PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 290. PUBLIC DRINKING WATER
SUBCHAPTER G. WATER SAVING PERFORMANCE STANDARDS
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts new §290.267; amendments to §§290.251 - 290.254, 290.256, and 290.260; and the repeal of §290.255.
These amendments, new section, and the repeal of §290.255 are adopted without changes as published in the October 23, 2009 issue of the Texas Register (34 TexReg 7299) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
In 2009, the 81st Legislature passed House Bill (HB) 2667, relating to performance standards for plumbing fixtures sold in this state. HB 2667 amends Texas Health and Safety Code (THSC), §372.001 and §372.002 to increase efficiency standards, add performance, labeling, and testing requirements, add exemptions, add a five-year phase-in of new standards, and repeal TCEQ labeling and fee requirements for plumbing fixtures sold in this state. HB 2667 adds THSC, §§372.0025, 372.0045, and 372.006 to add exceptions for municipalities or counties, a phase-in of water saving performance standards, and performance standards for nonwater-supplied urinals, respectively. HB 2667 amends Texas Water Code, §5.701(q) to remove the commission's authority to collect fees for testing a product to ensure that the certification is accurate.
In a corresponding rulemaking published in this issue of the Texas Register, the commission adopts an amendment to 30 TAC Chapter 291, Utility Regulations.
SECTION BY SECTION DISCUSSION
§290.251. Purpose, Authority, and Definitions.
The commission adopts the amendment to §290.251 to revise definitions for various plumbing fixtures relating to the subchapter. Terms to be revised are plumbing fixture and toilet. Terms to be added are plumbing fixture fitting, pressurized flushing device, and water closet. The term "ASME" will be deleted, as this acronym is no longer used throughout the subchapter, and the term "ASTM" will be deleted, as this organization is currently known only as ASTM International. As a result of the additions and deletions, some existing definitions will be renumbered accordingly. This amendment is required by THSC, §372.001, as amended by HB 2667.
§290.252. Design Standards.
The commission adopts the amendment to §290.252 to include new performance standards and revise testing requirements for plumbing fixtures. A reference to testing standards established by the American National Standards Institute is removed. All references to testing procedures adopted by the commission for plumbing fixtures are removed. Performance, testing, and labeling requirements for plumbing fixtures prescribed by American Society of Mechanical Engineers Standard A112.19.2-2008 and Canadian Standards Association Standard B45.1-2008 are added. Performance standards for nonwater-supplied urinals are also added. This amendment is required by THSC, §372.002, as amended by HB 2667.
§290.253. Plumbing Fixture List.
The commission adopts the amendment to §290.253 to change the process of providing test results for plumbing fixtures to the commission. All references to testing by the commission and fees were removed by the statute and therefore are removed from this section. This amendment is required by THSC, §372.002, as amended by HB 2667.
§290.254. Removal from List.
The commission adopts the amendment to §290.254 to remove the references to the commission charging fees, which was removed by the statute. The commission replaced a reference to "the department" with "the agency." As a result of the removals, paragraphs are renumbered accordingly. This amendment is required by THSC, §372.002, as amended by HB 2667.
§290.255. Fees.
The commission repeals §290.255, concerning fees charged by the commission. This repeal is required because THSC, §372.002(d) is repealed by HB 2667.
§290.256. Exemptions.
The commission adopts the amendment to §290.256 to add additional exemptions for municipalities and counties that have situations that would require a greater quantity of water, nonwater-supplied urinals, and plumbing fixtures certified by the United States Environmental Protection Agency under the WaterSense program. This amendment is required by THSC, §372.0025, as amended by HB 2667. The commission adopts the amendment to §290.256 to add additional exemptions for heavy-duty commercial urinals, and toilets that are mounted on the wall and discharge to the drainage system on the floor, are located in a correctional facility, are used in a bariatric application, are used by children at a daycare, or consist of a non-tank type commercial bowl connected to the plumbing system through a pressurized device. As a result of these additions, existing subsection (b) is relettered accordingly. This amendment is required by THSC, §372.002, as amended by HB 2667.
§290.260. Labeling.
The commission adopts the amendment to §290.260 to remove the TCEQ's labeling requirements for plumbing fixtures. This repeal is required because THSC, §372.003(a) and (b), concerning labeling requirements, is repealed by HB 2667. As a result of these deletions, the remaining subsections are relettered accordingly.
§290.267. Phase-In of Water Saving Performance Standards.
The commission adopts new §290.267 to add a five-year schedule for phasing in fixtures that comply with the new standards. Procedures for reporting the percentage of models to the commission annually are prescribed. This adopted new section expires September 1, 2013. This new section is required by THSC, §372.0045, as amended by HB 2667.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission evaluated the adopted rulemaking and performed an analysis of whether the adopted rulemaking requires a regulatory impact analysis under Texas Government Code, §2001.0225. The adopted rulemaking may be a "major environmental rule" under Texas Government Code, §2001.0225. Although the specific intent of the rulemaking does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, or the public health and safety of the state or a sector of the state, these rules do result in protecting the environment, or conserving water resources. The purpose of this rulemaking is to require certain standards for plumbing fixtures in order to conserve water. These new standards are being implemented because they are required by state law. The adopted rules also repeal the commission's authority to charge fees for testing products to make sure that the products meet the standards. Because these plumbing fixtures that meet the new standards should not cost any more than they would under existing standards, there is no impact on the economy or jobs. Also, these rules do not exceed a standard of federal law that is not specifically required by state law, exceed an express requirement of state law, exceed a requirement of a federal delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program, or are proposed solely under the general powers of the agency instead of under a specific state law. Therefore, no regulatory impact analysis is required under Texas Government Code, §2001.0225 for this rulemaking.
The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. No comments were received on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rulemaking and performed an analysis of whether the adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rulemaking is to describe plumbing fixtures standards in state law to conserve water and to repeal the agency's authority to test products to ensure that they meet the standards and to charge fees for this testing. The adopted rulemaking would substantially advance this stated purpose by placing the standards in the rule and repealing the testing and fee program in the rule. Promulgation and enforcement of the adopted rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally) nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. There are no other reasonable or practicable alternatives to this rulemaking because it is required by statute.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Coastal Management Program.
The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received regarding the consistency of this rulemaking with the coastal management program.
PUBLIC COMMENT
The commission held a public hearing on November 17, 2009 in Austin, Texas. The comment period closed on November 23, 2009. The commission received one written comment from an individual but it was outside the scope of this rulemaking.
RESPONSE TO COMMENT
One individual commented on the one meter per residence requirements and the quality of their drinking water.
This rulemaking did not address revisions to the one meter per residence requirements nor did it address drinking water quality; therefore, these comments are outside the scope of this rulemaking. The commission made no changes in response to these comments.
30 TAC §§290.251 - 290.254, 290.256, 290.260, 290.267
STATUTORY AUTHORITY
The amendments and new section are adopted under Texas Water Code (TWC), §5.102, concerning General Powers, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and duties under the TWC. The amendments and new section are also adopted under Texas Health and Safety Code (THSC), Chapter 372, concerning Environmental Performance Standards for Plumbing Fixtures, which requires the commission to maintain a list of certified plumbing fixtures that may be sold in the state.
The adopted amendments and new section implement THSC, §§372.001, 372.002, 372.0025, 372.0045, and 372.006; and TWC, §5.701.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001520
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: April 25, 2010
Proposal publication date: October 23, 2009
For further information, please call: (512) 239-0177
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code, §5.102, concerning General Powers, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and duties under the Texas Water Code. The repeal is also adopted under Texas Health and Safety Code, Chapter 372, concerning Environmental Performance Standards for Plumbing Fixtures, which requires the commission to maintain a list of certified plumbing fixtures that may be sold in the state.
The adopted repeal implements Texas Health and Safety Code, §372.002.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001521
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: April 25, 2010
Proposal publication date: October 23, 2009
For further information, please call: (512) 239-0177
SUBCHAPTER H. UTILITY SUBMETERING AND ALLOCATION
The Texas Commission on Environmental Quality (agency or commission) adopts an amendment to §291.127 without changes to the proposed rule as published in the October 23, 2009, issue of the Texas Register (34 TexReg 7305) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
In 2009, the 81st Legislature passed House Bill (HB) 2667, relating to performance standards for plumbing fixtures sold in this state. HB 2667 amends Texas Water Code (TWC), §13.506(b) to remove the specification for installation of toilets that meet the old standards (1.6 gallons) for apartments that are required to retrofit toilets due to submetering rules.
In a corresponding rulemaking published in this issue of the Texas Register, the commission adopts revisions to 30 TAC Chapter 290, Public Drinking Water.
SECTION DISCUSSION
§291.127, Submeters or Point-of-Use Submeters and Plumbing Fixture
The commission adopts an amendment to §291.127 to remove the specification for installation of toilets that meet the old standards (1.6 gallons) for apartments that are required to retrofit toilets due to submetering rules. The amendment is required by TWC, §13.506(b), as amended by HB 2667.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission evaluated the adopted rulemaking and performed an analysis of whether the adopted rulemaking requires a regulatory impact analysis under Texas Government Code, §2001.0225. The adopted rulemaking may be a "major environmental rule" under Texas Government Code, §2001.0225. Although the specific intent of the rulemaking does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, or the public health and safety of the state or a sector of the state, this rule does result in protecting the environment, or conserving water resources. The purpose of this rulemaking is to implement HB 2667 to require owners of rental property or managers of condominiums, not later than the first anniversary they begin to bill for submetered or allocated water service, to remove toilets that exceed a maximum flow of 3.5 gallons per flushing with toilets that meet the standards prescribed in Texas Health and Safety Code (THSC), §372.002. Because plumbing fixtures that meet the new standards should not cost any more than they would under existing standards, there is no impact on the economy or jobs. Also, the rulemaking does not exceed a standard set of federal law that is not specifically required by state law, exceed an express requirement of state law, exceed a requirement of a federal delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program, and is not being adopted solely under the general powers of the agency instead of under a specific state law. Therefore, no regulatory impact analysis is required under Texas Government Code, §2001.0225 for this rulemaking.
The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. No comments were received on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rulemaking and performed an analysis of whether the adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rulemaking is to is to implement HB 2667 to require owners of rental property or managers of condominiums, not later than the first anniversary they begin to bill for submetered or allocated water service, to remove toilets that exceed a maximum flow of 3.5 gallons per flushing with toilets that meet the standards prescribed in THSC, §372.002. The adopted amendment would substantially advance this stated purpose by placing the revised standard in the rule. Promulgation and enforcement of the adopted amendment would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally) nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. There are no other reasonable or practicable alternatives to this rulemaking because it is required by statute.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rulemaking and found that it is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rule is not subject to the Coastal Management Program.
The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received regarding the consistency of this rulemaking with the coastal management program.
PUBLIC COMMENT
The commission held a public hearing on November 17, 2009 in Austin, Texas. The comment period closed on November 23, 2009. The commission received one written comment from an individual but it was outside the scope of this rulemaking.
RESPONSE TO COMMENT
One individual commented on the one meter per residence requirements and the quality of their drinking water.
This rulemaking did not address revisions to the one meter per residence requirements nor did it address drinking water quality; therefore, these comments are outside the scope of this rulemaking. The commission made no changes in response to these comments.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and duties under the TWC. The amendment is also adopted under TWC, §13.506(b), concerning Plumbing Fixtures, which requires owners of rental property or managers of condominiums not later than the first anniversary they begin to bill for submetered or allocated water service, to remove toilets that exceed a maximum flow of 3.5 gallons per flushing with toilets that meet the standards prescribed in Texas Health and Safety Code, §372.002.
The adopted amendment implements TWC, §13.506(b).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001522
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: April 25, 2010
Proposal publication date: October 23, 2009
For further information, please call: (512) 239-0177