30 TAC §§319.301-319.303
The Texas Natural Resource Conservation Commission (commission)
proposes new §§319.301-319.303, concerning Public Notice of Spills
or Accidental Discharges from Wastewater Facilities Owned or Operated by Local
Governments.
EXPLANATION OF PROPOSED RULE
The purpose of the proposed rules is to implement the provisions of House
Bill (HB) 1074, 76th Legislature (1999), which amended Texas Water Code, §26.039.
Texas Water Code, §26.039, as amended by HB 1074, 76th Legislature,
requires the individual operating or in charge of a facility to notify the
commission as soon as possible within 24 hours of the occurrence of a spill
which causes or may cause pollution and to include the location, volume, and
content of the discharge or spill in the notice. If the spill comes from a
wastewater treatment or collection facility owned or operated by a local government
and the spill might adversely affect a source of drinking water, appropriate
local government officials and local media must also be notified.
Texas Water Code, §26.039(f), requires the commission to adopt rules
specifying the conditions under which notification of a spill must be given
to appropriate local government officials and local media, the procedures
for giving the required notice, the content of the notice, and the manner
of giving notice. In developing the rules, the commission must consider the
nature and extent of the discharge or spill, the potential effect of a discharge
or spill, and regional information about the susceptibility of a particular
drinking water source to a specific type of pollution.
This rule will increase public awareness of the potential for contamination
of drinking water. Wastewater treatment and collection facilities owned or
operated by local governments will be required to give notice to local governments
and local media of spills or accidental discharges under conditions which
may adversely affect a public or private source of drinking water. These rules
are proposed to protect human health and safety.
Proposed §319.301 defines important terms specifically for Subchapter
C. The terms "local media," and "appropriate local government officials" are
defined to address those local entities most likely to be involved or needed
in the event of a spill. "Spill" is defined to include both a spill and accidental
discharge for economy in drafting. "Local government" is defined as in §26.001
of the Texas Water Code.
Proposed §319.302 sets forth the conditions under which a facility
operator must notify local officials and local media that a spill has occurred.
In developing these conditions, the commission considered the nature and extent
of a discharge or spill, the potential effect of a discharge or spill, and
regional information about the susceptibility of a particular drinking water
source to a specific type of pollution.
Proposed §319.302 requires the notice to local officials and local
media when a spill occurs from a facility, which leaves the facility or the
confines of the collection system, and one of the following conditions also
exists: (1) the spill enters a pathway that contributes to a public source
of drinking water which has been assessed by the commission as vulnerable
to contamination; (2) the spill enters a pathway that contributes to a private
source of drinking water within one-half mile of a public source of drinking
water which has been assessed by the commission as vulnerable to contamination;
(3) the spill occurs in an active groundwater recharge area and recharge enters
the drinking water aquifer within one-half mile downstream from the spill;
(4) the spill occurs up-gradient and within one- half mile of a karst terrain
or shallow alluvial well that is a source of drinking water; or (5) the spill
occurs within one-half mile up-gradient of a surface water intake for a public
or private source of drinking water.
These conditions limit the required notice to the types of spills significant
enough to threaten public health. If notice was required in all cases of spills,
the media and the public might not be able to differentiate between significant
and insignificant spills, would not know when to take drinking water precautions,
and might disregard notices of significant spills.
Proposed §319.303 sets out the form for the notice to be given to
local officials and local media. The form explains that the notice is being
issued to inform the public that a spill has occurred that may adversely affect
a source of drinking water. The form requires that the location, volume, and
content of the spill be disclosed, as required by HB 1074.
The effect of the rule will be to provide timely and relevant information
to the affected public regarding potential drinking water contamination.
FISCAL NOTE
Jeff Grymkoski, Director of Strategic Planning and Appropriations, has
determined that for the first five-year period the sections as proposed are
in effect there will be no significant fiscal implications to units of state
and local government to administer and enforce the proposed rules. The proposed
rule would implement the provisions of HB 1074, 76th Legislative Session,
Regular Session (an act relating to public notification of certain accidental
discharges or spills into water).
HB 1074 requires local governments owning or operating a wastewater treatment
or collection facility to notify appropriate local government officials and
the media within 24 hours, when an accidental discharge or spill occurs that
may adversely affect a public or private source of drinking water.
No significant fiscal implication to local governments is anticipated to
comply with this rule because local governments are already required to report
to the commission spills that may cause pollution. The anticipated frequency
of these types of spills should not place an undue burden on a local government
that is required to notify appropriate local officials and the media.
The bill also requires the commission to specify the conditions which would
require notification of appropriate local government officials and the media,
prescribe procedures for giving the required notice, including information
on the location, volume, and content of the accidental discharge or spill.
Proposed §319.302 requires an operator to notify appropriate local
government officials and the media when one of the following conditions exists:
(1) the spill enters a pathway that contributes to a public source of drinking
water which has been assessed by the commission as vulnerable to contamination;
(2) the spill enters a pathway that contributes to a private source of drinking
water within one-half mile of a public source of drinking water which has
been assessed by the commission as vulnerable to contamination; (3) the spill
occurs in an active groundwater recharge area and recharge enters the drinking
water aquifer within one-half mile downstream from the spill; (4) the spill
occurs up-gradient and within one-half mile of a karst terrain or shallow
alluvial well that is a source of drinking water; or (5) the spill occurs
within one-half mile up-gradient of a surface water intake for a public or
private source of drinking water. The commission estimates that 10-20 accidental
spills or discharges will meet these conditions annually.
Proposed §319.303 sets out the form for the notice to be given to
local officials and local media. The form explains that the notice is being
issued to inform the public that a spill has occurred that may adversely affect
a source of drinking water. The form requires that the location, volume, and
content of the spill be disclosed.
Local governments who own or operate wastewater treatment or collection
facilities will be required to notify appropriate local government officials
and local media when certain spills occur from the facility. The notice must
be given as soon as possible, but not more than 24 hours after the spill occurs.
The notice must be given in a format specified by the commission. It is anticipated
that this reporting requirement will not impose a significant cost on any
local government.
PUBLIC BENEFIT
Mr. Grymkoski also has determined that for the first five-year period the
sections as proposed are in effect the public benefit anticipated as the result
of enforcement of and compliance with the rule will be greater protection
of public health through public awareness of the potential of contaminated
sources of drinking water from spills from certain wastewater treatment and
collection facilities.
The effect of the rule will be to provide timely and relevant information
to the affected public regarding potential drinking water contamination.
SMALL BUSINESS ANALYSIS
The proposed rules would not impose any cost on small business. The rules
apply to local governments owning or operating wastewater treatment and collection
facilities.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act,
and it does not meet any of the four applicability requirements listed in
§2001.0225(a). The rule does not adversely affect in a material way the
environment or the public health and safety of the state or a sector of the
state. The rule is designed to protect human health by reducing potential
exposure to accidental discharges or spills from wastewater treatment and
collection facilities.
The economy, a sector of the economy, productivity, competition, or jobs
will not be adversely affected in a material way because the additional costs
caused by the rule are minimal. There are no costs to businesses or the private
sector. The rules will potentially add costs for notice to local governments
and local media. The additional costs added by this rule are not substantial,
however, because the local governments are already required by §26.039(b)
to notify the commission of all spills which cause, or may cause, pollution.
The rule does not adversely affect in a material way the environment, or
the public health and safety of the state or a sector of the state, because
the rule is designed to protect human health by reducing potential exposure
to accidental discharges or spills from wastewater treatment and collection
facilities owned or operated by a local government.
This proposal does not exceed a standard set by federal law and is specifically
required by state law. There is no standard set by federal law for notification
of local governments and local media of spills from wastewater treatment or
collection facilities owned or operated by local governments. This rule is
specifically required by Texas Water Code, §26.039(f), to specify the
conditions under which a spill must be reported to appropriate local government
officials and local media.
This proposal does not exceed the requirements of a delegation agreement
or contract between the state and federal government. There is no agreement
or contract between the commission and the federal government concerning notification
of local governments and local media of spills from wastewater treatment or
collection facilities owned or operated by local governments.
The rules are not proposed solely under the general powers of the commission;
instead, they are proposed under a specific state law. The specific state
law is Texas Water Code, §26.039(f), which requires the commission by
rule to specify the conditions under which a spill must be reported to appropriate
local government officials and local media.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules
pursuant to Texas Government Code, §2007.043. The following is a summary
of that Assessment. The specific purpose of the rules is to implement the
requirements of HB 1074, 76th Legislature, which amends Texas Water Code,
§26.039, to require notice to local governmental officials and local
media of spills or accidental discharges from wastewater treatment or collection
facilities owned or operated by local governments. The rules will substantially
advance this specific purpose by identifying which entities must report, the
conditions under which these reports must be made, and the contents of the
notice to local governments and local media. Promulgation and enforcement
of these rules will not burden private real property. The rule only affects
wastewater treatment or collection facilities owned or operated by local governments.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that this rulemaking action is subject to
the Texas Coastal Management Program (CMP) in accordance with the Coastal
Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201
et seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506),
and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning
consistency with the Texas Coastal Management Program. As required by 31 TAC
§505.11(b)(4) and 30 TAC §281.45(a)(3), relating to actions and
rules subject to the CMP, agency rules regarding operation of wastewater collection
and treatment facilities must be consistent with the goals and policies of
the CMP to protect the coastal area.
The commission has prepared a consistency determination for the proposed
rules pursuant to 31 TAC §505.22 and has found that the proposed rulemaking
is consistent with the applicable CMP goals and policies. The following is
a summary of that determination. The CMP goal applicable to the proposed rules
is the goal to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas. CMP policies
applicable to the proposed rules include the administrative policies and the
policies for activities related to the operation of wastewater collection
and treatment facilities. Promulgation and enforcement of these rules is consistent
with the applicable CMP goals and policies because this rule will encourage
prompt notification of local governments and local media of spills, from wastewater
treatment and collection facilities owned or operated by local governments,
that could adversely affect drinking water sources. This will result in an
overall environmental benefit across the state, including coastal areas. In
addition, the proposed rules do not violate any applicable provisions of the
CMP's stated goals and policies. The commission seeks public comment on the
consistency of the proposed rules.
Therefore, in compliance with 31 TAC §505.22(e), the commission affirms
that this rule is consistent with CMP goals and policies, and the rule will
have a negligible impact upon the coastal area.
PUBLIC HEARING
A public hearing on this proposal will be held September 2, 1999, at 2:00
p.m. in Room E201S of Texas Natural Resource Conservation Commission Building
E, located at 12100 Park 35 Circle, Austin, Texas. The hearing is structured
for the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not occur during the hearing; however, an agency staff member
will be available to discuss the proposal 30 minutes prior to the hearing
and will answer questions before and after the hearing.
SUBMITTAL OF COMMENTS
Written comments regarding this proposal may be mailed to Casey Vise, MC
205, Office of Environmental Policy, Analysis, and Assessment, Texas Natural
Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Log Number
99031-319-WT. Comments must be received by 5:00 p.m., September 15, 1999.
For further information, please contact Jim Dodds, of the Policy and Regulations
Division, at (512) 239-0970; or Pat Hooper, of the Office of Compliance and
Enforcement, at (512) 239-0436.
STATUTORY AUTHORITY
These rules are proposed under the authority of the Texas Water Code, §5.103
and §5.105, which provide the commission with the authority to adopt
any rules necessary to carry out the powers and duties under the provisions
of the Texas Water Code and other laws of this state; and §26.039(f),
which requires the commission by rule to specify the conditions under which
a spill from a wastewater treatment or collection facility owned or operated
by a local government must be reported to appropriate local government officials
and local media.
The proposed new sections implement Texas Water Code, §§5.103,
5.105, and 26.039.
§319.301. Definitions.
In this subchapter:
(1)
Alluvial well - A well completed in sedimentary deposits
resulting from modern rivers.
(2)
Appropriate local government officials - The county
judge of a county and the mayor and city manager of a city and any director
of a municipal utility district whose drinking water supply intake is within
1/2 mile of a spill.
(3)
Drinking water - All water:
(A)
distributed by any agency or individual, public or private,
for the purpose of human consumption;
(B)
which may be used in the preparation of foods or beverages;
(C)
which may be used for the cleaning of any utensil or article
used in the course of preparation or consumption of food or beverages for
human beings;
(D)
supplied for human consumption; or
(E)
used by any institution catering to the public.
(4)
Facility - A wastewater treatment plant, collection
facility, pumping station, or sewer pipeline owned or operated by a local
government.
(5)
Facility operator - The individual who operates,
is in charge of, or is responsible for the operation of a facility.
(6)
Groundwater recharge area - An area where there is
direct and rapid communication of flow from the surface downward to the drinking-water
aquifer.
(7)
Karst - A type of topography that is formed over
limestone, dolomite, or gypsum by dissolving or solution, and that is characterized
by closed depressions or sinkholes, caves, and underground drainage.
(8)
Local government - An incorporated city, a county,
a river authority, or a water district or authority acting under Article III,
§52 or Article XVI, §59 of the Texas Constitution.
(9)
Local media - The daily newspapers and the radio
and television media serving the counties and cities served by a facility
or the aquifer area in which a spill or accidental discharge occurs.
(10)
Municipal utility district - A district operating
under Texas Water Code, Chapter 54.
(11)
Private source of drinking water - A drinking water
supply that is not a public source of drinking water.
(12)
Public source of drinking water - A public water
system which provides the public piped water for human consumption, which
includes all uses described under the definition of drinking water. Such a
system must have a potential for at least 15 service connections or serve
at least 25 individuals at least 60 days out of the year.
(13)
Spill - An accidental discharge or spill from a
facility.
§319.302. Notification Requirements.
(a)
In addition to the noncompliance notification to the commission
required by §305.125(9) of this title (relating to Standard Permit Conditions),
a facility operator must notify appropriate local government officials and
the local media when a spill occurs from a facility, which leaves the facility
or the confines of the collection system, and one of the following conditions
also exists:
(1)
The spill enters a pathway that contributes to a public
source of drinking water which has been assessed by the commission as vulnerable
to contamination.
(2)
The spill enters a pathway that contributes to a
private source of drinking water within one-half mile of a public source of
drinking water which has been assessed by the commission as vulnerable to
contamination.
(3)
The spill occurs in an active groundwater recharge
area and recharge enters the drinking water aquifer within one-half mile downstream
from the spill.
(4)
The spill occurs up-gradient and within one-half
mile of a karst terrain or shallow alluvial well that is a source of drinking
water.
(5)
The spill occurs within one-half mile up-gradient
of a public or private source of drinking water surface water intake.
(b)
The facility operator must issue the notice contained
in §319.303 of this title (relating to Form of the Notice to Local Officials
and Local Media) as quickly as possible but not later than 24 hours after
the spill occurs. The notice must be given by facsimile, e-mail, or by phone
with follow-up written notice.
(c)
Immediately upon issuance of notice to appropriate local
government officials and local media, the facility operator must report to
the commission regional office in whose region the spill occurred.
§319.303. Form of the Notice to Local Officials and Local Media.
The notice must be in the following form:
Figure: 30 TAC §319.303
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
July 30, 1999.
TRD-9904609
Margaret Hoffman
Director, Environment Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 10, 1999
For further information, please call: (512) 239-1932