passed Senate Bill (SB) 3, which relates to preparing for, preventing, and responding to weather emergencies and power outages. SB 3 requires that certain water service providers ensure emergency operations during an extended power outage. SB 3 amended Texas Water Code (TWC), Chapter 13, by adding §13.1394, Standards of Emergency Operations, and amending §13.1395, Standards of Emergency Operations in Certain Counties. New TWC, §13.1394, requires that affected utilities create an emergency preparedness plan that shows how an affected utility will provide emergency operations and submit that plan to the TCEQ for review and approval. TWC, §13.1394, stipulates that a water service provider must maintain 20 pounds per square inch (psi) of pressure, or a water pressure approved by the executive director, during power outages that last longer than 24 hours as soon as it is safe and practicable following a natural disaster. The statute also specifies that the TCEQ has 90 days to review the plan, once the plan is submitted, and either approve it or recommend changes. Once the TCEQ approves the plan the water service provider must operate in accordance with the plan and maintain any generators in accordance with manufacturer's specifications. TWC, §13.1394 also specifies that the TCEQ will conduct inspections to ensure compliance and that waivers to these requirements are available under certain circumstances. SB 3 stated in Section 36(b) that each affected utility was to submit to the TCEQ an emergency preparedness plan required by TWC, §13.1394, no later than March 1, 2022, and stated in 36(c) that the emergency preparedness plan was to be implemented no later than July 1, 2022, unless the affected utility had obtained an adjusted, TCEQ approved timeline.
Amended TWC, §13.1395, excludes from the requirement of creating an emergency preparedness plan those raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies pursuant to contract.
In response to the widespread power and equipment failures and drinking water outages and shortages during Winter Storm Uri in 2021, the TCEQ organized an after-action review to evaluate the factors that impacted public water systems across the state. This review resulted in findings and recommendations to enhance and integrate additional public water system critical infrastructure resiliency measures. These findings and recommendations were presented to the TCEQ during a work session, held on May 19, 2022.
Section by Section Discussion
§290.38, Definitions
The TCEQ adopts this rulemaking to add a definition to §290.38 for "accredited laboratory" to clarify the requirements for laboratories used to analyze drinking water samples for determination of compliance with maximum contaminant levels, actions levels, and microbial contaminants. This adopted change corresponds to the definition of "certified laboratory" in §290.38(12), which indicates that laboratories must be accredited, rather than certified, after June 30, 2008. Laboratory accreditation is issued by the TCEQ under Texas Water Code, Chapter 5, Subchapter R, and its associated TCEQ rules.
The TCEQ adopts this rulemaking to add a definition to §290.38 for "adverse weather conditions". This adopted change is a recommendation which resulted from the after-action review findings.
The TCEQ adopts this rulemaking to amend the definition of "affected utility" by adding language to encompass the definitions of affected utility in TWC, §13.1394 and §13.1395. The TCEQ adopts these amendments to reflect the requirements of TWC, §13.1394(a)(1) and §13.1395(a)(1).
The TCEQ adopts this rulemaking to amend the definition of "approved laboratory" to clarify that laboratory approval is required for determining compliance with treatment technique requirements in addition to maximum or minimum allowable constituent levels currently stated in rule.
The TCEQ adopts this rulemaking to amend the definition of "emergency operations" to clarify the minimum required water pressure that affected utilities must provide during emergency operations. This clarification is consistent with the requirements under TWC, §13.1394, which is 20 pounds per square inch, or a pressure approved by the executive director, and TWC, §13.1395, which is 35 pounds per square inch.
The TCEQ also adopts this rulemaking to amend sequential numbering for this section as necessary.
§290.39, General Provisions
The TCEQ's adopted amendments for this section will clarify existing rules and also add provisions relating to TWC, §13.1394 and §13.1395 to implement SB 3.
The TCEQ adopts this rulemaking to amend §290.39(a) to include a statement that authority for this subchapter includes TWC, §13.1394.
The TCEQ adopts this rulemaking to amend §290.39(c)(4) by adding language that references TWC, §13.1394 and §13.1395, replacing §§290.39(c)(4)(A) through 290.39(c)(4)(E) with a reference to §290.39(o) instead. This will reduce repetitive language already contained in §290.39(o).
The TCEQ adopts this rulemaking to amend §290.39(n) to add a subsection tagline. This amendment will meet Texas Register rule standards and guidelines and will make the subsection consistent with other subsections in §290.39.
The TCEQ adopts this rulemaking to amend the tagline of §290.39(o) to clarify that this subsection applies to affected utilities as defined in TWC, §13.1394 and §13.1395.
The TCEQ adopts this rulemaking to amend §290.39(o)(1) to remove a date and reference to the use of another emergency preparedness plan that meets the requirements of the rule. The templates, included in Appendix G, may be used for the submittal of emergency preparedness plans for affected utilities as defined in TWC, §13.1394 and §13.1395.
The TCEQ adopts this rulemaking to amend §290.39(o)(2), and add §§290.39(o)(2)(A) through 290.39(o)(2)(C), to include language from TWC, §13.1394(d) and §13.1395(d), requiring affected utilities who provide or convey surface water to wholesale customers to demonstrate in their emergency preparedness plan the ability to do so during emergencies, unless they provide raw water service that is unnecessary or subject to interruption or curtailment during emergencies under a contract.
The TCEQ adopts this rulemaking to amend §290.39(o)(3) by adding a reference to the requirement that affected utilities select one of the options listed in §§290.45(h)(1)(A) through 290.45(h)(1)(N) when operating as an affected utility as defined in TWC, §13.1394, or options listed in §§290.45(i)(1)(A) through 290.45(i)(1)(H) when operating as an affected utility as defined in TWC, §13.1395. The amended reference clarifies which options are applicable under each water code section.
The TCEQ adopts this rulemaking to amend §290.39(o)(4) to remove outdated language and to clarify the requirement for implementation of an approved emergency preparedness plan applies to all affected utilities defined in TWC, §13.1394 and §13.1395.
§290.41, Water Sources
The TCEQ adopts this rulemaking to add §290.41(f) requiring that all critical equipment associated with a raw water source be weatherized against adverse weather conditions. Weatherization techniques may be chosen by the affected utility to protect critical equipment against the types of adverse weather conditions experienced in its region of the state. The TCEQ adopts this addition in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
§290.42, Water Treatment
The TCEQ adopts amendments and additions to this section in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to amend §290.42(l) to include additional minimum content requirements for a plant operations manual so that operators will have the necessary information for the continuation of operations.
The TCEQ adopts this rulemaking to add §290.42(l)(1) to require that a plant operations manual include a description of planned protective measures for critical plant equipment during adverse weather conditions, replacement part information, information on manufacturer's user manuals, vendor/technician information, and information on alternative sources of equipment outside the area.
The TCEQ adopts this rulemaking to add §290.42(l)(2) to require that a plant operations manual identify all chemicals used for the treatment of drinking water, the entity's chemical vendor information, and information on alternative sources of chemicals outside the area.
The TCEQ adopts this rulemaking to add §290.42(l)(3), and §§290.42(l)(3)(A) through 290.42(l)(3)(F) to require that a plant operations manual include the following routine activities: protocol, schedules, and documentation related to chemical pump feed rate verification, chemical dose adjustments, process control sampling, calibration and accuracy verifications; operations of critical plant equipment, to include plant start-up and shut-down under normal and emergency conditions, while in manual and automated settings, as applicable, and the inclusion of manufacturer's specifications for maintaining and troubleshooting of critical plant equipment.
The TCEQ adopts this rulemaking to add §290.42(l)(4) to require that a plant operations manual include information outlining a continuity of operations plan in the event that critical equipment fails, or key personnel are not available. This information could include arrangements for emergency plant coverage or mutual aid agreements with other utilities for equipment or personnel.
The TCEQ adopts this rulemaking to add §290.42(l)(5) to require that a plant operations manual be reviewed and, if necessary, updated when a significant change occurs, as outlined in §290.39(j), after emergency events that impact plant operation, but at least every three years. This requirement is intended to ensure that a plant operations manual is evaluated and kept up-to-date.
The TCEQ adopts this rulemaking to add §290.42(o) to require that all critical components associated with drinking water treatment facilities be weatherized against adverse weather conditions. Weatherization techniques may be chosen by the affected utility to protect critical equipment against the types of adverse weather conditions experienced in their region of the state.
§290.43, Water Storage
The TCEQ adopts this rulemaking to amend §290.43(b)(1) to add new language that includes a setback distance of 150 feet between an elevated or ground storage tank and an on-site sewage facility (OSSF) spray field. This addition is consistent with the setback distance between a public water supply well and an OSSF spray field, which is a standard determined to provide adequate protection of public health. This addition streamlines the approval process by eliminating the requirement for a system to submit an exception if they cannot meet the previous setback distance of 500 feet between a storage tank and OSSF spray field, while still protecting public health.
The TCEQ adopts this rulemaking to amend §290.43(d)(2) to clarify that only one pressure gauge is required when more than one pressure tank is connected by a common manifold. This amendment streamlines the approval process by eliminating the requirement for a system to submit an exception if they plan to use only one pressure gauge.
The TCEQ adopts this rulemaking to add §290.43(g) to require that all critical equipment associated with water storage facilities be weatherized against adverse weather conditions. Weatherization techniques may be chosen by the affected utility to protect critical equipment against the types of adverse weather conditions experienced in their region of the state. The TCEQ adopts this addition in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
§290.44, Water Distribution
The TCEQ adopts this rulemaking to amend §290.44(d) to correct a compound word error and to specify that the distribution system of public water systems that are affected utilities, defined in TWC, §13.1394 or §13.1395, must be designed to implement the requirements of §290.45(h) and §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.44(i)(2)(J) to clarify that an accredited laboratory must analyze samples used to determine compliance for microbial contaminants. This adopted change is intended to make this regulation consistent with §290.119 and the definition of accredited laboratory.
The TCEQ adopts this rulemaking to add §290.44(k) to require that all critical equipment associated with water transmission facilities be weatherized against adverse weather conditions. Weatherization techniques may be chosen by the affected utility to protect critical equipment against the types of adverse weather conditions experienced in their region of the state. The TCEQ adopts this addition in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
§290.45, Minimum Water System Capacity Requirements
The TCEQ adopts this rulemaking to amend §§290.45(a)(2), 290.45(g)(1)(F) and 290.45(g)(6)(A)(i) to correct a compound word error.
The TCEQ adopts this rulemaking to amend §290.45(a)(7) to include the minimum emergency pressure requirement of 20 psi or a pressure approved by the executive director for affected utilities under TWC, §13.1394.
The TCEQ adopts this rulemaking to add §290.45(a)(8) to include requirements for an affected utility to review their emergency preparedness plan at least once every three years and to submit a new or revised emergency preparedness plan to the executive director for approval within 90 days after certain conditions occur. Subparagraphs (A)-(D) describe the conditions which require a new or revised emergency preparedness plan to the executive director. These adopted requirements are intended to provide resiliency and continuity of operations to affected utilities and to eliminate the unnecessary burden of submitting an entire emergency preparedness plan for changes to emergency contacts.
The TCEQ adopts this rulemaking to amend §290.45(b)(1)(D)(v) and §290.45(b)(2)(H) to clarify the rules by deleting the generator maintenance requirement portion of the rule, clarifying that minimum pressure requirements must be met in the event of loss of normal power and adding language which states emergency power must be maintained as required by adopted §290.46(m)(8).
The TCEQ adopts this rulemaking to amend §290.45(b)(3) to clarify that affected utilities, defined in TWC, §13.1394 or §13.1395, must have an emergency preparedness plan approved by the executive director and meet the requirements for emergency operations contained in §290.45(h) and §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.45(c)(3) to clarify that affected utilities, defined in TWC, §13.1394 or §13.1395, must have an emergency preparedness plan approved by the executive director and must meet the requirements for emergency operations contained in §290.45(h) or §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.45(d)(4) to clarify that affected utilities, defined in TWC, §13.1394 or §13.1395, must have an emergency preparedness plan approved by the executive director and meet the requirements for emergency operations contained in §290.45(h) and §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.45(e)(1) to clarify that if a contract prohibits a water purchaser from securing water from sources other than the contracted wholesaler during emergency operations, the wholesaler is responsible for meeting applicable capacity requirements.
The TCEQ adopts this rulemaking to amend §290.45(e)(3) to clarify that if emergency power is required it must be sufficient to meet the minimum pressure requirements, and to add that all wholesale contracts executed or amended on or after January 1, 2025, must specify if the wholesaler will supply water, pressure, or both water and pressure during emergency operations. This addition is meant for the wholesale entity to clarify whether it intends to provide both water and pressure to the purchasing entity or if the wholesale entity only intends to provide water under emergency operations. This addition is not intended to conflict with a wholesaler's "Force Majeure" clause but is required to ensure compliance with TWC, §13.1394 and §13.1395.
The TCEQ adopts this rulemaking to amend §290.45(e)(4) to clarify that affected utilities, defined in TWC, §13.1394 or §13.1395, must have an emergency preparedness plan approved by the executive director and meet the requirements for emergency operations contained in §290.45(h) or §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.45(f)(6) to clarify that this paragraph references capacity requirements, consistent with other portions of §290.45, and to add that all wholesale contracts executed or amended on or after January 1, 2025, must specify if the wholesaler intends to supply water, pressure, or both water and pressure during emergency operations. This requirement is meant for the wholesale entity to clarify whether it intends to provide both water and pressure to the purchasing entity or if the wholesale entity only intends to provide water under emergency operations. This requirement is not intended to conflict with a wholesaler's "Force Majeure" clause but is required for wholesalers to comply with TWC, §13.1394 and §13.1395.
The TCEQ adopts this rulemaking to amend §290.45(g)(5)(A)(i) to include a requirement to provide 20 psi or a pressure approved by the executive director in distribution, as stated in TWC §13.1394, when operating emergency power facilities.
The TCEQ adopts this rulemaking to amend §290.45(g)(5)(A)(iv) to clarify that affected utilities, defined in TWC, §13.1394 or §13.1395, must have an emergency preparedness plan approved by the executive director and meet the requirements for emergency operations contained in §290.45(h) and §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.45(g)(5)(B) to clarify that affected utilities, defined in TWC, §13.1394 or §13.1395, must have an emergency preparedness plan approved by the executive director and meet the requirements for emergency operations contained in §290.45(h) and §290.45(i), respectively.
The TCEQ adopts this rulemaking to amend §290.45(g)(5)(B)(i) - (iii) to add language that emergency power facilities must be maintained as prescribed in §290.46(m)(8), that the emergency power must be activated before the distribution pressure falls below 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC, §13.1394 and §13.1395, respectively, and increase the fuel requirement to operate emergency power facilities during emergency operations for at least 48 hours. The emergency power maintenance and the increase in available fuel requirements are in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to delete §290.45(g)(5)(D) which requires public water systems to maintain and submit an emergency response plan that details the procedures to follow and individuals to contact during a power outage. This requirement is redundant because it is required by all affected utilities in their emergency preparedness plan and all non-affected utilities in their plant operations manual.
The TCEQ adopts this rulemaking to add a new §290.45(h) to differentiate the requirements between affected utilities defined in TWC, §13.1394 and §13.1395 and to specify emergency power requirements in addition to the existing power requirements for public water systems in §290.45. The TCEQ adopts to amend sequential numbering for this section and correct any cross-references within this chapter, as necessary.
The TCEQ adopts this rulemaking to add new §290.45(h)(1) and subsequent subparagraphs to include the fourteen emergency operation options, as listed in TWC, §13.1394(c)(1) through 13.1394(c)(14) for emergency preparedness plans.
The TCEQ adopts this rulemaking to add new §290.45(h)(2) to require that affected utilities that provide raw surface water to wholesale customers must include in their emergency preparedness plan how they intend to provide raw water services during emergencies, except during instances when raw water services are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract, as stated in TWC, §13.1394(d).
The TCEQ adopts this rulemaking to add new §290.45(h)(3) which requires that auxiliary power facilities for affected utilities be inspected, maintained, tested, and operated in accordance with the manufacturer's specifications and as outlined in adopted §290.46(m)(8). The TCEQ adopts this addition to implement TWC, §13.1394(h). The TCEQ also adopts this addition in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add new §290.45(h)(4) to allow an affected utility to adopt and enforce limitations on water use while providing emergency operations, as stated in TWC §13.1394(k).
The TCEQ adopts this rulemaking to add new §290.45(h)(5) to add that during emergency operations, affected utilities with elevated storage must operate in accordance with their approved emergency preparedness plan, which may or may not include using elevated storage, as stated in TWC, §13.1394(e).
The TCEQ adopts this rulemaking to add new §290.45(h)(6) which requires an affected utility maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any emergency power equipment during emergency operations for at least 48 hours. The TCEQ adopts this in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add new 290.45(h)(7) to require that each affected utility implement an emergency preparedness plan upon approval by the executive director under TWC, §13.1394.
The TCEQ adopts this rulemaking to amend §290.45(i) to add language that specifies that this subsection applies to affected utilities as defined in TWC, §13.1395 and to remove repetitive language. This amendment will differentiate the requirements for affected utilities under TWC, §13.1394 and §13.1395.
The TCEQ adopts this rulemaking to amend §290.45(i)(1)(G) to remove reference for this emergency preparedness option to apply to existing facilities only and to correct a compound word error.
The TCEQ adopts this rulemaking to amend §290.45(i)(2) to clarify that the requirements under this paragraph do not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies pursuant to a contract, as indicated in TWC, §13.1395(d).
The TCEQ adopts this rulemaking to amend §290.45(i)(3) to require maintenance of an emergency generator, which is part of an approved emergency preparedness plan, by adding language that requires the generator to be maintained in accordance with Level 2 maintenance requirements contained in the current National Fire Protection Association (NFPA) 110 Standard and manufacturer's recommendations if the affected utility serves 1,000 connections or greater, or manufacturer's specifications and as outlined in §290.46(m)(8) if the affected utility serves fewer than 1,000 connections. The TCEQ adopts this amendment in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to amend §290.45(i)(5) to abbreviate "Texas Water Code" to TWC.
The TCEQ adopts this rulemaking to amend §290.45(i)(6) to clarify that an affected utility must provide enough fuel necessary to operate emergency power facilities during emergency operations for at least 48 hours. The TCEQ adopts this amendment in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.45(i)(7) to require that each affected utility implement an emergency preparedness plan upon approval by the executive director under TWC, §13.1395.
§290.46, Minimum Acceptable Operating Practices for Public Water Systems
The TCEQ adopts this rulemaking to amend §290.46(f)(5) to clarify that public water systems that are affected utilities, as defined by TWC, §13.1394 or §13.1395, must maintain records related to their emergency preparedness plan for as long as the plan is applicable.
The TCEQ adopts this rulemaking to amend §290.46(f)(5)(B) to add that an affected utility must maintain copies of operating, inspection, testing, and maintenance records for auxiliary power equipment and associated components required to be maintained or actions performed as prescribed in §290.46(m)(8). These record requirements support implementation of TWC, §13.1394(i), because the statute requires that the TCEQ periodically inspect affected utilities to ensure compliance with their approved emergency preparedness plan.
The TCEQ adopts this rulemaking to amend §290.46(g) to clarify that an accredited laboratory must analyze samples used to determine compliance for microbial contaminants. This adopted change is for consistency with §290.119 and the definition of accredited laboratory.
The TCEQ adopts this rulemaking to amend §290.46(i) to correct a spelling error.
The TCEQ adopts this rulemaking to add §290.46(m)(8) to require that emergency generators be maintained and tested monthly under at least 30% load based on manufacturer's name plate kilowatt (kW) rating for at least 30 minutes, or as recommended by the manufacturer, to ensure functionality during emergency situations. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(A) to require that emergency generators operated at water systems serving 1,000 connections or greater to be maintained in accordance with Level 2 maintenance requirements contained in the current NFPA 110 Standard and the manufacturer's recommendations. In addition, the water system must maintain an inventory of operational maintenance items, lubricants, and coolants for critical generator components. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B) to require that emergency generators operated at water systems with fewer than 1,000 connections to be maintained according to §§290.46(m)(8)(B)(i) through 290.46(m)(8)(B)(x) and with any additional requirements prescribed in the manufacturer's specifications or Level 2 maintenance requirements contained in NFPA 110 Standard. In addition, the public water system must maintain an inventory of operational maintenance items, lubricants, and coolants for critical generator components. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(i) to require inspection and maintenance of the generator fuel system prior to monthly generator start-up. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §§290.46(m)(8)(B)(i)(I) through 290.46(m)(8)(B)(i)(V) to require inspection of the fuel tank for fuel levels, contamination, and condensation in the portion of the tank occupied by air; inspection of fuel lines and fittings for breaks, degradation, and replacement; inspection of fuel filters and water separators for clogging, sediment buildup, and replacement; inspection of the fuel transfer pumps, float switches and valves, where provided between holding tanks and the generator, to verify that they are operating properly; and inspection of fuel tank grounding rods, cathodic and generator lightning protection for damage that may render the protection ineffective. The TCEQ adopts these requirements in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(ii) to require inspection of the fuel pump to verify that it is working properly when the generator is operating under load. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(iii) to require inspection and maintenance of the generator lubrication system, prior to monthly generator start up. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(iii)(I) and §290.46(m)(8)(B)(iii)(II) to require inspection of oil lines and oil reservoirs for adequate oil levels, leaks, breaks, degradation, and oil replacement, as well as the greasing of all bearing components and grease fittings. The TCEQ adopts these requirements in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(iv) to require inspection and maintenance of the generator coolant system, prior to monthly generator start up. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §§290.46(m)(8)(B)(iv)(I) through 290.46(m)(8)(B)(iv)(III) to require inspection of the block heater, coolant lines and coolant reservoirs for adequate coolant levels, leaks, breaks, and degradation; inspection of coolant filters for clogging, sediment buildup, and coolant filter replacement; and inspection of the radiator, fan system, belts, and air intake and filters for obstruction, cracks, breaks, and leaks. The TCEQ adopts these requirements in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(v) to require inspection of the exhaust manifold and muffler, and that fumes are directed away from enclosed areas when the generator is operating under load. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(vi) to require that a carbon monoxide monitor equipped with automatic alarms and generator shutdowns must be present and operational inside enclosed structures where generators are located. The TCEQ adopts this requirement as a safety measure for utility staff.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(vii) to require inspection and maintenance of the generator's electrical system be conducted prior to monthly generator start up. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(vii)(I) and §290.46(m)(8)(B)(vii)(II) to require inspection of battery chargers, wiring and cables for damage, corrosion, and connection continuity, verification that batteries are mounted and secured, that all contacts are tightened onto battery terminals, and inspection of each battery unit for electrolyte levels, adequate charge retention and appropriate discharge voltage. The TCEQ adopts these requirements in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(viii) to require inspection of generator engine starters and alternators when the generator is operating under load to verify that they are operating properly. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(ix) to require a monthly inspection of the Programmable Logic Controllers (PLC) and Uninterrupted Power Supplies (UPC), where applicable, to ensure that they are water-tight, not subject to floods, are properly ventilated, and that backup power supplies have adequate charge. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(8)(B)(x) to require a monthly inspection of the generator's switch gears to ensure they are water-tight and in good, working condition. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §290.46(m)(9) to require that all critical components necessary for the continued operations of the water system's facilities be weatherized against adverse weather conditions. Weatherization techniques may be chosen by the affected utility to protect critical equipment against the types of adverse weather conditions experienced in their region of the state. The TCEQ adopts this requirement in response to the after-action review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions would have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to amend subsection §290.46(q) to clarify the subject matter of the subsection, which is special precautions, protective measures, and boil water notices. Overall, the adopted amendments to the subsection clarify when to issue notices and defines language that must be used when a special precaution, protective measure, or boil water notice is issued or rescinded, as well as the timeframe and documentation required to the executive director. The adopted amendments also rearrange portions of the subsection for clarity. These adopted amendments do not result in requirements that are less stringent than federal drinking water requirements.
The TCEQ adopts this rulemaking to amend §290.46(q)(1) to remove the tagline and to clarify that along with boil water notices, this paragraph applies to special precautions and protective measures. A subparagraph will be added to include the situations that require these types of notices. The delivery method to customers and to the executive director for the initial and rescind notices, along with requirements for multilingual postings, are adopted to be deleted from this paragraph and relocated into adopted §§290.46(q)(2) through 290.46(q)(4).
The TCEQ adopts this rulemaking to add §290.46(q)(1)(A), to include §§290.46(q)(1)(A)(i) through 290.46(q)(1)(A)(iii), and new §290.46(q)(1)(A)(iv) and 290.46(q)(1)(A)(v), which describe the situations that require a boil water notice. Included in these situations are instances of low system water pressure, E. coli or MCL violations, turbidity exceedances, low distribution residuals, and waterborne disease outbreaks. These changes are adopted to clarify the instances that require a boil water notice, special precaution, or protective measure. Additionally, the TCEQ adopts to delete the summarized conditions for combined filter effluent because the precise requirements are located in the reference and to amend §290.46(q)(1)(A)(i) through §290.46(q)(1)(A)(iii) to remove the taglines.
The TCEQ adopts this rulemaking to add §290.46(q)(1)(B) to clarify that situations requiring special precautions or protective measures (other than boil water notices) may be determined by the public water system or at the discretion of the executive director. Executive director discretion will be determined as described in §290.46(q)(5).
The TCEQ adopts this rulemaking to add §290.46(q)(2) to clarify that all boil water notices, special precautions, and protective measures must be issued using one or more of the Tier 1 delivery methods specified in §290.122(a)(2) and by using language and format specified by the executive director.
The TCEQ adopts this rulemaking to add §290.46(q)(3) to clarify when and how a boil water notice, special precaution, or protective measure should be delivered to the executive director.
The TCEQ adopts this rulemaking to add §290.46(q)(4) to clarify that a boil water notice, special precaution, or protective measure must be multilingual where appropriate based on local demographics.
The TCEQ adopts this rulemaking to amend §290.46(q)(5) to remove the tagline, and to amend §290.46(q)(5)(A)(ii) and §290.46(q)(5)(A)(iii) to move the description of waterborne disease outbreak and the failure to maintain adequate disinfectant residuals into the situations that require boil water notices, special precautions, or protective measures, under §290.46(q)(1)(A).
The TCEQ adopts this rulemaking to amend §290.46(q)(5)(B) to add that the executive director may require additional actions be performed in order to rescind a notice, depending on local conditions and the nature of the event that triggered the initial notice. The executive director will provide such additional actions in writing.
The TCEQ adopts this rulemaking to amend §290.46(q)(5)(C) to clarify that a public water system shall provide any required information to the executive director to document that the public water system has met the rescind requirements for special precautions, protective measures and boil water notices required at the discretion of the executive director.
The TCEQ adopts this rulemaking to amend §290.46(q)(6) to remove the tagline, to add language regarding notifying customers when a boil water notice, special precaution or protective measure has been rescinded, to reorganize the paragraph into subparagraphs and clauses that include the actions that must be performed prior to rescinding a boil water notice, and to amend sequential numbering as necessary.
The TCEQ adopts this rulemaking to amend §290.46(q)(6)(A)(ii) and move the reference to flushing affected areas of a distribution system to §290.46(q)(6)(A)(iii).
The TCEQ adopts this rulemaking to add §290.46(q)(6)(A)(iv) to address situations in which the executive director may require, in writing, that additional actions be completed, and that the executive director receives and approves documentation of those actions prior to rescinding a boil water notice.
The TCEQ adopts this rulemaking to amend §290.46(q)(6)(B) to include that the method of rescind notice delivery to customers be in a manner similar to the original notice.
The TCEQ adopts this rulemaking to amend §290.46(q)(6)(C) to include that the public water system must submit a Certificate of Delivery for the rescind notice to be consistent with §290.122(f).
The TCEQ adopts this rulemaking to amend §290.46(r) to clarify that an affected utility, as defined in TWC, §13.1394 or TWC, §13.1395, must maintain a minimum of 20 psi or a pressure approved by the executive director, or 35 psi, respectively, throughout the distribution system as soon as safe and practicable during an extended power outage following the occurrence of a natural disaster. The TCEQ adopts the latter amendments pursuant to TWC, §13.1394.
The TCEQ adopts this rulemaking to amend §290.46(c) and §290.46(x)(4) to correct a compound word error.
§290.47, Appendices
The TCEQ adopts this rulemaking to amend §290.47(c) and remove boil water notice templates which will allow executive director's staff to make warranted modifications to these templates and add to this subsection a table containing a non-exhaustive list of critical equipment, components and facilities that must be protected from adverse weather conditions. The phrase "variable flow device" was amended to "variable frequency drive" to be consistent with industry terminology. The TCEQ adopts these changes to assist water operators with the identification of facilities and components that if lost or impacted by adverse weather would result in water system being unable to produce, treat, store, or distribute treated water to customers.
The TCEQ adopts this rulemaking to amend §290.47(g) to add an emergency preparedness plan template, under §290.47(g)(1), for use by those affected utilities defined in TWC, §13.1394, and to amend the template, under §290.47(g)(2), for use by those affected utilities defined in TWC, §13.1395. The TCEQ adopts these changes to comply with TWC, §13.1394 and §13.1395 requirements regarding the creation of templates by rule.
Final Regulatory Impact Determination
The TCEQ reviewed this rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the rulemaking is not subject to §2001.0225. A "major environmental rule" means a rule with a specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.
First, the rulemaking does not meet the statutory definition of a "major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the rulemaking is to ensure that affected utilities as defined by TWC, §13.1394 and §13.1395 have emergency preparedness plans to provide potable water service during emergency operations and to clarify existing drinking water rules.
Second, the rulemaking does not meet the statutory definition of a "major environmental rule" because the rules will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. It is not anticipated that the cost of complying with the rules will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.
Finally, the rulemaking does not meet any of the four applicability requirements for a "major environmental rule" listed in Texas Government Code, §2001.0225(a). Section 2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of the preceding four applicability requirements because this rulemaking: does not exceed any standard set by federal law for public water systems and is consistent with and no less stringent than federal rules; does not exceed any express requirement of state law under Texas Health and Safety Code (THSC), Chapter 341, Subchapter C; does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government; and is not based solely under the general powers of the agency, but specifically under THSC, §341.031, which authorizes the TCEQ to establish public drinking water standards and adopt and enforce rules to implement the federal Safe Drinking Water Act, as well under as SB 3, which authorizes the TCEQ to promulgate rules in its implementation of TWC, §13.1394 and §13.1395, and the other general powers of the TCEQ.
The TCEQ invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No written comments on the Draft Regulatory Impact Analysis Determination were received.
Takings Impact Assessment
The TCEQ evaluated this rulemaking and performed a preliminary assessment of whether these rules constitute a taking under Texas Government Code, Chapter 2007.
The TCEQ adopts these rules to clarify existing requirements and for the specific purpose of implementing SB 3, 87th R.S. (2021), which requires the TCEQ to receive, review, and monitor compliance with affected utilities' emergency preparedness plans to ensure provision of potable water service during emergency operations.
The TCEQ's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these rules based upon exceptions to applicability in Texas Government Code, §2007.003(b)(13). The rulemaking is an action that is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the public health and safety purpose; and that does not impose a greater burden than is necessary to achieve the public health and safety purpose. Texas Government Code, §2007.003(b)(13). Lack of potable water service during emergency operations constitutes a real and substantial threat to public health and safety and requires appropriate governmental regulation. The rules significantly advance the public health and safety purpose by ensuring appropriate governmental regulation of affected utilities' emergency preparedness plans and their implementation and do so in a way that does not impose a greater burden than is necessary to achieve the public health and safety purpose.
Further, the TCEQ has determined that promulgation and enforcement of these rules will be neither a statutory nor a constitutional taking of private real property. Specifically, there are no burdens imposed on private real property under the rules because the rules neither relate to, nor have any impact on, the use or enjoyment of private real property, and there will be no reduction in property value as a result of these rules. The rules require affected utilities to submit emergency preparedness plans, comply with their emergency preparedness plans, and operate under their emergency preparedness plans during emergency operations. Therefore, the rules will not constitute a taking under Texas Government Code Chapter 2007.
Consistency with the Coastal Management Program
The TCEQ reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program.
The TCEQ invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received during the public comment period.
Public Comment
The TCEQ held a public hearing on August 11, 2023. The comment period closed at 11:59 p.m. on August 14, 2023. The TCEQ received comments from Dallas Water Utilities (DWU) and Texas Rural Water Association (TRWA). Commentors expressed concern with several topics included in the rule package and TRWA suggested some changes to the rule language.
Response to Comments
Comment
Dallas Water Utilities (DWU) and the Texas Rural Water Association (TRWA) commented with concerns related to the implementation of a 48-hour onsite fuel reserve for emergency power generation facilities. DWU suggested that TCEQ consider alternatives, such as the Joint Commission Emergency Management Standard for emergency resource management plans, to develop plans for specific needs and circumstances for each individual utility rather than a blanket statewide fuel reserve requirement. TRWA suggested lowering the onsite fuel reserve requirement to 24 hours in §290.45(g)(5)(B)(iii), §290.45(h)(6) and §290.45(i)(6) because TRWA believes that 48 hours' worth of generator fuel is excessive, costly, and is a potential environmental and safety hazard.
Response
The TCEQ disagrees that 48-hours of generator fuel is excessive because the American Water Works Association (AWWA) Standards (J100-10 Risk and Resilience Management of Water and Wastewater Systems) reference the 2008 edition of the National Electric Code (NEC), Article 708, which establishes a 72-hour backup power minimum for critical operations and assets. Participants of the Winter Storm Uri after-action review stated that their water systems did not have enough fuel, nor did they have access to ancillary fuel reserves, and internal public drinking water subject matter experts supported an increase in fuel reserve requirements. Based on this, the TCEQ noted that a 48-hour onsite fuel reserve, or an option that makes fuel readily available during emergency operations, should be sufficient to maintain distribution pressure during an extended power outage. Discussion on this topic occurred during the May 19, 2022, Commissioner's Work Session. Additionally, the executive director staff acknowledge that while there may be costs, security needs and compliance requirements associated with acquiring and maintaining an amount of fuel beyond that which a public water system currently maintains, the accessibility to that fuel during an extended power outage will limit system downtime and reduce impacts to customers, meeting the intent of this rule. Regarding the suggestion from DWU, the TCEQ supports the participation of public water systems in mutual aid programs and additional contracts to assist in providing fuel during emergency situations, however, developing plans for specific needs is not practicable for the varied water system types and sizes in Texas. No changes were made to the rule language.
Comment
TRWA commented that §290.45(g)(5)(B)(iii), §290.45(h)(6), and §290.45(i)(6) should not apply to onsite power generation equipment that is fueled by natural gas because this type of generator is fueled through a direct connection pipeline. TRWA suggested revising the rule language to specifically exclude utilities that have installed generators that run on natural gas.
Response
The TCEQ disagrees with the suggested revision because natural gas generators fueled by a natural gas pipeline are compliant with the rule as proposed because the generators are supplied with a direct fuel source; therefore, fuel is readily available. Affected utilities that operate generators without a continuous, direct fuel connection must maintain a 48-hour onsite fuel reserve or make fuel readily available during emergency operations. No changes were made to the rule language.
Comment
TRWA commented with concerns that affected utilities could misinterpret the circumstances in which emergency power generation facilities are required to be put online, causing equipment damage or hazards. TRWA suggested revising rule language to clarify circumstances in which generators will be required in §290.45(b)(1)(D)(v), §290.45(g)(5)(B)(ii) and §290.47(g)(1).
Response
The TCEQ disagrees that clarification is necessary because the definitions of emergency operations, emergency power, and extended power outage are included in this rule package under §290.38(28)-(30). The TCEQ believes that the inclusion of these definitions provide clarity to when emergency power generation equipment is needed to maintain distribution pressure due to outages caused by electrical power failure. Additionally, emergency power generation equipment is one of fourteen options identified under Texas Water Code (TWC) §13.1394, and one of eight options identified under TWC §13.1395, to maintain distribution pressure during an extended power outage. No changes were made to the rule language.
Comment
TRWA commented that affected utilities should include in their plant operations manual a description of a weatherization plan for critical equipment and that rule references related to weatherization should refer the reader to this weatherization plan. TRWA suggested revising the rule language to include reference to the affected utility's plant operations manual in §290.41(f), §290.42(o), §290.44(k) and §290.46(m)(9).
Response
The TCEQ disagrees with the suggested revisions because the requirement to identify critical plant equipment and planned protective measures for this equipment during adverse weather conditions, contained in §290.42(l)(1), alleviates any need to restate that information in each rule that references weatherization. Additionally, the rule as proposed allows public water systems the flexibility to install weatherization methods appropriate for the specific type and severity of event beyond those described in their operations manual. No changes were made to the rule language.
Comment
TRWA commented with concerns that affected utilities could misinterpret the requirement by which updated emergency preparedness plan contact information must be submitted to the TCEQ, resulting in the overreporting of personnel changes and causing unnecessary burden to the utility. TRWA suggested revising rule language by removing the phrase "personnel changes" and adding the word "information" to clarify that changes in a utility's emergency contact information is required under §290.45(a)(8)(D).
Response
The TCEQ agrees with the comment because the rule as proposed was not intended to encompass every personnel change at an affected utility. Section 290.45(a)(8)(D) has been revised in response to this comment.
Comment
TRWA commented with concerns that affected utilities could misinterpret the length of time that emergency preparedness plan-related records are required to be retained causing excessive record retention. TRWA suggested revising §290.46(f)(5)(A)-(C) to clarify how long records related to emergency preparedness plans and generators are required to be retained.
Response
The TCEQ disagrees with the suggested revisions because the retention timeframe in §290.46(f)(5) is unchanged from existing rule. The existing rule has not resulted in common misinterpretation and allows an affected utility operational flexibility. An affected utility is required to maintain an emergency preparedness plan and the rule requires the affected utility determine which applicable documents and records must be retained. When an affected utility makes changes to its emergency preparedness plan or when equipment related to its emergency preparedness plan is retired, records relating to the prior emergency preparedness plan or to retired equipment may be discarded. No changes were made to the rule language.
Comment
TRWA commented with concerns that the rule language regarding multilingual boil water notices, special precautions and protective measures is too vague for public water systems to effectively implement. TRWA suggested revising §290.46(q)(1) and §290.46(q)(4) based on public notice language in Title 40 Code of Federal Regulations (40 CFR) §141.205(C)(2).
Response
The TCEQ disagrees with the suggested revisions because specific public notice language is governed under a subchapter of Chapter 290 that is not open for this rulemaking. At the time that Chapter 290, Subchapter F is opened for rulemaking, this issue will be revisited. No changes were made to the rule language.
Comment
TRWA commented with concerns that the phrase "or as recommended by the manufacturer" in §290.46(m)(8) is not clear regarding whether it modifies the frequency of testing, number of minutes a generator is required to be tested, or the load under which the generator must be tested. TRWA suggested revising §290.46(m)(8) rule language by moving "or as recommended by the manufacturer" to modify only the frequency a generator is required to be tested.
Response
The TCEQ disagrees with the suggested revisions because the placement of the phrase "or as recommended by the manufacturer" is meant to modify the frequency of testing, number of minutes a generator is required to be tested, and load under which the generator is operated during the testing. This phrase placement allows the public water systems operational flexibility to ensure generator testing can occur in accordance with manufacturer recommendations which should reflect optimal actions for the specific equipment selected. No changes were made to the rule language.
Comment
TRWA commented with concern that the language in §290.46(m)(8)(B), specifically, "spare parts" is vague and may be interpreted to mean large items. TRWA suggested revising §290.46(m)(8)(B) rule language by removing the phrase "spare parts" and specifying "operational maintenance items such as fuel filters, air filters".
Response
The TCEQ agrees with the comment regarding "spare parts" because the phrase may be too general. It could be interpreted as requiring a public water system to maintain a stock of replacement parts for every portion of a generator on site. Section 290.46(m)(8)(A)-(B) has been revised to clarify the rule in response to this comment.
Comment
TRWA commented with concerns that not all valves, gauges, and meters should be required to be protected against adverse weather conditions, especially those located inside a buried vault or buried in the ground. TRWA suggested revising the table in §290.47(c) to add the term "exposed" to valves, gauges, and meters to distinguish this type of device from those which may not require weatherization.
Response
The TCEQ disagrees with the suggested revisions because the intent of the rule is to require that all valves, gauges, and meters be protected against adverse weather conditions which may impact device operability and performance. By not specifying exposed, the public water system is given the operational flexibility to determine which devices require weatherization. This recommendation, discussed in a TCEQ Commissioner's Work Session on May 19, 2022, resulted from the Winter Storm Uri after-action review and discussion with industry professionals and subject matter experts. To address the varied climate and weather conditions experienced by public water systems across the state, the TCEQ has decided to provide supplemental guidance which will include available options for public water systems to meet the requirements of this rule. The guidance will be offered after the adoption of this rule. No changes were made to the rule language.
Statutory Authority
These amendments are adopted under the authority of the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; Texas Health and Safety Code (THSC), §341.031, which establishes the commission's authority to establish public drinking water standards and adopt and enforce rules to implement the federal Safe Drinking Water Act; and SB 3, specifically TWC §13.1394 and §13.1395, which authorized the commission to promulgate rules in its implementation of these statutes.
The adopted amendments implement TWC §13.1394, as added by Senate Bill (SB 3) of the 87th Texas Legislative Session (2021), and TWC §13.1395 and §13.1396, as amended by SB 3 of the 87th Texas Legislative Session. Additional amendments adopted by the commission provide clarity to existing rules.
§290.45.Minimum Water System Capacity Requirements.
(a) General provisions.
(1) The requirements contained in this section are to be used in evaluating both the total capacities for public water systems and the capacities at individual pump stations and pressure planes which serve portions of the system that are hydraulically separated from, or incapable of being served by, other pump stations or pressure planes. The capacities specified in this section are minimum requirements only and do not include emergency fire flow capacities for systems required to meet requirements contained in §290.46(x) and (y) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).
(2) The executive director will require additional supply, storage, service pumping, and pressure maintenance facilities if a normal operating pressure of 35 pounds per square inch (psi) cannot be maintained throughout the system, or if the system's maximum daily demand exceeds its total production and treatment capacity. The executive director will also require additional capacities for a system that is unable to maintain a minimum pressure of 20 psi during firefighting, line flushing, other unusual conditions, and systems that are required to provide fire flow as specified in §290.46(x) and (y) of this title.
(3) The executive director may establish additional capacity requirements for a public water system using the method of calculation described in subsection (g)(2) of this section if there are repeated customer complaints regarding inadequate pressure or if the executive director receives a request for a capacity evaluation from customers of the system.
(4) Throughout this section, total storage capacity does not include pressure tank capacity.
(5) The executive director may exclude the capacity of facilities that have been inoperative for the past 120 days and will not be returned to an operative condition within the next 30 days when determining compliance with the requirements of this section.
(6) The capacity of the treatment facilities shall not be less than the required raw water or groundwater production rate or the anticipated maximum daily demand of the system. The production capacity of a reverse osmosis or nanofiltration membrane system shall be the quantity of permeate water after post-treatment that can be delivered to the distribution system. The amount available for customer use must consider:
(A) the quantity of feed water discharged to waste;
(B) the quantity of bypass water used for blending;
(C) the quantity of permeate water used for cleaning and maintenance; and
(D) any other loss of raw water or groundwater available for use due to other processes at the reverse osmosis or nanofiltration facility.
(7) If a public water system that is an affected utility fails to provide a minimum of 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC §13.1394 and §13.1395 respectively, throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan or justification regarding pressure drop shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.
(8) A public water system that is an affected utility is required to review its emergency preparedness plan once every three years. An affected utility shall submit a new or revised emergency preparedness plan to the executive director for approval within 90 days after any of the following conditions occur:
(A) An affected utility chooses to implement a different option or options other than those in the most recent approved emergency preparedness plan;
(B) A previously non-affected utility meets the definition of an affected utility;
(C) An affected utility makes a significant change as described in §290.39(j) of this title that affects emergency operations; or
(D) An affected utility makes changes to utility contact or emergency communications information. For these changes, the affected utility must submit only the updated applicable pages of the emergency preparedness plan to the executive director.
(b) Community water systems.
(1) Groundwater supplies must meet the following requirements.
(A) If fewer than 50 connections without ground storage, the system must meet the following requirements:
(i) a well capacity of 1.5 gallons per minute (gpm) per connection; and
(ii) a pressure tank capacity of 50 gallons per connection.
(B) If fewer than 50 connections with ground storage, the system must meet the following requirements:
(i) a well capacity of 0.6 gpm per connection;
(ii) a total storage capacity of 200 gallons per connection;
(iii) two or more service pumps having a total capacity of 2.0 gpm per connection; and
(iv) a pressure tank capacity of 20 gallons per connection.
(C) For 50 to 250 connections, the system must meet the following requirements:
(i) a well capacity of 0.6 gpm per connection;
(ii) a total storage capacity of 200 gallons per connection;
(iii) two or more pumps having a total capacity of 2.0 gpm per connection at each pump station or pressure plane. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gpm per connection are required at each pump station or pressure plane. If only wells and elevated storage are provided, service pumps are not required; and
(iv) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection.
(D) For more than 250 connections, the system must meet the following requirements:
(i) two or more wells having a total capacity of 0.6 gpm per connection. Where an interconnection is provided with another acceptable water system capable of supplying at least 0.35 gpm for each connection in the combined system under emergency conditions, an additional well will not be required as long as the 0.6 gpm per connection requirement is met for each system on an individual basis. Each water system must still meet the storage and pressure maintenance requirements on an individual basis unless the interconnection is permanently open. In this case, the systems' capacities will be rated as though a single system existed;
(ii) a total storage capacity of 200 gallons per connection;
(iii) two or more pumps that have a total capacity of 2.0 gpm per connection or that have a total capacity of at least 1,000 gpm and the ability to meet peak hourly demands with the largest pump out of service, whichever is less, at each pump station or pressure plane. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gpm per connection are required at each pump station or pressure plane. If only wells and elevated storage are provided, service pumps are not required;
(iv) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection. If pressure tanks are used, a maximum capacity of 30,000 gallons is sufficient for up to 2,500 connections. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Alternate methods of pressure maintenance may be proposed and will be approved if the criteria contained in subsection (g)(5) of this section are met; and
(v) emergency power for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient emergency power must be provided to deliver a minimum of 0.35 gpm per connection and meet minimum pressure requirements to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has emergency power and is able to supply at least 0.35 gpm for each connection in the combined system. Emergency power must be maintained as required by §290.46(m)(8) of this title.
(E) Mobile home parks with a density of eight or more units per acre and apartment complexes which supply fewer than 100 connections without ground storage must meet the following requirements:
(i) a well capacity of 1.0 gpm per connection; and
(ii) a pressure tank capacity of 50 gallons per connection with a maximum of 2,500 gallons required.
(F) Mobile home parks and apartment complexes which supply 100 connections or greater, or fewer than 100 connections and utilize ground storage must meet the following requirements:
(i) a well capacity of 0.6 gpm per connection. Systems with 250 or more connections must have either two wells or an approved interconnection which is capable of supplying at least 0.35 gpm for each connection in the combined system;
(ii) a total storage of 200 gallons per connection;
(iii) at least two service pumps with a total capacity of 2.0 gpm per connection; and
(iv) a pressure tank capacity of 20 gallons per connection.
(2) Surface water supplies must meet the following requirements:
(A) a raw water pump capacity of 0.6 gpm per connection with the largest pump out of service;
(B) a treatment plant capacity of 0.6 gpm per connection under normal rated design flow;
(C) transfer pumps (where applicable) with a capacity of 0.6 gpm per connection with the largest pump out of service;
(D) a covered clearwell storage capacity at the treatment plant of 50 gallons per connection or, for systems serving more than 250 connections, 5.0% of daily plant capacity;
(E) a total storage capacity of 200 gallons per connection;
(F) a service pump capacity that provides each pump station or pressure plane with two or more pumps that have a total capacity of 2.0 gpm per connection or that have a total capacity of at least 1,000 gpm and the ability to meet peak hourly demands with the largest pump out of service, whichever is less. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gpm per connection are required at each pump station or pressure plane;
(G) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection. If pressure tanks are used, a maximum capacity of 30,000 gallons is sufficient for systems of up to 2,500 connections. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Alternate methods of pressure maintenance may be proposed and will be approved if the criteria contained in subsection (g)(5) of this section are met; and
(H) emergency power for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient emergency power must be provided to deliver a minimum of 0.35 gpm per connection and meet minimum pressure requirements to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has emergency power and is able to supply at least 0.35 gpm for each connection in the combined system. Emergency power must be maintained as required by §290.46(m)(8) of this title.
(3) Any community public water system that is an affected utility, defined in TWC §13.1394 or §13.1395 shall have an emergency preparedness plan approved by the executive director and must meet the requirements for emergency operations contained in subsection (h) or (i) of this section. This includes any affected utility that provides 100 gallons of elevated storage capacity per connection.
(c) Noncommunity water systems serving transient accommodation units. The following water capacity requirements apply to noncommunity water systems serving accommodation units such as hotel rooms, motel rooms, travel trailer spaces, campsites, and similar accommodations.
(1) Groundwater supplies must meet the following requirements.
(A) If fewer than 100 accommodation units without ground storage, the system must meet the following requirements:
(i) a well capacity of 1.0 gpm per unit; and
(ii) a pressure tank capacity of ten gallons per unit with a minimum of 220 gallons.
(B) For systems serving fewer than 100 accommodation units with ground storage or serving 100 or more accommodation units, the system must meet the following requirements:
(i) a well capacity of 0.6 gpm per unit;
(ii) a ground storage capacity of 35 gallons per unit;
(iii) two or more service pumps which have a total capacity of 1.0 gpm per unit; and
(iv) a pressure tank capacity of ten gallons per unit.
(2) Surface water supplies, regardless of size, must meet the following requirements:
(A) a raw water pump capacity of 0.6 gpm per unit with the largest pump out of service;
(B) a treatment plant capacity of 0.6 gpm per unit;
(C) a transfer pump capacity (where applicable) of 0.6 gpm per unit with the largest pump out of service;
(D) a ground storage capacity of 35 gallons per unit with a minimum of 1,000 gallons as clearwell capacity;
(E) two or more service pumps with a total capacity of 1.0 gpm per unit; and
(F) a pressure tank capacity of ten gallons per unit with a minimum requirement of 220 gallons.
(3) A noncommunity public water system that is an affected utility, defined in TWC §13.1394 or §13.1395 shall meet the requirements of subsection (h) or (i) of this section.
(d) Noncommunity water systems serving other than transient accommodation units.
(1) The following table is applicable to paragraphs (2) and (3) of this subsection and shall be used to determine the maximum daily demand for the various types of facilities listed.
Figure: 30 TAC §290.45(d)(1) (No change.)
(2) Groundwater supplies must meet the following requirements.
(A) Subject to the requirements of subparagraph (B) of this paragraph, if fewer than 300 persons per day are served, the system must meet the following requirements:
(i) a well capacity which meets or exceeds the maximum daily demand of the system during the hours of operation; and
(ii) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the executive director.
(B) Systems which serve 300 or more persons per day or serve fewer than 300 persons per day and provide ground storage must meet the following requirements:
(i) a well capacity which meets or exceeds the maximum daily demand;
(ii) a ground storage capacity which is equal to 50% of the maximum daily demand;
(iii) if the maximum daily demand is less than 15 gpm, at least one service pump with a capacity of three times the maximum daily demand;
(iv) if the maximum daily demand is 15 gpm or more, at least two service pumps with a total capacity of three times the maximum daily demand; and
(v) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the executive director.
(3) Each surface water supply or groundwater supply that is under the direct influence of surface water, regardless of size, must meet the following requirements:
(A) a raw water pump capacity which meets or exceeds the maximum daily demand of the system with the largest pump out of service;
(B) a treatment plant capacity which meets or exceeds the system's maximum daily demand;
(C) a transfer pump capacity (where applicable) sufficient to meet the maximum daily demand with the largest pump out of service;
(D) a clearwell capacity which is equal to 50% of the maximum daily demand;
(E) two or more service pumps with a total capacity of three times the maximum daily demand; and
(F) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the executive director.
(4) A noncommunity public water system that is an affected utility, defined in TWC §13.1394 or §13.1395, shall meet the requirements of subsection (h) or (i) of this section.
(e) Water wholesalers. The following additional requirements apply to systems which supply wholesale treated water to other public water supplies.
(1) All wholesalers must provide enough production, treatment, and service pumping capacity to meet or exceed the combined maximum daily commitments specified in their various contractual obligations. If a contract prohibits a purchaser from securing water from sources other than the contracted wholesaler during emergency operations, the wholesaler is responsible for meeting applicable capacity requirements.
(2) For wholesale water suppliers, minimum water system capacity requirements shall be determined by calculating the requirements based upon the number of retail customer service connections of that wholesale water supplier, if any, fire flow capacities, if required by §290.46(x) and (y) of this title and adding that amount to the maximum amount of water obligated or pledged under all wholesale contracts.
(3) Emergency power is required for each portion of the system which supplies more than 250 connections under direct pressure and does not provide an elevated storage capacity of at least 100 gallons per connection. If emergency power is required, it must be sufficient to deliver 20% of the minimum required service pump capacity and meet minimum pressure requirements in the event of the loss of normal power supply. When the wholesaler provides water through an air gap into the purchaser's storage facilities it will be the purchaser's responsibility to meet all minimum water system capacity requirements including emergency power. For wholesale contracts executed or amended on or after January 1, 2025, the contract must specify if the wholesaler will supply water, pressure, or both water and pressure during emergency operations to comply with TWC §13.1394 or §13.1395.
(4) A wholesaler that is an affected utility, defined in TWC §13.1394 or §13.1395, must meet the requirements specified in subsection (h) or (i) of this section.
(f) Purchased water systems. The following requirements apply only to systems which purchase treated water to meet all or part of their production, storage, service pump, or pressure maintenance capacity requirements.
(1) The water purchase contract must be available to the executive director in order that production, storage, service pump, or pressure maintenance capacity may be properly evaluated. For purposes of this section, a contract may be defined as a signed written document of specific terms agreeable to the water purchaser and the water wholesaler, or in its absence, a memorandum or letter of understanding between the water purchaser and the water wholesaler.
(2) The contract shall authorize the purchase of enough water to meet the monthly or annual needs of the purchaser.
(3) The contract shall also establish the maximum rate at which water may be drafted on a daily and hourly basis. In the absence of specific maximum daily or maximum hourly rates in the contract, a uniform purchase rate for the contract period will be used.
(4) The maximum authorized daily purchase rate specified in the contract, or a uniform purchase rate in the absence of a specified daily purchase rate, plus the actual production capacity of the system must be at least 0.6 gpm per connection.
(5) For systems which purchase water under direct pressure, the maximum hourly purchase authorized by the contract plus the actual service pump capacity of the system must be at least 2.0 gpm per connection or provide at least 1,000 gpm and be able to meet peak hourly demands, whichever is less.
(6) The purchaser is responsible for meeting all capacity requirements. If additional capacity to meet increased demands cannot be attained from the wholesaler through a new or amended contract, additional capacity must be obtained from water purchase contracts with other entities, new wells, or surface water treatment facilities. However, if the water purchase contract prohibits the purchaser from securing water from sources other than the wholesaler, the wholesaler is responsible for meeting applicable capacity requirements. For wholesale contracts executed or amended on or after January 1, 2025, the contract must specify if the wholesaler will supply water, pressure, or both water and pressure during emergency operations to comply with TWC §13.1394 or §13.1395.
(7) All other minimum capacity requirements specified in this section and §290.46(x) and (y) of this title shall apply.
(g) Alternative capacity requirements. Public water systems may request approval to meet alternative capacity requirements in lieu of the minimum capacity requirements specified in this section. Any water system requesting to use an alternative capacity requirement must demonstrate to the satisfaction of the executive director that approving the request will not compromise the public health or result in a degradation of service or water quality and comply with the requirements found in §290.46(x) and (y) of this title. Alternative capacity requirements are unavailable for groundwater systems serving fewer than 50 connections without total storage as specified in subsection (b)(1) of this section or for noncommunity water systems as specified in subsections (c) and (d) of this section.
(1) Alternative capacity requirements for public water systems may be granted upon request to and approval by the executive director. The request to use an alternative capacity requirement must include:
(A) a detailed inventory of the major production, pressurization, and storage facilities utilized by the system;
(B) records kept by the water system that document the daily production of the system. The period reviewed shall not be less than three years. The applicant may not use a calculated peak daily demand;
(C) data acquired during the last drought period in the region, if required by the executive director;
(D) the actual number of active connections for each month during the three years of production data;
(E) description of any unusual demands on the system such as fire flows or major main breaks that will invalidate unusual peak demands experienced in the study period;
(F) any other relevant data needed to determine that the proposed alternative capacity requirement will provide at least 35 psi in the public water system except during line repair or during firefighting when it cannot be less than 20 psi; and
(G) a copy of all data relied upon for making the proposed determination.
(2) Alternative capacity requirements for existing public water systems must be based upon the maximum daily demand for the system, unless the request is submitted by a licensed professional engineer in accordance with the requirements of paragraph (3) of this subsection. The maximum daily demand must be determined based upon the daily usage data contained in monthly operating reports for the system during a 36 consecutive month period. The 36 consecutive month period must end within 90 days of the date of submission to ensure the data is as current as possible.
(A) Maximum daily demand is the greatest number of gallons, including groundwater, surface water, and purchased water delivered by the system during any single day during the review period. Maximum daily demand excludes unusual demands on the system such as fire flows or major main breaks.
(B) For the purpose of calculating alternative capacity requirements, an equivalency ratio must be established. This equivalency ratio must be calculated by multiplying the maximum daily demand, expressed in gpm per connection, by a fixed safety factor and dividing the result by 0.6 gpm per connection. The safety factor shall be 1.15 unless it is documented that the existing system capacity is adequate for the next five years. In this case, the safety factor may be reduced to 1.05. The conditions in §291.93(3) of this title (relating to Adequacy of Water Utility Service) concerning the 85% rule shall continue to apply to public water systems that are also retail public utilities.
(C) To calculate the alternative capacity requirements, the equivalency ratio must be multiplied by the appropriate minimum capacity requirements specified in subsection (b) of this section. Standard rounding methods are used to round calculated alternative production capacity requirement values to the nearest one-hundredth.
(3) Alternative capacity requirements which are proposed and submitted by licensed professional engineers for review are subject to the following additional requirements.
(A) A signed and sealed statement by the licensed professional engineer must be provided which certifies that the proposed alternative capacity requirements have been determined in accordance with the requirements of this subsection.
(B) If the system is new or at least 36 consecutive months of data is not available, maximum daily demand may be based upon at least 36 consecutive months of data from a comparable public water system. A licensed professional engineer must certify that the data from another public water system is comparable based on consideration of the following factors: prevailing land use patterns (rural versus urban); number of connections; density of service populations; fire flow obligations; and socio-economic, climatic, geographic, and topographic considerations as well as other factors as may be relevant. The comparable public water system shall not exhibit any of the conditions listed in paragraph (6)(A) of this subsection.
(4) The executive director shall consider requests for alternative capacity requirements in accordance with the following requirements.
(A) For those requests submitted under the seal of a licensed professional engineer, the executive director must mail written acceptance or denial of the proposed alternative capacity requirements to the public water system within 90 days from the date of submission. If the executive director fails to mail written notification within 90 days, the alternative capacity requirements submitted by a licensed professional engineer automatically become the alternative capacity requirements for the public water system.
(B) If the executive director denies the request:
(i) the executive director shall mail written notice to the public water system identifying the specific reason or reasons for denial and allow 45 days for the public water system to respond to the reason(s) for denial;
(ii) the denial is final if no response from the public water system is received within 45 days of the written notice being mailed; and
(iii) the executive director must mail a final written approval or denial within 60 days from the receipt of any response timely submitted by the public water system.
(5) Although elevated storage is the preferred method of pressure maintenance for systems of over 2,500 connections, it is recognized that local conditions may dictate the use of alternate methods utilizing hydropneumatic tanks and on-site emergency power equipment. Alternative capacity requirements to the elevated storage requirements may be obtained based on request to and approval by the executive director. Special conditions apply to systems qualifying for an elevated storage alternative capacity requirement.
(A) The system must submit documentation sufficient to assure that the alternate method of pressure maintenance is capable of providing a safe and uninterrupted supply of water under pressure to the distribution system during all demand conditions.
(i) A signed and sealed statement by a licensed professional engineer must be provided which certifies that the pressure maintenance facilities are sized, designed, and capable of providing a minimum pressure of at least 35 psi at all points within the distribution network at flow rates of 1.5 gpm per connection or greater. In addition, the engineer must certify that the emergency power facilities are capable of providing the greater of the average daily demand or 0.35 gpm per connection while maintaining distribution pressures of at least 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC §13.1394 and §13.1395, respectively, and that emergency power facilities powering production and treatment facilities are capable of supplying at least 0.35 gpm per connection to storage.
(ii) The system's licensed professional engineer must conduct a hydraulic analysis of the system under peak conditions. This must include an analysis of the time lag between the loss of the normal power supply and the commencement of emergency power as well as the minimum pressure that will be maintained within the distribution system during this time lag. In no case shall this minimum pressure within the distribution system be less than 20 psi. The results of this analysis must be submitted to the executive director for review.
(iii) For existing systems, the system's licensed professional engineer must provide continuous pressure chart recordings of distribution pressures maintained during past power failures, if available. The period reviewed shall not be less than three years.
(iv) A public water system that is an affected utility, defined in TWC §13.1394 or §13.1395, must conduct the modeling requirements contained in clauses (i) - (iii) of this subparagraph using the requirements specified in subsection (h) or (i) of this section.
(B) Emergency power facilities must be maintained and provided with necessary appurtenances to assure immediate and dependable operation in case of normal power interruption. A public water system that is an affected utility, defined in TWC §13.1394 or §13.1395, must meet the requirements specified in subsection (h) or (i) of this section.
(i) The facilities must be serviced and maintained in accordance with Level 2 maintenance requirements contained in the current NFPA 110 Standard and the manufacturers' recommendations if the affected utility serves 1,000 connections or greater, or in accordance with manufacturer's recommendations and as prescribed in §290.46(m)(8) of this title if the affected utility serves fewer than 1,000 connections.
(ii) The switching gear must be capable of bringing the emergency power generating equipment on-line during a power interruption such that the pressure in the distribution network does not fall below 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC §13.1394 and §13.1395, respectively.
(iii) The minimum on-site fuel storage capacity shall be determined by the fuel demand of the emergency power facilities and the frequency of fuel delivery. An amount of fuel equal to that required to operate the emergency power facilities during emergency operations for a period of at least 48 hours must always be maintained on site or made readily available.
(iv) Residential rated mufflers or other means of effective noise suppression must be provided on each emergency power motor.
(C) Battery-powered or uninterrupted power supply pressure monitors and chart recorders which are configured to activate immediately upon loss of normal power must be provided for pressure maintenance facilities. These records must be kept for a minimum of three years and made available for review by the executive director. Records must include chart recordings of all power interruptions including interruptions due to periodic emergency power under-load testing and maintenance.
(6) Any alternative capacity requirement granted under this subsection is subject to review and revocation or revision by the executive director. If permission to use an alternative capacity requirement is revoked, the public water system must meet the applicable minimum capacity requirements of this section.
(A) The following conditions, if attributable to the alternative capacity requirements, may constitute grounds for revocation or revision of established alternative capacity requirements or for denial of new requests, if the condition occurred within the last 36 months:
(i) documented pressure below 35 psi at any time not related to line repair, except during firefighting when it cannot be less than 20 psi;
(ii) water outages due to high water usage;
(iii) mandatory water rationing due to high customer demand or overtaxed water production or supply facilities;
(iv) failure to meet a minimum capacity requirement or an established alternative capacity requirement;
(v) changes in water supply conditions or usage patterns which create a potential threat to public health; or
(vi) any other condition where the executive director finds that the alternative capacity requirement has compromised public health or resulted in a degradation of service or water quality.
(B) If the executive director finds any of the conditions specified in subparagraph (A) of this paragraph, the process for revocation or revision of an alternative capacity requirement shall be as follows, unless the executive director finds that failure of the service or other threat to public health and safety is imminent under subparagraph (C) of this paragraph.
(i) The executive director must mail the public drinking water system written notice of the executive director's intent to revoke or revise an alternative capacity requirement identifying the specific reason(s) for the proposed action.
(ii) The public water system has 30 days from the date the written notice is mailed to respond to the proposed action.
(iii) The public water system has 30 days from the date the written notice is mailed to request a meeting with the agency's public drinking water program personnel to review the proposal. If requested, such a meeting must occur within 45 days of the date the written notice is mailed.
(iv) After considering any response from or after any requested meeting with the public drinking water system, the executive director must mail written notification to the public drinking water system of the executive director's final decision to continue, revoke, or revise an alternative capacity requirement identifying the specific reason(s) for the decision.
(C) If the executive director finds that failure of the service or other threat to public health and safety is imminent, the executive director may issue written notification of the executive director's final decision to revoke or revise an alternative capacity requirement at any time.
(h) Affected utilities as defined in TWC §13.1394. This subsection applies to all affected utilities, as defined in TWC §13.1394, and is in addition to any other requirements pertaining to emergency power found in this chapter.
(1) Affected utilities must provide one or more of the following options to ensure the emergency operation of its water system during an extended power outage at a minimum of 20 psi, or a pressure approved by the executive director, whichever is applicable, and in accordance with the affected utility's approved emergency preparedness plan:
(A) the maintenance of automatically starting auxiliary generators;
(B) the sharing of auxiliary generator capacity with one or more affected utilities, including through participation in a statewide mutual aid program;
(C) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers, or conveyers of potable water or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;
(D) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;
(E) the use of on-site electrical generation or electrical distribution generation facilities;
(F) hardening of the electric transmission and electric distribution system against damage from natural disasters during an extended power outage;
(G) the maintenance of direct engine or right-angle drives;
(H) designation of the water system as a critical load facility or redundant, isolated or dedicated electrical feeds;
(I) water storage capabilities with sufficient storage to provide water to customers during an extended power outage;
(J) water supplies can be delivered from outside the service area of the affected utility by opening an emergency interconnect or using a water hauler;
(K) affected utility has ability to provide water through artesian flows;
(L) affected utility has ability to open valves between pressure zones to provide redundant interconnectivity between pressure zones;
(M) affected utility will implement emergency water demand rules to maintain emergency operations; or
(N) any other alternative determined by the executive director to be acceptable.
(2) Each affected utility that supplies, provides, or conveys raw surface water shall include in its emergency preparedness plan, under paragraph (1) of this subsection, provisions for demonstrating the capability of each raw water intake pump station, pump station, and pressure facility necessary to provide raw water service to its wholesale customers during emergencies. This does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract.
(3) Emergency generators used as part of an approved emergency preparedness plan must be inspected, maintained, tested, and operated in accordance with the manufacturer's specifications and as outlined in 290.46(m)(8) of this title.
(4) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.
(5) As soon as safe and practicable following the occurrence of a natural disaster, an affected utility must operate in accordance with its approved emergency preparedness plan, which may include using elevated storage. An affected utility may meet the requirements of TWC §13.1394 including having a currently approved emergency preparedness plan, in lieu of any other rules regarding elevated storage requirements, provided that, under normal operating conditions, the affected utility continues to meet the pressure requirements of §290.46(r) of this title (related to Minimum Acceptable Operating Practices for Public Drinking Water Systems) and the production, treatment, total storage, and service pump capacity requirements of this subchapter.
(6) An affected utility must maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment necessary to maintain emergency operations for at least 48 hours.
(7) Each affected utility must implement its emergency preparedness plan upon approval by the executive director.
(i) Affected utilities as defined by TWC §13.1395. This subsection applies to all affected utilities as defined by TWC §13.1395 and is in addition to any other requirements pertaining to emergency power found in this subchapter.
(1) Affected utilities must provide one of the following options of sufficient power to meet the capacity requirements of paragraph (1) or (2) of this subsection, whichever is applicable, and in accordance with the affected utility's approved emergency preparedness plan:
(A) the maintenance of automatically starting auxiliary generators;
(B) the sharing of auxiliary generator capacity with one or more affected utilities;
(C) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers, or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;
(D) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;
(E) the use of on-site electrical generation or electrical distributed generation facilities;
(F) hardening of the electric transmission and electric distribution system against damage from natural disasters during an extended power outage;
(G) the maintenance of direct engine or right-angle drives; or
(H) any other alternative determined by the executive director to be acceptable.
(2) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall install and maintain automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers. This does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract.
(3) Emergency generators used as part of an approved emergency preparedness plan must be maintained, tested, and operated in accordance with Level 2 maintenance requirements contained in the current NFPA 110 Standard and the manufacturers specifications if the affected utility serves 1,000 connections or greater, or the manufacturer's specifications and as outlined in §290.46(m)(8) of this title for affected utilities serving fewer than 1,000 connections.
(4) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.
(5) As soon as safe and practicable following the occurrence of a natural disaster, an affected utility must operate in accordance with its approved emergency preparedness plan, which may include using elevated storage. An affected utility may meet the requirements of TWC §13.1395, including having a currently approved emergency preparedness plan, in lieu of any other rules regarding elevated storage requirements, provided that, under normal operating conditions, the affected utility continues to meet the pressure requirements of §290.46(r) of this title and the production, treatment, total storage and service pump capacity requirements of this subchapter.
(6) An affected utility must maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment necessary to maintain emergency operations for at least 48 hours.
(7) Each affected utility must implement their emergency preparedness plan upon approval by the executive director.
§290.46.Minimum Acceptable Operating Practices for Public Drinking Water Systems.
(a) General. When a public drinking water supply system is to be established, plans shall be submitted to the executive director for review and approval prior to the construction of the system. All public water systems are to be constructed in conformance with the requirements of this subchapter and maintained and operated in accordance with the following minimum acceptable operating practices. Owners and operators shall allow entry to members of the commission and employees and agents of the commission onto any public or private property at any reasonable time for the purpose of inspecting and investigating conditions relating to public water systems in the state including the required elements of a sanitary survey as defined in §290.38 of this title (relating to Definitions). Members, employees, or agents acting under this authority shall observe the establishment's rules and regulations concerning safety, internal security, and fire protection, and if the property has management in residence, shall notify management or the person then in charge of his presence and shall exhibit proper credentials.
(b) Microbiological. Submission of samples for microbiological analysis shall be as required by Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems). Microbiological samples may be required by the executive director for monitoring purposes in addition to the routine samples required by the drinking water standards. These samples shall be submitted to an accredited laboratory. (A list of the accredited laboratories can be obtained by contacting the executive director.) The samples shall be submitted to the executive director in a manner prescribed by the executive director.
(c) Chemical. Samples for chemical analysis shall be submitted as directed by the executive director.
(d) Disinfectant residuals and monitoring. A disinfectant residual must be continuously maintained during the treatment process and throughout the distribution system.
(1) Disinfection equipment shall be operated and monitored in a manner that will assure compliance with the requirements of §290.110 of this title (relating to Disinfectant Residuals).
(2) The disinfection equipment shall be operated to maintain the following minimum disinfectant residuals in each finished water storage tank and throughout the distribution system at all times:
(A) a free chlorine residual of 0.2 milligrams per liter (mg/L); or
(B) a chloramine residual of 0.5 mg/L (measured as total chlorine) for those systems that distribute chloraminated water.
(e) Operation by trained and licensed personnel. Except as provided in paragraph (1) of this subsection, the production, treatment, and distribution facilities at the public water system must be operated at all times under the direct supervision of a water works operator who holds an applicable, valid license issued by the executive director. Except as provided in paragraph (1) of this subsection, all public water systems must use a water works operator who holds an applicable, valid license issued by the executive director to meet the requirements of this subsection. The licensed operator of a public water system may be an employee, contractor, or volunteer.
(1) Transient, noncommunity public water systems are exempt from the requirements of this subsection if they use only groundwater or purchase treated water from another public water system.
(2) All public water systems that are subject to the provisions of this subsection shall meet the following requirements.
(A) Public water systems shall not allow new or repaired production, treatment, storage, pressure maintenance, or distribution facilities to be placed into service without the prior guidance and approval of a licensed water works operator.
(B) Public water systems shall ensure that their operators are trained regarding the use of all chemicals used in the water treatment plant. Training programs shall meet applicable standards established by the Occupational Safety and Health Administration or the Texas Hazard Communication Act, Texas Health and Safety Code, Chapter 502.
(C) Public water systems using chlorine dioxide shall place the operation of the chlorine dioxide facilities under the direct supervision of a licensed operator who has a Class "C" or higher license.
(D) Effective September 1, 2016, reverse osmosis or nanofiltration membrane systems must have operators that have successfully completed at least one executive director-approved training course or event specific to the operations and maintenance of reverse osmosis or nanofiltration membrane treatment.
(3) Systems that only purchase treated water shall meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection.
(A) Purchased water systems serving no more than 250 connections must use an operator who holds a Class "D" or higher license.
(B) Purchased water systems serving more than 250 connections, but no more than 1,000 connections, must use an operator who holds a Class "C" or higher license.
(C) Purchased water systems serving more than 1,000 connections must use at least two operators who hold a Class "C" or higher license and who each work at least 16 hours per month at the public water system's treatment or distribution facilities.
(4) Systems that treat groundwater and do not treat surface water or groundwater that is under the direct influence of surface water shall meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection.
(A) Groundwater systems serving no more than 250 connections must use an operator with a Class "D" or higher license.
(B) Groundwater systems serving more than 250 connections, but no more than 1,000 connections, must use an operator with a Class "C" or higher groundwater license.
(C) Groundwater systems serving more than 1,000 connections must use at least two operators who hold a Class "C" or higher groundwater license and who each work at least 16 hours per month at the public water system's production, treatment, or distribution facilities.
(5) Systems that treat groundwater that is under the direct influence of surface water must meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection.
(A) Systems which serve no more than 1,000 connections and utilize cartridge or membrane filters must use an operator who holds a Class "C" or higher groundwater license and has completed a four-hour training course on monitoring and reporting requirements or who holds a Class "C" or higher surface water license and has completed the Groundwater Production course.
(B) Systems which serve more than 1,000 connections and utilize cartridge or membrane filters must use at least two operators who meet the requirements of subparagraph (A) of this paragraph and who each work at least 24 hours per month at the public water system's production, treatment, or distribution facilities.
(C) Systems which serve no more than 1,000 connections and utilize coagulant addition and direct filtration must use an operator who holds a Class "C" or higher surface water license and has completed the Groundwater Production course or who holds a Class "C" or higher groundwater license and has completed a Surface Water Production course. Effective January 1, 2007, the public water system must use at least one operator who has completed the Surface Water Production I course and the Surface Water Production II course.
(D) Systems which serve more than 1,000 connections and utilize coagulant addition and direct filtration must use at least two operators who meet the requirements of subparagraph (C) of this paragraph and who each work at least 24 hours per month at the public water system's production, treatment, or distribution facilities. Effective January 1, 2007, the public water system must use at least two operators who have completed the Surface Water Production I course and the Surface Water Production II course.
(E) Systems which utilize complete surface water treatment must comply with the requirements of paragraph (6) of this subsection.
(F) Each plant must have at least one Class "C" or higher operator on duty at the plant when it is in operation or the plant must be provided with continuous turbidity and disinfectant residual monitors with automatic plant shutdown and alarms to summon operators so as to ensure that the water produced continues to meet the commission's drinking water standards during periods when the plant is not staffed.
(6) Systems that treat surface water must meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection.
(A) Surface water systems that serve no more than 1,000 connections must use at least one operator who holds a Class "B" or higher surface water license. Part-time operators may be used to meet the requirements of this subparagraph if the operator is completely familiar with the design and operation of the plant and spends at least four consecutive hours at the plant at least once every 14 days and the system also uses an operator who holds a Class "C" or higher surface water license. Effective January 1, 2007, the public water system must use at least one operator who has completed the Surface Water Production I course and the Surface Water Production II course.
(B) Surface water systems that serve more than 1,000 connections must use at least two operators; one of the required operators must hold a Class "B" or higher surface water license and the other required operator must hold a Class "C" or higher surface water license. Each of the required operators must work at least 32 hours per month at the public water system's production, treatment, or distribution facilities. Effective January 1, 2007, the public water system must use at least two operators who have completed the Surface Water Production I course and the Surface Water Production II course.
(C) Each surface water treatment plant must have at least one Class "C" or higher surface water operator on duty at the plant when it is in operation or the plant must be provided with continuous turbidity and disinfectant residual monitors with automatic plant shutdown and alarms to summon operators so as to ensure that the water produced continues to meet the commission's drinking water standards during periods when the plant is not staffed.
(D) Public water systems shall not allow Class "D" operators to adjust or modify the treatment processes at surface water treatment plant unless an operator who holds a Class "C" or higher surface license is present at the plant and has issued specific instructions regarding the proposed adjustment.
(f) Operating records and reports. All public water systems must maintain a record of water works operation and maintenance activities and submit periodic operating reports.
(1) The public water system's operating records must be organized, and copies must be kept on file or stored electronically.
(2) The public water system's operating records must be accessible for review during inspections and be available to the executive director upon request.
(3) All public water systems shall maintain a record of operations.
(A) The following records shall be retained for at least two years:
(i) the amount of chemicals used:
(I) Systems that treat surface water or groundwater under the direct influence of surface water shall maintain a record of the amount of each chemical used each day.
(II) Systems that serve 250 or more connections or serve 750 or more people shall maintain a record of the amount of each chemical used each day.
(III) Systems that serve fewer than 250 connections, serve fewer than 750 people, and use only groundwater or purchased treated water shall maintain a record of the amount of each chemical used each week;
(ii) the volume of water treated and distributed:
(I) Systems that treat surface water or groundwater under the direct influence of surface water shall maintain a record of the amount of water treated and distributed each day.
(II) Systems that serve 250 or more connections or serve 750 or more people shall maintain a record of the amount of water distributed each day.
(III) Systems that serve fewer than 250 connections, serve fewer than 750 people, and use only groundwater or purchase treated water shall maintain a record of the amount of water distributed each week.
(IV) Systems that serve 250 or more connections or serve 750 or more people and also add chemicals or provide pathogen or chemical removal shall maintain a record of the amount of water treated each day.
(V) Systems that serve fewer than 250 connections, serve fewer than 750 people, use only groundwater or purchase treated water, and also add chemicals or provide pathogen or chemical removal shall maintain a record of the amount of water treated each week;
(iii) the date, location, and nature of water quality, pressure, or outage complaints received by the system and the results of any subsequent complaint investigation;
(iv) the dates that dead-end mains were flushed;
(v) the dates that storage tanks and other facilities were cleaned;
(vi) the maintenance records for water system equipment and facilities. For systems using reverse osmosis or nanofiltration, maintain records of each clean-in-place process including the date, duration, and procedure used for each event;
(vii) for systems that do not employ full-time operators to meet the requirements of subsection (e) of this section, a daily record or a monthly summary of the work performed and the number of hours worked by each of the part-time operators used to meet the requirements of subsection (e) of this section; and
(viii) the owner or manager of a public water system that is operated by a volunteer to meet the requirements of subsection (e) of this section, shall maintain a record of each volunteer operator indicating the name of the volunteer, contact information for the volunteer, and the time period for which the volunteer is responsible for operating the public water system. These requirements apply to full-time and part-time licensed volunteer operators. Part-time licensed volunteer operators are excluded from the requirements of clause (vii) of this subparagraph.
(B) The following records shall be retained for at least three years:
(i) copies of notices of violation and any resulting corrective actions. The records of the actions taken to correct violations of primary drinking water regulations must be retained for at least three years after the last action taken with respect to the particular violation involved;
(ii) copies of any public notice issued by the water system;
(iii) the disinfectant residual monitoring results from the distribution system;
(iv) the calibration records for laboratory equipment, flow meters, rate-of-flow controllers, on-line turbidimeters, and on-line disinfectant residual analyzers;
(v) the records of backflow prevention device programs;
(vi) the raw surface water monitoring results and source water monitoring plans required by §290.111 of this title (relating to Surface Water Treatment) must be retained for three years after bin classification required by §290.111 of this title;
(vii) notification to the executive director that a system will provide 5.5-log Cryptosporidium treatment in lieu of raw surface water monitoring;
(viii) except for those specified in subparagraphs (C)(iv) and (E)(i) of this paragraph, the results of all surface water treatment monitoring that are used to demonstrate log inactivation or removal;
(ix) free and total chlorine, monochloramine, ammonia, nitrite, and nitrate monitoring results if chloramines are used in the water system; and
(x) the records of treatment effectiveness monitoring for systems using reverse osmosis or nanofiltration membranes. Treatment effectiveness monitoring includes the parameters for determining when maintenance is required. Examples of parameters to be monitored include conductivity (or total dissolved solids) on each membrane unit, pressure differential across a membrane vessel, flow, flux, and water temperature. At a minimum, systems using reverse osmosis or nanofiltration membranes must monitor the conductivity (or total dissolved solids) of the feed and permeate water once per day.
(C) The following records shall be retained for a period of five years after they are no longer in effect:
(i) the records concerning a variance or exemption granted to the system;
(ii) Concentration Time (CT) studies for surface water treatment plants;
(iii) the Recycling Practices Report form and other records pertaining to site-specific recycle practices for treatment plants that recycle; and
(iv) the turbidity monitoring results and exception reports for individual filters as required by §290.111 of this title.
(D) The following records shall be retained for at least five years:
(i) the results of microbiological analyses;
(ii) the results of inspections (as required in subsection (m)(1) of this section) for all water storage and pressure maintenance facilities;
(iii) the results of inspections (as required by subsection (m)(2) of this section) for all pressure filters;
(iv) documentation of compliance with state approved corrective action plan and schedules required to be completed by groundwater systems that must take corrective actions;
(v) documentation of the reason for an invalidated fecal indicator source sample and documentation of a total coliform-positive sample collected at a location with conditions that could cause such positive samples in a distribution system;
(vi) notification to wholesale system(s) of a distribution coliform-positive sample for consecutive systems using groundwater;
(vii) Consumer Confidence Report compliance documentation;
(viii) records of the lowest daily residual disinfectant concentration and records of the date and duration of any failure to maintain the executive director-approved minimum specified disinfectant residual for a period of more than four hours for groundwater systems providing 4-log treatment;
(ix) records of executive director-specified compliance requirements for membrane filtration, records of parameters specified by the executive director for approved alternative treatment and records of the date and duration of any failure to meet the membrane operating, membrane integrity, or alternative treatment operating requirements for more than four hours for groundwater systems. Membrane filtration can only be used if it is approved by the executive director and if it can be properly validated;
(x) assessment forms, regardless of who conducts the assessment, and documentation of corrective actions completed or documentation of corrective actions required but not yet completed as a result of those assessments and any other available summary documentation of the sanitary defects and corrective actions taken in accordance with §290.109 of this title (relating to Microbial Contaminants) for executive director review;
(xi) seasonal public water systems shall maintain executive director-approved start-up procedures and certification documentation in accordance with §290.109 of this title for executive director review; and
(xii) records of any repeat sample taken that meets the criteria for an extension of the 24-hour period for collecting repeat samples under §290.109 of this title.
(E) The following records shall be retained for at least ten years:
(i) copies of Monthly Operating Reports and any supporting documentation including turbidity monitoring results of the combined filter effluent;
(ii) the results of chemical analyses;
(iii) any written reports, summaries, or communications relating to sanitary surveys of the system conducted by the system itself, by a private consultant, or by the executive director shall be kept for a period not less than ten years after completion of the survey involved;
(iv) copies of the Customer Service Inspection reports required by subsection (j) of this section;
(v) copy of any Initial Distribution System Evaluation (IDSE) plan, report, approval letters, and other compliance documentation required by §290.115 of this title (relating to Stage 2 Disinfection Byproducts (TTHM and HAA5));
(vi) state notification of any modifications to an IDSE report;
(vii) copy of any 40/30 certification required by §290.115 of this title;
(viii) documentation of corrective actions taken by groundwater systems in accordance with §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques);
(ix) any Sample Siting Plans required by §290.109(d)(6) of this title and monitoring plans required by §290.121(b) of this title (relating to Monitoring Plans); and
(x) records of the executive director-approved minimum specified disinfectant residual and executive director-approved membrane system integrity monitoring results for groundwater systems providing 4-log treatment, including wholesale, and consecutive systems, regulated under §290.116(c) of this title.
(F) A public water system shall maintain records relating to lead and copper requirements under §290.117 of this title (relating to Regulation of Lead and Copper) for no less than 12 years. Any system subject to the requirements of §290.117 of this title shall retain on its premises original records of all sampling data and analyses, reports, surveys, letters, evaluations, schedules, executive determinations, and any other information required by the executive director under §290.117 of this title. These records include, but are not limited to, the following items: tap water monitoring results including the location of each site and date of collection; certification of the volume and validity of first-draw-tap sample criteria via a copy of the laboratory analysis request form; where residents collected the sample; certification that the water system informed the resident of proper sampling procedures; the analytical results for lead and copper concentrations at each tap sample site; and designation of any substitute site not used in previous monitoring periods.
(G) A public water system shall maintain records relating to special studies and pilot projects, special monitoring, and other system-specific matters as directed by the executive director.
(4) Public water systems shall submit routine reports and any additional documentation that the executive director may require to determine compliance with the requirements of this chapter.
(A) The reports must be submitted to the Texas Commission on Environmental Quality, Water Supply Division, MC 155, P.O. Box 13087, Austin, Texas 78711-3087 by the tenth day of the month following the end of the reporting period.
(B) The reports must contain all the information required by the drinking water standards and the results of any special monitoring tests which have been required.
(C) The reports must be completed in ink, typed, or computer-printed and must be signed by the licensed water works operator.
(5) All public water systems that are affected utilities under TWC §13.1394 or §13.1395 must maintain the following records for as long as they are applicable to the system:
(A) An emergency preparedness plan approved by the executive director and a copy of the approval letter.
(B) All required operating, inspection, testing, and maintenance records for auxiliary power equipment, and associated components required to be maintained, or actions performed as prescribed in §290.46(m)(8) of this title.
(C) Copies of the manufacturer's specifications for all generators that are part of the approved emergency preparedness plan.
(g) Disinfection of new or repaired facilities. Disinfection by or under the direction of water system personnel must be performed when repairs are made to existing facilities and before new facilities are placed into service. Disinfection must be performed in accordance with American Water Works Association (AWWA) requirements and water samples must be submitted to an accredited laboratory. The sample results must indicate that the facility is free of microbiological contamination before it is placed into service. When it is necessary to return repaired mains to service as rapidly as possible, doses may be increased to 500 mg/L and the contact time reduced to 1/2 hour.
(h) Calcium hypochlorite. A supply of calcium hypochlorite disinfectant shall be kept on hand for use when making repairs, setting meters, and disinfecting new mains prior to placing them in service.
(i) Plumbing ordinance. Public water systems must adopt an adequate plumbing ordinance, regulations, or service agreement with provisions for proper enforcement to ensure that neither cross-connections nor other unacceptable plumbing practices are permitted (See §290.47(b) of this title (relating to Appendices)). Should sanitary control of the distribution system not reside with the purveyor, the entity retaining sanitary control shall be responsible for establishing and enforcing adequate regulations in this regard. The use of pipes and pipe fittings that contain more than 0.25% lead or solders and flux that contain more than 0.2% lead is prohibited for installation or repair of any public water supply and for installation or repair of any plumbing in a residential or nonresidential facility providing water for human consumption and connected to a public drinking water supply system. This requirement may be waived for lead joints that are necessary for repairs to cast iron pipe.
(j) Customer service inspections. A customer service inspection certificate shall be completed prior to providing continuous water service to new construction, on any existing service either when the water purveyor has reason to believe that cross-connections or other potential contaminant hazards exist, or after any material improvement, correction, or addition to the private water distribution facilities. Any customer service inspection certificate form which varies from the format found in commission Form 20699 must be approved by the executive director prior to being placed in use.
(1) Individuals with the following credentials shall be recognized as capable of conducting a customer service inspection certification.
(A) Plumbing Inspectors and Water Supply Protection Specialists licensed by the Texas State Board of Plumbing Examiners (TSBPE).
(B) Customer service inspectors who have completed a commission-approved course, passed an examination administered by the executive director, and hold current professional license as a customer service inspector.
(2) As potential contaminant hazards are discovered, they shall be promptly eliminated to prevent possible contamination of the water supplied by the public water system. The existence of a health hazard, as identified in §290.47(f) of this title, shall be considered sufficient grounds for immediate termination of water service. Service can be restored only when the health hazard no longer exists, or until the health hazard has been isolated from the public water system in accordance with §290.44(h) of this title (relating to Water Distribution).
(3) These customer service inspection requirements are not considered acceptable substitutes for and shall not apply to the sanitary control requirements stated in §290.102(a)(5) of this title (relating to General Applicability).
(4) A customer service inspection is an examination of the private water distribution facilities for the purpose of providing or denying water service. This inspection is limited to the identification and prevention of cross-connections, potential contaminant hazards, and illegal lead materials. The customer service inspector has no authority or obligation beyond the scope of the commission's regulations. A customer service inspection is not a plumbing inspection as defined and regulated by the TSBPE. A customer service inspector is not permitted to perform plumbing inspections. State statutes and TSBPE adopted rules require that TSBPE licensed plumbing inspectors perform plumbing inspections of all new plumbing and alterations or additions to existing plumbing within the municipal limits of all cities, towns, and villages which have passed an ordinance adopting one of the plumbing codes recognized by TSBPE. Such entities may stipulate that the customer service inspection be performed by the plumbing inspector as a part of the more comprehensive plumbing inspection. Where such entities permit customer service inspectors to perform customer service inspections, the customer service inspector shall report any violations immediately to the local entity's plumbing inspection department.
(k) Interconnection. No physical connection between the distribution system of a public drinking water supply and that of any other water supply shall be permitted unless the other water supply is of a safe, sanitary quality and the interconnection is approved by the executive director.
(l) Flushing of mains. All dead-end mains must be flushed at monthly intervals. Dead-end lines and other mains shall be flushed as needed if water quality complaints are received from water customers or if disinfectant residuals fall below acceptable levels as specified in §290.110 of this title.
(m) Maintenance and housekeeping. The maintenance and housekeeping practices used by a public water system shall ensure the good working condition and general appearance of the system's facilities and equipment. The grounds and facilities shall be maintained in a manner so as to minimize the possibility of the harboring of rodents, insects, and other disease vectors, and in such a way as to prevent other conditions that might cause the contamination of the water.
(1) Each of the system's ground, elevated, and pressure tanks shall be inspected annually by water system personnel or a contracted inspection service.
(A) Ground and elevated storage tank inspections must determine that the vents are in place and properly screened, the roof hatches closed and locked, flap valves and gasketing provide adequate protection against insects, rodents, and other vermin, the interior and exterior coating systems are continuing to provide adequate protection to all metal surfaces, and the tank remains in a watertight condition.
(B) Pressure tank inspections must determine that the pressure release device and pressure gauge are working properly, the air-water ratio is being maintained at the proper level, the exterior coating systems are continuing to provide adequate protection to all metal surfaces, and the tank remains in watertight condition. Pressure tanks provided with an inspection port must have the interior surface inspected every five years.
(C) All tanks shall be inspected annually to determine that instrumentation and controls are working properly.
(2) When pressure filters are used, a visual inspection of the filter media and internal filter surfaces shall be conducted annually to ensure that the filter media is in good condition and the coating materials continue to provide adequate protection to internal surfaces.
(3) When cartridge filters are used, filter cartridges shall be changed at the frequency required by the manufacturer, or more frequently if needed.
(4) All water treatment units, storage and pressure maintenance facilities, distribution system lines, and related appurtenances shall be maintained in a watertight condition and be free of excessive solids.
(5) Basins used for water clarification shall be maintained free of excessive solids to prevent possible carryover of sludge and the formation of tastes and odors.
(6) Pumps, motors, valves, and other mechanical devices shall be maintained in good working condition.
(7) Reverse osmosis or nanofiltration membrane systems shall be cleaned, or replaced, in accordance with the allowable operating conditions of the manufacturer and shall be based on one or more of the following: increased salt passage, increased or decreased pressure differential, and/or change in normalized permeate flow.
(8) Emergency generators must be appropriately tested and maintained monthly under at least 30% load based on the manufacturer's name plate kilowatt (kW) rating for at least 30 minutes, or as recommended by the manufacturer, to ensure functionality during emergency situations.
(A) Emergency generators operated at water systems serving 1,000 connections or greater must be maintained in accordance with Level 2 maintenance requirements contained in the current National Fire Protection Association (NFPA) 110 Standard and manufacturer's recommendation. In addition, the water system must maintain an inventory of operational maintenance items, lubricants, and coolants for critical generator components.
(B) Emergency generators operated at water systems serving fewer than 1,000 connections must be maintained according to clauses (i) - (x) of this subparagraph, supplemented with any additional requirements not listed below as prescribed in the manufacturer's specifications, or Level 2 maintenance requirements contained in NFPA 110 Standard. In addition, the public water system must maintain an inventory of operational maintenance items, lubricants, and coolants for critical generator components.
(i) Prior to monthly generator start-up, inspect and perform any needed maintenance on the generator fuel system.
(I) Document tank levels and inspect fuel tanks for fuel contamination and condensation in the portion of the tank occupied by air. If contamination is suspected, replace or polish the contaminated fuel before use.
(II) Inspect fuel lines and fittings for breaks and degradation. Replace fuel lines if needed.
(III) Inspect fuel filters and water separators for water accumulation, clogging and sediment buildup. Replace fuel filters and separators at the frequency recommended by the manufacturer, or as needed.
(IV) Inspect fuel transfer pumps, float switches and valves, where provided, between holding tanks and the generator to verify that they are operating properly.
(V) Where provided, inspect fuel tank grounding rods, cathodic and generator lightning protection for damage that may render the protection ineffective.
(ii) While the generator is operating under load, inspect the fuel pump to verify that it is operating properly.
(iii) Prior to monthly generator start up, inspect and perform any needed maintenance on the generator lubrication system.
(I) Inspect oil lines and oil reservoirs for adequate oil levels, leaks, breaks and degradation. Change oil at the frequency recommended by the manufacturer.
(II) Grease all bearing components and grease fittings at the frequency recommended by the manufacturer.
(iv) Prior to monthly generator start up, inspect and perform any needed maintenance on the generator coolant system.
(I) Inspect the block heater, coolant lines and coolant reservoirs for adequate coolant levels, leaks, breaks and degradation; replace as needed.
(II) Inspect coolant filters for clogging and sediment buildup. Replace coolant filters at the frequency recommended by the manufacturer, or as needed.
(III) Inspect the radiator, fan system, belts and air intake and filters for obstruction, cracks, breaks, and leaks; replace as needed.
(v) While the generator is operating under load, inspect the exhaust manifold and muffler to verify that they are not obstructed or leaking, are in good working condition and that fumes are directed away from enclosed areas.
(vi) Where a generator is located inside an enclosed structure, a carbon monoxide monitor equipped with automatic alarms and generator shutdowns must be present and operational.
(vii) Prior to monthly generator start up, inspect and perform any needed maintenance on the generator electrical system.
(I) Confirm that all batteries are mounted and properly secured. Inspect battery chargers, wiring and cables for damage, corrosion, connection continuity, and that all contacts are securely tightened onto battery terminals.
(II) Inspect each battery unit for adequate electrolyte levels, charge retention and appropriate discharge voltage.
(viii) While the generator is operating under load, inspect engine starters and alternators to verify that they are operating properly.
(ix) At least once per month, inspect Programmable Logic Controllers (PLC) and Uninterrupted Power Supplies (UPC), where applicable, to ensure that they are water-tight and not subject to floods, are properly ventilated, and that backup power supplies have adequate charge.
(x) At least once per month, inspect switch gears to ensure they are water-tight and in good, working condition.
(9) All critical components as described in the table in §290.47(c) associated to the source, treatment, storage, or other facilities necessary for the continued operations and distribution of water to customers must be protected from adverse weather conditions. Weatherization methods must be maintained in good condition and replaced as needed to ensure adequate protection.
(n) Engineering plans and maps. Plans, specifications, maps, and other pertinent information shall be maintained to facilitate the operation and maintenance of the system's facilities and equipment. The following records shall be maintained on file at the public water system and be available to the executive director upon request.
(1) Accurate and up-to-date detailed as-built plans or record drawings and specifications for each treatment plant, pump station, and storage tank shall be maintained at the public water system until the facility is decommissioned. As-built plans of individual projects may be used to fulfill this requirement if the plans are maintained in an organized manner.
(2) An accurate and up-to-date map of the distribution system shall be available so that valves and mains can be easily located during emergencies.
(3) Copies of well completion data as defined in §290.41(c)(3)(A) of this title (relating to Water Sources) shall be kept on file for as long as the well remains in service.
(o) Filter backwashing at surface water treatment plants. Filters must be backwashed when a loss of head differential of six to ten feet is experienced between the influent and effluent loss of head gauges or when the turbidity level at the effluent of the filter reaches 1.0 nephelometric turbidity unit (NTU).
(p) Data on public water system ownership and management. The agency shall be provided with information regarding public water system ownership and management.
(1) When a public water system changes ownership, a written notice of the transaction must be provided to the executive director. The grantee shall notify the executive director of the change in ownership within 30 days after the effective date of the change in ownership by providing the name of the grantor, the effective date of the change in ownership, the physical and mailing address and phone number of the grantee, the public water system's drinking water supply identification number, and any other information necessary to identify the transaction.
(2) On an annual basis, the owner of a public water system shall provide the executive director with a list of all the operators and operating companies that the public water system uses. The notice shall contain the name, contact information, work status, license number, and license class of each operator and the name and registration number of each operating company. Public water systems may report the list of operators and operating companies to the executive director by utilizing the Texas Commission on Environmental Quality (TCEQ) online "Operator Notice" form. If reporting cannot be accomplished utilizing the TCEQ online "Operator Notice" form, then a public water system may report the list of operators and operating companies on the written "Operator Notice" form to the executive director by mail, email or facsimile. (See §290.47(d) of this title).
(q) Special precautions, protective measures, and boil water notices. Special precautions, protective measures, and boil water notices shall be instituted by the public water system as specified in this subsection in the event of low distribution pressures (below 20 pounds per square inch (psi)), water outages, microbiological samples found to contain Escherichia coli (E. coli) (or other approved fecal indicator), failure to maintain adequate disinfectant residuals, elevated finished water turbidity levels, or other conditions which indicate that the potability of the drinking water supply has been compromised. Special precautions, protective measures, and boil water notices are corrective or protective actions which shall be instituted by the public water system to comply with the requirements of this subsection.
(1) A public water system shall issue a boil water notice, special precaution, or protective measure to customers throughout the distribution system or in the affected area(s) of the distribution system as soon as possible, but in no case later than 24 hours after the public water system has met any of the criteria described in subparagraph (A) and (B) of this paragraph.
(A) Situations requiring boil water notices:
(i) The flowchart found in §290.47(e) of this title shall be used to determine if a boil water notice shall be issued by the public water system to customers in the event of a loss of distribution system pressure.
(ii) A public water system shall issue a boil water notice to customers for a violation of the MCL for E. coli (or other approved fecal indicator) as described in §290.109(b)(1) of this title.
(iii) A public water system shall issue a boil water notice to customers if the combined filter effluent turbidity of the finished water, produced by a treatment plant that is treating surface water or groundwater under the direct influence of surface water, is above the turbidity level requirements as described in §290.122(a)(1)(B) of this title.
(iv) A public water system shall issue a boil water notice to customers if the public water system has failed to maintain adequate disinfectant residuals as described in subsection (d) of this section and as described in §290.110 of this title (relating to Disinfectant Residuals) for more than 24 hours.
(v) A public water system shall issue a boil water notice to customers if a waterborne disease outbreak occurs as defined in 40 Code for Federal Regulations §141.2.
(B) Situations requiring special precautions or protective measures may be determined by the public water system or at the discretion of the executive director, as described in paragraph (5) of this subsection.
(2) Boil water notices, special precautions, or protective measures shall be issued to customers by using one or more of the Tier 1 delivery methods as described in §290.122(a)(2) of this title (relating to Public Notification) and shall be issued using the applicable language and format specified by the executive director.
(3) A copy of boil water notice, special precaution, or protective measure issued shall be provided to the executive director electronically, within 24 hours or no later than the next business day after the issuance by the public water system, and a signed Certificate of Delivery shall be provided to the executive director within ten days after issuance by the public water system in accordance with §290.122(f) of this title.
(4) Boil water notices, special precautions, or protective measures shall be multilingual where appropriate, based upon local demographics.
(5) Special precautions, protective measures, and boil water notices may be required at the discretion of the executive director and shall be instituted by the public water system, upon written notification to the public water system, and shall remain in effect until the public water system meets the requirements of subparagraph (C) of this paragraph and paragraph (6) of this subsection.
(A) Circumstances warranting the exercise of such discretion may include:
(i) the public water system has failed to provide any of the required compliance information to the executive director as described in §290.111(h)(2) of this title (relating to Surface Water Treatment) and the failure results in the inability of the executive director to determine compliance as described in §290.111(i) of this title or the existence of a potential or actual health hazard, as described in §290.38 of this title (relating to Definitions); or
(ii) waterborne emergencies for situations that do not meet the definition of waterborne disease outbreak as defined in 40 Code of Federal Regulations §141.2, but that still have the potential to have serious adverse health effects as a result of short-term exposure. These can include, but are not limited to, outbreaks not related to treatment deficiencies, as well as situations that have the potential to cause outbreaks, such as failures or significant interruption in water treatment processes, natural disasters that disrupt the water supply or distribution system, chemical spills, or unexpected loading of possible pathogens into the source water.
(B) The executive director will provide written notification to the public water system in the event a public water system is required to institute special precautions, protective measures, or issue boil water notices to customers at the discretion of the executive director. Upon written notification from the executive director, the public water system shall implement special precautions, protective measures, or issue boil water notices to customers within 24 hours or within the time period specified by the executive director. The executive director may specify, in writing, additional required actions to the requirements described in paragraph (6) of this subsection for a public water system to rescind the notice.
(C) The public water system shall provide any required information to the executive director to document that the public water system has met the rescind requirements for special precautions, protective measures, and boil water notices required at the discretion of the executive director under this paragraph.
(6) Once the boil water notice, special precaution, or protective measure is no longer in effect, the public water system shall notify customers that the notice has been rescinded. A public water system shall not rescind a notice or notify customers that a notice has been rescinded until the public water system has met all the applicable requirements, as described in subparagraph (A) of this paragraph.
(A) Required actions prior to rescinding a boil water notice include:
(i) water distribution system pressures in excess of 20 psi are consistently being maintained throughout the distribution system in accordance with the flowchart found in §290.47(e) of this title (relating to Appendices);
(ii) a minimum of 0.2 mg/L free chlorine residual or 0.5 mg/L chloramine residual (measured as total chlorine) is present and is consistently being maintained in each finished water storage tank and throughout the distribution system as described in subsection (d) of this section;
(iii) finished water entering the distribution system, produced by a treatment plant that is treating surface water or groundwater under the direct influence of surface water, has a turbidity level that is consistently below 1.0 NTU and the affected areas of the distribution system have been thoroughly flushed;
(iv) additional actions may be required by the executive director, in writing, and these additional actions shall be completed and documentation provided to the executive director for approval prior to the public water system rescinding the notice, and
(v) water samples for microbiological analysis, marked as "special" on the laboratory sample submission form, were collected from representative locations throughout the distribution system or in the affected area(s) of the distribution system after the public water system has met all other applicable requirements of this paragraph and the water samples collected for microbiological analysis are found negative for coliform organisms. The water samples described in this subparagraph shall be analyzed at laboratories in accordance with §290.119 of this title (relating to Analytical Procedures).
(B) A public water system shall notify customers that the notice has been rescinded within 24 hours or no later than the next business day, using language and format specified by the executive director once the public water system has met the requirements of this paragraph. The method of delivery of the rescind notice must be in a manner similar to the original notice.
(C) The public water system shall provide a copy of the rescind notice, a copy of the associated microbiological laboratory analysis results, as required by subparagraph (A) of this paragraph, and a signed Certificate of Delivery to the executive director within ten days after the public water system has issued the rescind notice to customers in accordance with §290.122(f) of this title.
(r) Minimum pressures. All public water systems shall be operated to provide a minimum pressure of 35 psi throughout the distribution system under normal operating conditions. The system shall also be operated to maintain a minimum pressure of 20 psi during emergencies such as firefighting. As soon as safe and practicable following the occurrence of a natural disaster, a public water system that is an affected utility, as defined in TWC §13.1394 or §13.1395, shall maintain a minimum of 20 psi or a pressure approved by the executive director, or 35 psi, respectively, throughout the distribution system during an extended power outage.
(s) Testing equipment. Accurate testing equipment or some other means of monitoring the effectiveness of any chemical treatment or pathogen inactivation or removal processes must be used by the system.
(1) Flow-measuring devices and rate-of-flow controllers that are required by §290.42(b) and (d) of this title (relating to Water Treatment) shall be calibrated at least once every 12 months. Well meters required by §290.41(c)(3)(N) of this title shall be calibrated at least once every three years.
(2) Laboratory equipment used for compliance testing shall be properly calibrated.
(A) pH meters shall be properly calibrated.
(i) Benchtop pH meters shall be calibrated according to manufacturer specifications at least once each day.
(ii) The calibration of benchtop pH meters shall be checked with at least one buffer each time a series of samples is run, and if necessary, recalibrated according to manufacturer specifications.
(iii) On-line pH meters shall be calibrated according to manufacturer specifications at least once every 30 days.
(iv) The calibration of on-line pH meters shall be checked at least once each week with a primary standard or by comparing the results from the on-line unit with the results from a properly calibrated benchtop unit. If necessary, the on-line unit shall be recalibrated with primary standards.
(B) Turbidimeters shall be properly calibrated.
(i) Benchtop turbidimeters shall be calibrated with primary standards at least once every 90 days. Each time the turbidimeter is calibrated with primary standards, the secondary standards shall be restandardized.
(ii) The calibration of benchtop turbidimeters shall be checked with secondary standards each time a series of samples is tested, and if necessary, recalibrated with primary standards.
(iii) On-line turbidimeters shall be calibrated with primary standards at least once every 90 days.
(iv) The calibration of on-line turbidimeters shall be checked at least once each week with a primary standard, a secondary standard, or the manufacturer's proprietary calibration confirmation device or by comparing the results from the on-line unit with the results from a properly calibrated benchtop unit. If necessary, the on-line unit shall be recalibrated with primary standards.
(C) Chemical disinfectant residual analyzers shall be properly calibrated.
(i) The accuracy of manual disinfectant residual analyzers shall be verified at least once every 90 days using chlorine solutions of known concentrations.
(ii) The accuracy of continuous disinfectant residual analyzers shall be checked at least once every seven days with a chlorine solution of known concentration or by comparing the results from the on-line analyzer with the result of approved benchtop method in accordance with §290.119 of this title.
(iii) If a disinfectant residual analyzer produces a result which is not within 15% of the expected value, the cause of the discrepancy must be determined and corrected and, if necessary, the instrument must be recalibrated.
(D) Analyzers used to determine the effectiveness of chloramination in §290.110(c)(5) of this title shall be properly verified in accordance with the manufacturer's recommendations every 90 days. These analyzers include monochloramine, ammonia, nitrite, and nitrate equipment used by the public water system.
(E) Ultraviolet (UV) light disinfection analyzers shall be properly calibrated.
(i) The accuracy of duty UV sensors shall be verified with a reference UV sensor monthly, according to the UV sensor manufacturer.
(ii) The reference UV sensor shall be calibrated by the UV sensor manufacturer on a yearly basis, or sooner if needed.
(iii) If used, the UV Transmittance (UVT) analyzer shall be calibrated weekly according to the UVT analyzer manufacturer specifications.
(F) Systems must verify the performance of direct integrity testing equipment in a manner and schedule approved by the executive director.
(G) Conductivity (or total dissolved solids) monitors and pressure instruments used for reverse osmosis and nanofiltration membrane systems shall be calibrated at least once every 12 months.
(H) Any temperature monitoring devices used for reverse osmosis and nanofiltration shall be verified and calibrated in accordance with the manufacturer's specifications.
(t) System ownership. All community water systems shall post a legible sign at each of its production, treatment, and storage facilities. The sign shall be located in plain view of the public and shall provide the name of the water supply and an emergency telephone number where a responsible official can be contacted.
(u) Abandoned wells. Abandoned public water supply wells owned by the system must be plugged with cement according to 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers). Wells that are not in use and are non-deteriorated as defined in those rules must be tested every five years or as required by the executive director to prove that they are in a non-deteriorated condition. The test results shall be sent to the executive director for review and approval. Deteriorated wells must be either plugged with cement or repaired to a non-deteriorated condition.
(v) Electrical wiring. All water system electrical wiring must be securely installed in compliance with a local or national electrical code.
(w) Security. All systems shall maintain internal procedures to notify the executive director by a toll-free reporting phone number immediately of the following events, if the event may negatively impact the production or delivery of safe and adequate drinking water:
(1) an unusual or unexplained unauthorized entry at property of the public water system;
(2) an act of terrorism against the public water system;
(3) an unauthorized attempt to probe for or gain access to proprietary information that supports the key activities of the public water system;
(4) a theft of property that supports the key activities of the public water system; or
(5) a natural disaster, accident, or act that results in damage to the public water system.
(x) Public safety standards. This subsection only applies to a municipality with a population of 1,000,000 or more, with a public utility within its corporate limits; a municipality with a population of more than 36,000 and less than 41,000 located in two counties, one of which is a county with a population of more than 1.8 million; a municipality, including any industrial district within the municipality or its extraterritorial jurisdiction (ETJ), with a population of more than 7,000 and less than 30,000 located in a county with a population of more than 155,000 and less than 180,000; or a municipality, including any industrial district within the municipality or its ETJ, with a population of more than 11,000 and less than 18,000 located in a county with a population of more than 125,000 and less than 230,000.
(1) In this subsection:
(A) "Regulatory authority" means, in accordance with the context in which it is found, either the commission or the governing body of a municipality.
(B) "Public utility" means any person, corporation, cooperative corporation, affected county, or any combination of these persons or entities, other than a municipal corporation, water supply or sewer service corporation, or a political subdivision of the state, except an affected county, or their lessees, trustees, and receivers, owning or operating for compensation in this state equipment or facilities for the transmission, storage, distribution, sale, or provision of potable water to the public or for the resale of potable water to the public for any use or for the collection, transportation, treatment, or disposal of sewage or other operation of a sewage disposal service for the public, other than equipment or facilities owned and operated for either purpose by a municipality or other political subdivision of this state or a water supply or sewer service corporation, but does not include any person or corporation not otherwise a public utility that furnishes the services or commodity only to itself or its employees or tenants as an incident of that employee service or tenancy when that service or commodity is not resold to or used by others.
(C) "Residential area" means:
(i) an area designated as a residential zoning district by a governing ordinance or code or an area in which the principal land use is for private residences;
(ii) a subdivision for which a plat is recorded in the real property records of the county and that contains or is bounded by public streets or parts of public streets that are abutted by residential property occupying at least 75% of the front footage along the block face; or
(iii) a subdivision a majority of the lots of which are subject to deed restrictions limiting the lots to residential use.
(D) "Industrial district" has the meaning assigned by Texas Local Government Code, §42.044, and includes an area that is designated by the governing body of a municipality as a zoned industrial area.
(2) When the regulatory authority is a municipality, it shall by ordinance adopt standards for installing fire hydrants in residential areas in the municipality. These standards must, at a minimum, follow current AWWA standards pertaining to fire hydrants and the requirements of §290.44(e)(6) of this title.
(3) When the regulatory authority is a municipality, it shall by ordinance adopt standards for maintaining sufficient water pressure for service to fire hydrants adequate to protect public safety in residential areas in the municipality. The standards specified in paragraph (4) of this subsection are the minimum acceptable standards.
(4) A public utility shall deliver water to any fire hydrant connected to the public utility's water system located in a residential area so that the flow at the fire hydrant is at least 250 gallons per minute for a minimum period of two hours while maintaining a minimum pressure of 20 psi throughout the distribution system during emergencies such as firefighting. That flow is in addition to the public utility's maximum daily demand for purposes other than firefighting.
(5) When the regulatory authority is a municipality, it shall adopt the standards required by this subsection within one year of the effective date of this subsection or within one year of the date this subsection first applies to the municipality, whichever occurs later.
(6) A public utility shall comply with the standards established by a municipality under both paragraphs (2) and (3) of this subsection within one year of the date the standards first apply to the public utility. If a municipality has failed to comply with the deadline required by paragraph (5) of this subsection, then a public utility shall comply with the standards specified in paragraphs (2) and (4) of this subsection within two years of the effective date of this subsection or within one year of the date this subsection first applies to the public utility, whichever occurs later.
(y) Fire hydrant flow standards.
(1) In this subsection:
(A) "Municipal utility" means a retail public utility, as defined by Texas Water Code (TWC), §13.002, that is owned by a municipality.
(B) "Residential area" means an area used principally for private residences that is improved with at least 100 single-family homes and has an average density of one home per half acre.
(C) "Utility" includes a "public utility" and "water supply or sewer service corporation" as defined by TWC §13.002.
(2) The governing body of a municipality by ordinance may adopt standards set by the executive director requiring a utility to maintain a minimum sufficient water flow and pressure to fire hydrants in a residential area located in the municipality or the municipality's ETJ. The municipality must submit a signed copy of the ordinance to the executive director within 60 days of the adoption of an ordinance by its governing body.
(3) In addition to a utility's maximum daily demand, the utility must provide, for purposes of emergency fire suppression:
(A) a minimum sufficient water flow of at least 250 gallons per minute for at least two hours; and
(B) a minimum sufficient water pressure of at least 20 psi.
(4) If a municipality adopts standards for a minimum sufficient water flow and pressure to fire hydrants, the municipality must require a utility to maintain at least the minimum sufficient water flow and pressure described by paragraph (3) of this subsection in fire hydrants in a residential area located within the municipality or the municipality's ETJ. If the municipality adopts a fire flow standard exceeding the minimum standards set in paragraph (3) of this subsection, the standard adopted by the municipality must be based on:
(A) the density of connections;
(B) service demands; and
(C) other relevant factors.
(5) If the municipality owns a municipal utility, it may not require another utility located in the municipality or the municipality's ETJ to provide water flow and pressure in a fire hydrant greater than that provided by the municipal utility as determined by the executive director.
(6) If the municipality does not own a municipal utility, it may not require a utility located in the municipality or the municipality's ETJ to provide a minimum sufficient water flow and pressure greater than the standard established by paragraph (3) of this subsection.
(7) An ordinance under paragraph (2) of this subsection may not require a utility to build, retrofit, or improve infrastructure in existence at the time the ordinance is adopted.
(8) A municipality with a population of less than 1.9 million that adopts standards under paragraph (2) of this subsection or that seeks to use a utility's water for emergency fire suppression shall enter into a written memorandum of understanding with the utility.
(A) The memorandum of understanding must provide for:
(i) the necessary testing of fire hydrants; and
(ii) other relevant issues pertaining to the use of the water and maintenance of the fire hydrants to ensure compliance with this subsection.
(B) The municipality must submit a signed copy of the memorandum of understanding to the executive director within 60 days of the execution of the memorandum of understanding between its governing body and the utility.
(9) A municipality may notify the executive director of a utility's failure to comply with a standard adopted under paragraph (3) of this subsection.
(10) On receiving the notice described by paragraph (9) of this subsection, the executive director shall require a utility in violation of a standard adopted under this subsection to comply within a reasonable time established by the executive director.
(z) Nitrification Action Plan (NAP). Any water system distributing chloraminated water must create a NAP. The system must create a written NAP that:
(1) contains the system-specific plan for monitoring free ammonia, monochloramine, total chlorine, nitrite, and nitrate levels;
(2) contains system-specific action levels of the above monitored chemicals where action must be taken;
(3) contains specific corrective actions to be taken if the action levels are exceeded; and
(4) is maintained as part of the system's monitoring plan in §290.121 of this title.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 1, 2023.
TRD-202304415
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 21, 2023
Proposal publication date: July 14, 2023
For further information, please call: (512) 239-6087
SUBCHAPTER L. STANDARDS OF EMERGENCY OPERATIONS
The Texas Commission on Environmental Quality (TCEQ) adopts amendments to 30 Texas Administrative Code §§291.160, 291.161, and 291.162, and the addition of new §291.163.
Amended §291.160 and §291.161 are adopted without changes to the text as published in the July 14, 2023, issue of the Texas Register (48 TexReg 3889) and, therefore, will not be republished. Section 291.162 and the addition of new §291.163 are adopted with changes due to capitalization and punctuation corrections and, therefore, will be republished.
Background and Summary of the Factual Basis for the Adopted Rules
In 2021, the 87th Legislature passed Senate Bill (SB) 3, which relates to preparing for, preventing, and responding to weather emergencies and power outages. SB 3 requires that certain water service providers ensure emergency operations during an extended power outage. SB 3 amended Texas Water Code (TWC), Chapter 13, by adding §13.1394, Standards of Emergency Operations, and amending §13.1395, Standards of Emergency Operations in Certain Counties. New TWC §13.1394, requires that affected utilities create an emergency preparedness plan that shows how an affected utility will provide emergency operations and submit that plan to the TCEQ for review and approval. TWC §13.1394, stipulates that a water service provider must maintain 20 pounds per square inch (psi) of pressure, or a water pressure approved by the executive director, during power outages that last longer than 24 hours as soon as it is safe and practicable following a natural disaster. The statute also specifies that the TCEQ has 90 days to review the plan, once the plan is submitted, and either approve it or recommend changes. Once the TCEQ approves the plan the water service provider must operate in accordance with the plan and maintain any generators in accordance with manufacturer's specifications. TWC §13.1394 also specifies that the TCEQ will conduct inspections to ensure compliance and that waivers to these requirements are available under certain circumstances. SB 3 stated in Section 36(b) that each affected utility was to submit to the TCEQ an emergency preparedness plan required by TWC §13.1394, no later than March 1, 2022, and stated in Section 36(c) that the emergency preparedness plan was to be implemented no later than July 1, 2022, unless the affected utility had obtained an adjusted, TCEQ approved timeline. The TCEQ notes that these additions to the TWC, made by SB 3, give the TCEQ the authority to regulate water service providers that have not previously been regulated by the TCEQ because, as the definition appears in TWC §13.1394, not all affected utilities are public water systems.
Amended TWC §13.1395, excludes from the requirement of creating an Emergency Preparedness Plan those raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies pursuant to contract.
In response to the widespread power and equipment failures and drinking water outages and shortages during Winter Storm Uri in 2021, the TCEQ organized an after-action review to evaluate the factors that impacted public water systems across the state. This review resulted in findings and recommendations to enhance and integrate additional public water system critical infrastructure resiliency measures. These findings and recommendations were presented to the TCEQ during a work session, held on May 19, 2022.
Section by Section Discussion
§291.160, Purpose
The TCEQ adopts to amend §291.160 to add a reference to TWC §13.1394 and to adjust the verb tense of the section based on the addition.
§291.161, Definitions
The TCEQ adopts this rulemaking to amend the definition of "affected utility" by adding language to encompass the definitions of affected utility in TWC §13.1394 and §13.1395. The TCEQ adopts these amendments to reflect the requirements in TWC §13.1394(a)(1) and §13.1395(a)(1). Current subsection lettering will be revised to accommodate the amended definition.
The TCEQ adopts this rulemaking to amend the definition of "emergency operations" to clarify the minimum water pressure that affected utilities must provide during emergency operations. This clarification is consistent with the requirements under TWC §13.1394, which is 20 pounds per square inch, or a pressure approved by the executive director, and TWC §13.1395, which is 35 pounds per square inch.
§291.162, Emergency Operation of An Affected Utility as Defined in TWC §13.1395
The TCEQ adopts this rulemaking to amend the title of §291.162 to clarify that this section is applicable to affected utilities as defined in TWC §13.1395.
The TCEQ adopts this rulemaking to amend §291.162(d) to clarify that this subsection does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract as stated in TWC §13.1395.
The TCEQ adopts this rulemaking to amend §291.162(e) to revise the appendix reference from "Appendix J" to "Appendix G2" for consistency with adopted amendment to §290.47.
The TCEQ adopts this rulemaking to amend §291.162(f) with language that refers to the generator maintenance requirements listed in adopted amendments to §290.46(m)(8). This adopted change is a recommendation approved by the TCEQ as a result of the After-Action Review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions will have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to amend §291.162(i) to change "subchapter" to "section" based on the adopted addition of §291.163 to the subchapter. This amendment will make language consistent with adopted additions to §291.163(i).
The TCEQ adopts this rulemaking to delete §291.162(j) and (k) because the deadlines listed in these subsections have passed and are no longer applicable; subsection lettering will be revised to accommodate these deletions.
The TCEQ adopts this rulemaking to amend new §291.162(j) to clarify that affected utilities created after December 31, 2012, are required to have emergency preparedness plans approved and implemented prior to providing water to customers.
§291.163, Emergency Operation of an Affected Utility as Defined in TWC §13.1394
The TCEQ adopts this rulemaking to add new §291.163 to provide regulatory requirements for affected utilities as defined in TWC §13.1394.
The TCEQ adopts this rulemaking to add §291.163(a) which requires an affected utility to adopt and submit to the executive director for approval an emergency preparedness plan that demonstrates the utility's ability to provide emergency operations and a timeline for implementing the plan, as required by TWC §13.1394(b)(2)(A) and §13.1394(b)(2)(B).
The TCEQ adopts this rulemaking to add §291.163(b) which requires the executive director to review the emergency preparedness plan submitted by an affected utility, to determine if the plan is acceptable, and to request additional information or recommend changes if the plan is not acceptable. The executive director's request for information or recommended changes must be made on or before the 90th day after the executive director receives the plan as required by TWC §13.1394(c).
The TCEQ adopts this rulemaking to add §291.163(c), to include §291.163(c)(1) through §291.163(c)(14), which provides the 14 emergency operation options available to affected utilities as listed in TWC §13.1394(c)(1) through §13.1394(c)(14).
The TCEQ adopts this rulemaking to add §291.163(d) which requires affected utilities that provide raw surface water to wholesale customers to include in their emergency preparedness plan how they intend to provide raw water services to their wholesale customers during emergencies. This requirement does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract under TWC §13.1394(d).
The TCEQ adopts this rulemaking to add §291.163(e) which addresses the requirement for the TCEQ to develop an emergency preparedness plan template. This new subsection informs affected utilities that they may use the template included in Appendix G1 of §290.47 to create their emergency preparedness plan as required under TWC §13.1394(g).
The TCEQ adopts this rulemaking to add §291.163(f) which requires that any generator used as part of an approved emergency preparedness plan must be inspected, operated, and maintained according to the manufacturer's specifications, per TWC §13.1394(h) and the requirements listed in §290.46(m)(8), which are adopted in a companion rulemaking in response to the After-Action Review, which found that additional maintenance to critical equipment and increased protection against adverse weather conditions will have reduced the impacts to water infrastructure during the winter storm.
The TCEQ adopts this rulemaking to add §291.163(g) which allows the executive director to grant an affected utility a financial waiver to the requirement of submitting an emergency preparedness plan pursuant to TWC §13.1394(j). The executive director will consider whether complying with the emergency preparedness plan requirements will cause a significant financial burden on the affected utilities customers. The adopted rule requires that the affected utility submit documentation to the executive director that must demonstrate the significant financial burden on customers before a waiver is granted.
The TCEQ adopts this rulemaking to add §291.163(h) which allows an affected utility to adopt and enforce limitations on water use while the utility is providing emergency operations pursuant to TWC §13.1394(k).
The TCEQ adopts this rulemaking to add §291.163(i), which states that information provided by an affected utility under this section is confidential and is not subject to disclosure under Texas Government Code, Chapter 552 as stated in TWC §13.1394(l).
The TCEQ adopts this rulemaking to add §291.163(j), which provides that affected utilities which are established after December 31, 2022, must have an emergency preparedness plan approved and implemented prior to providing water to customers. The TCEQ adopts this addition based on emergency preparedness plan submission and implementation deadlines in March and July 2022, respectively, included in SB 3 for existing affected utilities.
The TCEQ adopts this rulemaking to add §291.163(k) which provides that an affected utility that cannot provide a minimum of 20 psi, or a water pressure approved by the TCEQ, during emergency operations to revise and submit their emergency preparedness plan within 180 days of restoration of power, and that based on a review of the plan, the executive director may require additional or alternative auxiliary emergency facilities to implement TWC §13.1394(b)(1).
Final Regulatory Impact Determination
The TCEQ reviewed this rulemaking in light of the regulatory analysis requirements of Texas Government Code §2001.0225 and determined that the rulemaking is not subject to §2001.0225. A "major environmental rule" means a rule with a specific intent to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.
First, the rulemaking does not meet the statutory definition of a "major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the rulemaking is to ensure that affected utilities have emergency preparedness plans to provide potable water service during emergency operations.
Second, the rulemaking does not meet the statutory definition of a "major environmental rule" because the rules will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. It is not anticipated that the cost of complying with the adopted rules will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.
Finally, the rulemaking does not meet any of the four applicability requirements for a "major environmental rule" listed in Texas Government Code §2001.0225(a). Section 2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of the preceding four applicability requirements because this rulemaking: does not exceed any standard set by federal law for public water systems and is consistent with and no less stringent than federal rules; does not exceed any express requirement of state law under Texas Health and Safety Code (THSC), Chapter 341, Subchapter C; does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government; and is not based solely under the general powers of the agency, but specifically under TWC §5.107 which establishes the TCEQ's authority to collect regulatory assessments from utility service providers under TWC Chapter 13; THSC §341.031, which allows the TCEQ to establish public drinking water standards and adopt and enforce rules to implement the federal Safe Drinking Water Act, as well as under SB 3, which authorizes the TCEQ to promulgate rules in its implementation of TWC §13.1394 and §13.1395, and the other general powers of the TCEQ.
The TCEQ invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No written comments on the Draft Regulatory Impact Analysis Determination were received.
Takings Impact Assessment
The TCEQ evaluated this rulemaking and performed a preliminary assessment of whether these rules constitute a taking under Texas Government Code, Chapter 2007.
The TCEQ adopts these rules to clarify existing requirements and for the specific purpose of implementing SB 3, 87th R.S. (2021), which requires the TCEQ to receive, review, and monitor compliance with affected utilities' emergency preparedness plans to ensure provision of potable water service during emergency operations.
The TCEQ's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these rules based upon exceptions to applicability in Texas Government Code §2007.003(b)(13). The rulemaking is an action that is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the public health and safety purpose; and that does not impose a greater burden than is necessary to achieve the public health and safety purpose. Texas Government Code §2007.003(b)(13). Lack of potable water service during emergency operations constitutes a real and substantial threat to public health and safety and requires appropriate governmental regulation. The rules significantly advance the public health and safety purpose by ensuring appropriate governmental regulation of affected utilities' emergency preparedness plans and do so in a way that does not impose a greater burden than is necessary to achieve the public health and safety purpose.
Further, the TCEQ has determined that promulgation and enforcement of these rules will be neither a statutory nor a constitutional taking of private real property. Specifically, there are no burdens imposed on private real property under the rule because the rules neither relate to, nor have any impact on, the use or enjoyment of private real property, and there will be no reduction in property value as a result of these rules. The rules require affected utilities to submit emergency preparedness plans, comply with their emergency preparedness plans, and operate under their emergency preparedness plans during emergency operations. Therefore, the rules will not constitute a taking under Texas Government Code Chapter 2007.
Consistency with the Coastal Management Program
The TCEQ reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program.
The TCEQ invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received during the public comment period.
Public Comment
The TCEQ held a public hearing on August 11, 2023. The comment period closed at 11:59 p.m. on August 14, 2023. No comments were received on the proposed rule. However, public comments were received regarding Chapter 290 which are addressed in that concurrent rulemaking.
Statutory Authority
These amendments are adopted under the authority of the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; and Texas Health and Safety Code (THSC), §341.0315, which requires public water systems to comply with commission rules adopted to ensure the supply of safe drinking water.
The adopted amendments implement TWC, §13.1394, as added by requirements in Senate Bill (SB) 3 of the 87th Texas Legislative Session (2021), and TWC, §13.1395. Additional commission adopted amendments provide clarity to existing rules.
§291.162.Emergency Operation of an Affected Utility as Defined in TWC §13.1395.
(a) An affected utility shall adopt and submit to the executive director for its approval an emergency preparedness plan that demonstrates the utility's ability to provide emergency operations.
(b) The executive director shall review an emergency preparedness plan submitted by an affected utility. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan.
(c) An emergency preparedness plan shall provide for one of the following:
(1) the maintenance of automatically starting auxiliary generators;
(2) the sharing of auxiliary generator capacity with one or more affected utilities;
(3) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;
(4) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;
(5) the use of on-site electrical generation or distributed generation facilities;
(6) hardening the electric transmission and distribution system serving the water system;
(7) for existing facilities, the maintenance of direct engine or right angle drives; or
(8) any other alternative determined by the executive director to be acceptable.
(d) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers. This subsection does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract.
(e) The affected utility may use the template in Appendix G2 of §290.47 of this title (relating to Appendices) to assist in preparation of the plan.
(f) An emergency generator used as part of an approved emergency preparedness plan must be inspected, operated, and maintained according to the manufacturer's specifications and the requirements listed in §290.46(m)(8) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).
(g) The executive director may grant a waiver of the requirements of this section to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.
(h) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.
(i) Information provided by an affected utility under this section is confidential and is not subject to disclosure under Texas Government Code, Chapter 552.
(j) Affected utilities which are established after December 31, 2012 must have emergency preparedness plans approved and implemented prior to providing water to customers.
(k) An affected utility may file with the executive director a written request for an extension, not to exceed 90 days, of the date by which the affected utility is required under this subchapter to submit the affected utility's emergency preparedness plan or the date the affected utility is required to implement the plan.
(l) If an affected utility fails to provide a minimum of 35 pounds per square inch throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.
§291.163.Emergency Operation of an Affected Utility as Defined in TWC §13.1394.
(a) An affected utility shall adopt and submit to the executive director for approval an emergency preparedness plan that demonstrates the utility's ability to provide emergency operations and a timeline for implementing the plan.
(b) The executive director shall review an emergency preparedness plan submitted by an affected utility. If the executive director determines that the plan is not acceptable, the executive director shall request additional information or recommend changes to the plan. The executive director shall communicate to the affected utility the request for information or recommendations on or before the 90th day after the executive director receives the plan.
(c) An emergency preparedness plan shall include one or more of the following:
(1) the maintenance of automatically starting auxiliary generators;
(2) the sharing of auxiliary generator capacity with one or more affected utilities, including through participation in a statewide mutual aid program;
(3) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;
(4) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;
(5) the use of on-site electrical generation or distributed generation facilities;
(6) hardening the electric transmission and distribution system serving the water system;
(7) the maintenance of direct engine or right-angle drives;
(8) designation of the water system as a critical load facility or redundant, isolated, or dedicated electrical feeds;
(9) water storage capabilities;
(10) water supplies delivered from outside the service area of the affected utility;
(11) the ability to provide water through artesian flows;
(12) redundant interconnectivity between pressure zones;
(13) emergency water demand rules to maintain emergency operations; or
(14) any other alternative determined by the executive director to be acceptable.
(d) Each affected utility that supplies, provides, or conveys raw surface water to wholesale customers shall include in its emergency preparedness plan provisions for demonstrating the capability of each raw water intake pump station, pump station, and pressure facility necessary to provide water service to its wholesale customers. This subsection does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract.
(e) The affected utility may use the template in Appendix G1 of §290.47 of this title (relating to Appendices) to assist in preparation of the plan.
(f) An emergency generator used as part of an approved emergency preparedness plan must be inspected, operated, and maintained according to the manufacturer's specifications and the requirements listed in §290.46(m)(8) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).
(g) The executive director may grant a waiver of the requirements of this section to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.
(h) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.
(i) Information provided by an affected utility under this section is confidential and is not subject to disclosure under Texas Government Code, Chapter 552.
(j) Affected utilities, established after December 31, 2022, must have emergency preparedness plans approved and implemented prior to providing water to customers.
(k) If an affected utility fails to provide a minimum of 20 psi, or a water pressure approved by the commission, throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 1, 2023.
TRD-202304416
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 21, 2023
Proposal publication date: July 14, 2023
For further information, please call: (512) 239-6087