Part I.
Texas Natural Resource Conservation Commission
Chapter 113.
Control of Air Pollution from Toxic Materials
The commission adopts the repeal of §§113.31-113.37, 113.41-113.48,
113.51-113.54, and 113.61-113.68, concerning Lead from Stationary Sources
and a revision to the State Implementation Plan (SIP) concerning these repeals.
The commission also adopts a change to the title of Subchapter B from "Lead
from Stationary Sources" to "National Emission Standards for Hazardous Air
Pollutants (FCAA §112, 40 CFR 61);" a new division concerning Radionuclide
National Emission Standards for Hazardous Air Pollutants (NESHAPs); and a
new §113.55, concerning Radon Emissions from Phosphogypsum Stacks (40
CFR 61, Subpart R). All sections are adopted without changes to the proposed
text as published in the August 14, 1998 issue of the
Texas Register
(23 TexReg 8360).
EXPLANATION OF ADOPTED RULES This rulemaking is part of the regulatory
reform effort. Regulatory reform projects identify rules and regulations that
need clarification for the benefit of the public and the regulated community;
are outdated; impose regulatory requirements in excess of their contribution
to the commission's mission; or are duplicative, unnecessary, or inconsistent.
This action is also a request for delegation of authority to implement one
of the Title 40, Code of Federal Regulations, Part 61 (40 CFR 61) NESHAPs.
The lead rules for El Paso County were adopted on February 17, 1984 to
control emissions from a primary lead smelter operated by ASARCO, Inc., and
for Dallas County on May 18, 1984 to control lead from two secondary lead
smelters (battery recycling facilities), all of which caused these counties
to exceed the National Ambient Air Quality Standard for lead. Subsequently,
the lead processes in all three facilities were shut down and the equipment
dismantled. A remaining lead emitting point source (a copper process) in
the El Paso facility is under very rigid permit control (New Source Review
(NSR) Permit Number 20345) for lead emissions. Fugitive lead emissions from
the ASARCO plant are effectively controlled by existing particulate rules
in Chapter 111 (concerning Control of Air Pollution from Visible Emissions
and Particulate Matter) which apply throughout the City of El Paso. The fugitive
lead emissions from outdoor storage piles are controlled by NSR Permit Number
4151, as well as controls found in 30 TAC §111.143, concerning Materials
Handling. The fugitive lead emissions from the grounds and roads of the plant
are controlled by NSR Permit Number 20345 as well as controls found in 30
TAC §111.147(a)(1), concerning Roads, Streets, and Alleys. One of the
sites in Dallas (known as the Dixie Metals Company or the Exide Corporation)
has been remediated under the federal Superfund program, and the other site
in Dallas (Murph Metals, Incorporated, a subsidiary of RSR Corporation) is
proposed for a state and federally supported remediation. There are no other
operational lead smelters located, or anticipated to be located, within El
Paso or Dallas County; therefore, the rules are being repealed under the commission's
regulatory reform initiative.
Repeal of the existing Subchapter B, concerning Lead from Stationary Sources,
is adopted concurrently with a new Subchapter B, concerning National Emission
Standards for Hazardous Air Pollutants (FCAA §112, 40 CFR 61). The new
Subchapter B will complement the existing Subchapter C, concerning National
Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA
§112, 40 CFR 63), which are requirements of the 1990 Federal Clean Air
Act Amendments. Unlike other Part 61 NESHAPs, Texas was not automatically
delegated authority to implement any Radionuclide NESHAPs. Part 61, Subpart
R, Radon Emissions from Phosphogypsum Stacks, is actually one of seven standards
that apply to various types of federal or industrial facilities which have
potential emissions of radioactive substances (radionuclides). Section 113.55
is added in response to a request from the United States Environmental Protection
Agency (EPA) that Texas take delegation of 40 CFR, Part 61, Subpart R. Title
40 CFR Part 61, Subpart R, requires existing facilities to notify the commission
in advance of any Radon test so it may be observed. The test requires a statistical
sampling approach which is unique from other requirements associated with
air regulations. Ninety days after the test, affected facilities must provide
a report to the commission. Annual reports must be submitted to both the EPA
and the appropriate commission regional office.
FINAL 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. It does not meet the definition of a major environmental
rule because outdated rules are being removed and because a new NESHAP requirement
will not adversely affect the economy in a material way. The identified facilities
affected by the NESHAP, already established by federal law, are currently
meeting the federal standard being enforced by EPA. This rulemaking action
will not, therefore, change the current level of protection of the environment.
TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact
Assessment for this adoption under Texas Government Code, §2007.043.
The following is a summary of that assessment. The specific purpose of this
rulemaking is to repeal lead rules because there is no longer a need due to
the shut down and dismantling of facilities formerly subject to the rules.
The adoption by reference of 40 CFR 61, Subpart R will give Texas the authority
to enforce the federal standard. Promulgation and enforcement of this rulemaking
will not affect private real property because the rules being repealed applied
to decommissioned facilities, and the rule being adopted already exists at
the federal level and is currently enforced by EPA.
COASTAL MANAGEMENT PLAN The commission has determined that the portion
of this rulemaking concerning repeal of the lead rules is not subject to the
Texas Coastal Management Plan (CMP) because these rules affect only sources
outside of the Coastal Management Zone. The commission has determined that
the portion of this rulemaking concerning 40 CFR 61, Subpart R NESHAP does
relate to an action or actions subject to the Texas Coastal Management Program
(CMP) in accordance with the Coastal Coordination Act of 1991, as amended
(Texas Natural Resource Code, §§33.201 et. seq.), 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)(2)
and 30 TAC §281.45(a)(3), relating to actions and rules subject to the
CMP, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission has reviewed
this action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council, and has determined that
the action is consistent with the applicable CMP goals and policies. The CMP
policy applicable to this rulemaking action is the policy that commission
rules comply with regulations at 40 CFR, to protect and enhance air quality
in the coastal area (31 TAC §501.14(q)). This adoption does not change
existing requirements because the same requirements are codified in 40 CFR
61, Subpart R. Therefore the adoption is consistent with 40 CFR. No persons
commented on the consistency of the proposed rules with the CMP during the
public comment period.
HEARING AND COMMENTERS Public hearings on the proposal were held in Austin
on September 8, 1998, and in El Paso on September 9, 1998. The comment period
for the 40 CFR Subpart R NESHAP in §113.55 closed September 14, 1998.
There were no comments received concerning the adoption of the new 113.55.In
order to ensure compliance with public hearing requirements for SIP revisions,
in accordance with 40 CFR 51, the commission scheduled another hearing in
Austin, held on October 26, 1998, and extended the comment period for the
lead rules and corresponding SIP revision until October 26, 1998. One commenter,
Bracewell & Patterson, L.L.P., submitted written comments on behalf of
ASARCO.
ANALYSIS OF TESTIMONY General Comments ASARCO supported the proposed repeal
of the lead rules insofar as they applied to the El Paso area. ASARCO also
requested that the commission amend the administrative provisions of the SIP
which applied to the El Paso area.
Administrative SIP Revisions ASARCO recommended that the commission submit
a request to EPA for a conforming repeal of all the non-rule components of
the Texas lead SIP, specifically 40 CFR §§52.2270(c)(41), (56),
and (65). ASARCO also stated that to ensure consistency in the commission
regulations, the commission should administratively void the dust control
programs submitted under §113.33(a)(3)(A), any alternate schedules for
equipment measurements approved under §113.35(7)(B), any designs for
secondary hoods and control plans approved under §113.36(1) and (3),
any alternate means of control approved under §113.51, and any control
plans submitted under §113.62 and §113.63.
The commission agrees that many of the non-rule components of the Texas
lead SIP need to be repealed; however, not all of the suggested repeals were
proposed through this rulemaking project.
The SIP submissions cited in 40 CFR 52.2270(c)(41) covered a broad spectrum
of lead issues; such as the designation of various counties throughout the
state as attainment, nonattainment, or unclassified; and typical lead point
sources which may cause the lead standard to be exceeded in areas of public
exposure. It also identified, and addressed stationary sources of inorganic
lead in El Paso, Collin, Denton, Dallas, and Harris Counties, as well as stationary
and mobile sources of organic lead in major metropolitan areas of the state.
The SIP also addresses the state's air quality surveillance network for lead.
The SIP submission cited in 40 CFR 52.2270(c)(65) addresses the control strategy
necessary for the El Paso area to achieve attainment. Because this rulemaking
only deals with the rescission of lead rules in 30 TAC Chapter 113 and not
with nonattainment designation or the attainment demonstration, the commission
cannot request EPA to repeal these sections at this time. The commission does
plan to initiate a redesignation SIP revision to have both El Paso and Dallas
declared attainment areas for the lead standard.
The SIP submission cited in 40 CFR 52.2270(c)(56) covers the initial control
strategy for El Paso as defined in the lead rule sections of 30 TAC Chapter
113. EPA took no action on several of the sections and on the attainment date
for El Paso. Because this rulemaking rescinds all the lead rule sections in
30 TAC Chapter 113 regarding El Paso, including those sections on which EPA
took no action, the commission will request that the rules referenced in 40
CFR 52.2270(c)(56) be administratively deleted from the SIP. In addition,
because the attainment date on which no action was taken was later resubmitted
and approved in 40 CFR 52.2270(c)(65), the commission will also request that
the reference to the attainment date be administratively deleted from 40 CFR
52.2270(c)(56).
Subchapter B. Lead from Stationary Sources
1.
Nonferrous Smelters in El Paso County
30 TAC §§113.31-113.37
STATUTORY AUTHORITY The repeals are adopted under the Texas
Health and Safety Code, Texas Clean Air Act (TCAA), §382.012, which provides
for the commission to prepare and develop a general, comprehensive plan for
the proper control of the state's air, and §382.017, which provides the
commission with the authority to adopt rules consistent with the policy and
purpose of the TCAA, because the primary purposes of this rulemaking are to
repeal a subchapter which contains an air emission standard no longer applicable
and to adopt by reference a federal standard.
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 January
15, 1999.
TRD-9900267
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 239-1970
30 TAC §§113.41-113.48
STATUTORY AUTHORITY The repeals are adopted under the Texas
Health and Safety Code, Texas Clean Air Act (TCAA), §382.012, which provides
for the commission to prepare and develop a general, comprehensive plan for
the proper control of the state's air, and §382.017, which provides the
commission with the authority to adopt rules consistent with the policy and
purpose of the TCAA because the primary purposes of this rulemaking are to
repeal a subchapter which contains an air emission standard applicable to
nonexisting sources and to adopt by reference a federal standard.
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 January
15, 1999.
TRD-9900268
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 239-1970
30 TAC §§113.51-113.54
STATUTORY AUTHORITY The repeals are adopted under the Texas
Health and Safety Code, Texas Clean Air Act (TCAA), §382.012, which provides
for the commission to prepare and develop a general, comprehensive plan for
the proper control of the state's air, and §382.017, which provides the
commission with the authority to adopt rules consistent with the policy and
purpose of the TCAA because the primary purposes of this rulemaking are to
repeal a subchapter which contains an air emission standard applicable to
nonexisting sources and to adopt by reference a federal standard.
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 January
15, 1999.
TRD-9900269
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 239-1970
1.
Radionuclide NESHAPs
30 TAC §113.55
STATUTORY AUTHORITY The new section is adopted under the Texas
Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, which provides
the commission with the authority to adopt rules consistent with the policy
and purposes of the TCAA because the primary purposes of this rulemaking are
to repeal a subchapter which contains an air emission standard applicable
to nonexisting sources and adopt by reference a federal standard. The new
section is also adopted under the TCAA, §382.011, which provides the
commission with the authority to control the quality of the state's air which
the new rule will accomplish by regulating emissions from phosphogypsum stacks.
Under TCAA, §382.012, which provides for the commission to prepare and
develop a general, comprehensive plan for the proper control of the state's
air, the new rule is one of many national standards developed for the overall
control of hazardous air pollutants in the United States. The new rule is
also adopted under TCAA, §382.016, which authorizes the commission to
require monitoring requirements and examination of records and therefore is
consistent with the referenced requirements. The authority for delegation
of 40 CFR Part 61 for both the implementation and enforcement of NESHAPs is
contained in §112(l) of the 1990 Federal Clean Air Act Amendments and
40 CFR 63, Subpart E, Approval of State Programs and Delegation of Federal
Authorities.
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 January
15, 1999.
TRD-9900270
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 239-1970
4.
Compliance and Control Plan Requirements
30 TAC §§113.61-113.68
STATUTORY AUTHORITY The repeals are adopted under the Texas
Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, which provides
the commission with the authority to adopt rules consistent with the policy
and purpose of the TCAA because the primary purposes of this rulemaking are
to repeal a subchapter which contains an air emission standard applicable
to nonexisting sources and to adopt by reference a federal standard.
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 January
15, 1999.
TRD-9900271
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 239-1970
The Texas Natural Resource Conservation Commission (commission) adopts
the repeal of 30 Texas Administrative Code (TAC) §§238.1, 238.2,
238.31, 238.32, 238.41-238.51, 238.60, 238.61, 238.70, and 238.80-238.83,
concerning Water Well Drillers Rules. The repeals are adopted without changes
to the proposed text as published in the October 30, 1998, issue of the
This action also constitutes the commission's adoption of the review of
the rules contained in 30 TAC Chapter 238. This review was in accordance with
the General Appropriations Act, Article IX, §167, 75th Legislature, 1997.
The adopted rule review can be found in the Review of Agency Rules section
in this edition of the
Texas Register.
EXPLANATION OF ADOPTED RULES
This repeal will remove current Chapter 238, as part of the commission's
implementation of Senate Bill (SB) 1955, 75th Legislature, 1997. Legislative
action amended Chapters 32 and 33, Texas Water Code (TWC), requiring the transfer
of the water well drillers programs previously administered by the commission
to the Texas Department of Licensing and Regulation (TDLR). TDLR is authorized
to adopt rules under Chapters 32 and 33, and the commission adopts the repeal
of this chapter in response to the TDLR's adoption of 16 TAC Chapter 76, regarding
Water Well Drillers and Water Well Pump Installers.
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the repeal in light of the regulatory impact
analysis requirements of Texas Government Code, §2001.0225 and has determined
that the rulemaking is not subject to §2001.0225, which applies only
to certain major environmental rules that have at least one of four results.
"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. The intent of this
rulemaking is to repeal the licensing program for water well drillers and
pump installer requirements under Chapter 238. These responsibilities have
been transferred to TDLR as a result of legislative action. This repeal will
result in only minimal changes to the regulations as they currently exist.
This rule does not meet the definition of a "major environmental rule" and
does not meet any of the four results that would trigger applicability of
§2001.0225.
First, the proposal does not exceed a standard set by federal law. There
are no specific federal laws that require or provide for the licensing of
water well drillers or for the establishment of water well construction standards
for wells which are not used for public drinking water supply. Therefore,
the proposal does not exceed a standard set by federal law. Moreover, even
if the rule did exceed a standard set by federal law, this proposal is specifically
required by state law, which required the commission, and now requires TDLR
to license drillers and establish standards for the drilling of water wells
(Chapter 32 of the TWC) and is exempt from §2001.0025's applicability.
Second, this proposal does not exceed an express requirement of state law.
The proposal is designed to carry out the commission's statutory responsibility
to control the quality of water in the state, including groundwater, pursuant
to §§26.011, and 26.046, and 28.011 of the TWC. The proposal is
intended to comply with the stated requirements of state law and not exceed
them in any way.
Third, this proposal does not 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. This proposal is not
covered by any delegation agreement or contract between the state and an agency
or representative of the federal government to implement a state and federal
program.
Finally, this proposal does not adopt a rule solely under the general powers
of the agency instead of under a specific state law. While this proposal repeals
a rule under general powers of the agency, it was also adopted and now proposed
for repeal under specific state laws regarding the licensing and standards
for water well drillers under Chapter 32 and §28.011 of the TWC.
TAKINGS IMPACT ASSESSMENT
The commission prepared a Takings Impact Assessment for these rules pursuant
to Texas Government Code §2007.043. The following is a summary of that
assessment. Promulgation of the repeal of Chapter 238 will not burden private
real property which is the subject of the rules. The specific purpose of the
rule is to repeal Chapter 238 of the commission's rules to implement the transfer
of the licensing requirements for water well drillers and pump installers
program to the TDLR. The commission's repeal of Chapter 238 is in response
to TDLR's adoption of 16 TAC Chapter 76. The TDLR's rules will take the place
of Chapters 238 and 340 and will provide for well standards and well driller
and pump installer licensing pursuant to Chapters 32 and 33 of the Texas Water
Code as amended by SB 1955, 75th Legislature, 1997. Chapter 238 defines well
completion, plugging, and capping standards. Because these rules will no longer
be effective, the repeal of these rules does not impose a burden on private
real property, and does not cause any takings to occur.
COASTAL MANAGEMENT PROGRAM
The executive director has reviewed the repeal and found that the rulemaking
is neither identified in the Coastal Coordination Act Implementation Rules,
31 TAC §505.11, relating to Actions and Rules Subject to the Coastal
Management Program (CMP), nor will it affect any action or authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore,
the proposed rule is not subject to the CMP.
HEARING AND COMMENTERS
A public hearing on the proposal was held on November 23, 1998. No one
presented testimony at the public hearing and no comments were submitted in
writing on this proposal. The comment period ended November 30, 1998.
Subchapter A. General Provisions
30 TAC §238.1, §238.2
STATUTORY AUTHORITY
The repeals are adopted under TWC, §5.103 which provides the commission
with the authority to promulgate rules necessary for the exercise of its jurisdiction
and powers provided by the TWC and other laws of Texas, and §5.105 which
provides the commission to establish and approve all general policy of the
commission by rule. Section 26.011 of the TWC provides that the commission
will administer the provisions of Chapter 26 of the TWC and establish the
level of quality to be maintained in and control the quality of the water
in the state. Section 28.011 of the TWC allows the commission to make and
enforce rules and regulations for protecting and preserving the quality of
underground water. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers under
Chapter 32 TWC. §238.1. Purpose of Rules.
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 January
15, 1999.
TRD-9900292
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §238.31, §238.32
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900293
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §§238.41-238.51
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900294
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §238.60, §238.61
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900295
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §238.70
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900296
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §§238.80-238.83
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900297
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
The Texas Natural Resource Conservation Commission (commission) adopts
the repeal of 30 Texas Administrative Code (TAC) §§340.1-340.3,
340.31, 340.33, 340.35, 340.37, 340.39, 340.41, 340.43, 340.45, 340.49, 340.51,
340.53, 340.71, 340.73, 340.75, 340.77, 340.81-340.86, 340.88-340.93, 340.101,
340.103, 340.105, 340.107, 340.109, 340.111, 340.131, 340.133, 340.135, and
340.137, concerning Licensing Requirements and Complaint Procedures for Water
Well Drillers and Pump Installers. These repeals are adopted without changes
to the proposed text as published in the October 30, 1998, issue of the
This action also constitutes the commission's adoption of the review of
the rules contained in 30 TAC Chapter 340. This review was in accordance with
the General Appropriations Act, Article IX, §167, 75th Legislature, 1997.
The adopted rule review can be found in the Review of Agency Rules section
in this edition of the
Texas Register.
EXPLANATION OF ADOPTED RULES
This repeal removes current Chapter 340 as part of the commission's implementation
of Senate Bill (SB) 1955, 75th Legislature, 1997. Legislative action amended
Chapters 32 and 33, Texas Water Code (TWC), requiring the transfer of the
water well drillers and pump installers certification and licensing programs
previously administered by the commission to the Texas Department of Licensing
and Regulation (TDLR). TDLR is authorized to adopt rules under TWC, Chapters
32 and 33, and the commission repeals this chapter in response to the TDLR's
adoption of 16 TAC Chapter 76, related to Water Well Drillers and Water Well
Pump Installers.
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the repeal in light of the regulatory impact
analysis requirements of Texas Government Code, §2001.0225 and has determined
that the rulemaking is not subject to §2001.0225, which applies only
to certain major environmental rules that have at least one of four results.
"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. The intent of this
rulemaking is to repeal the licensing program for water well drillers and
pump installer requirements under Chapter 340. These responsibilities have
been transferred to TDLR as a result of legislative action. This repeal will
result in only minimal changes to the regulations as they currently exist.
This rule does not meet the definition of a "major environmental rule" and
does not meet any of the four results that would trigger applicability of
§2001.0225.
First, the proposal does not exceed a standard set by federal law. There
are no specific federal laws that require or provide for the licensing of
water well drillers or for the establishment of water well construction standards
for wells which are not used for public drinking water supply. Therefore,
the proposal does not exceed a standard set by federal law. Moreover, even
if the rule did exceed a standard set by federal law, this proposal is specifically
required by state law which required the commission and now requires TDLR
to license drillers and pump installers (Chapter 32 of the TWC) and is exempt
from §2001.0025's applicability.
Second, this adoption does not exceed an express requirement of state law.
The adoption is designed to carry out the commission's statutory responsibility
to control the quality of water in the state, including groundwater, pursuant
to §§26.011, and 26.046, and 28.011 of the TWC. The adoption is
intended to comply with the stated requirements of state law and not exceed
them in any way.
Third, this adoption does not 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. This adoption is not
covered by any delegation agreement or contract between the state and an agency
or representative of the federal government to implement a state and federal
program.
Finally, this proposal does not adopt a rule solely under the general powers
of the agency instead of under a specific state law. While this adoption repeals
a rule under general powers of the agency, it was also adopted and now proposed
for repeal under specific state laws regarding the licensing and standards
for water well drillers and pump installers under Chapters 32 and 33 and §28.011
of the TWC.
TAKINGS IMPACT ASSESSMENT
The commission prepared a Takings Impact Assessment for these rules pursuant
to Texas Government Code, §2007.043. The following is a summary of that
assessment. Promulgation of the repeal of Chapter 340 will not burden private
real property which is the subject of the rules. The specific purpose of the
rule is to repeal Chapter 340 of the commission's rules to implement the transfer
of the licensing requirements for water well drillers and pump installers
program to the TDLR. The commission proposes the repeal of Chapter 340 in
response to a TDLR proposal to adopt 16 TAC Chapter 76. The TDLR's proposed
rules will take the place of Chapters 238 and 340 to provide for well standards
and well driller and pump installer licensing pursuant to Chapters 32 and
33 of the Texas Water Code as amended by SB 1955, 75th Legislature, 1997.
Chapter 340 defines licensing requirements and duties of licensed water well
drillers and pump installers. Because these rules will no longer be effective,
the repeal of these rules does not impose a burden on private real property,
and does not cause any takings to occur.
COASTAL MANAGEMENT PROGRAM
The executive director has reviewed this repeal and found that the rulemaking
is neither identified in the Coastal Coordination Act Implementation Rules,
31 TAC §505.11, relating to Actions and Rules Subject to the Coastal
Management Program (CMP), nor will it affect any action or authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore,
the proposed rule is not subject to the CMP.
PUBLIC HEARING AND COMMENTS
A public hearing on the proposal was held on November 23, 1998. No one
presented testimony at the public hearing and no comments were submitted in
writing on this proposal. The comment period ended November 30, 1998.
Subchapter A. Introductory Provisions
30 TAC §§340.1-340.3
STATUTORY AUTHORITY
The repeals are adopted under TWC, §5.103 which provides the commission
with the authority to promulgate rules necessary for the exercise of its jurisdiction
and powers provided by the TWC and other laws of Texas, and §5.105 which
provides the commission to establish and approve all general policy of the
commission by rule. Section 26.011 of the TWC provides that the commission
will administer the provisions of Chapter 26 of the TWC and establish the
level of quality to be maintained in and control the quality of the water
in the state. Section 28.011 of the TWC allows the commission to make and
enforce rules and regulations for protecting and preserving the quality of
underground water. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC.
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 January
15, 1999.
TRD-9900298
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §§340.31, 340.33, 340.35, 340.37, 340.39, 340.41, 340.43, 340.45, 340.49, 340.51, 340.53
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900299
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §§340.71, 340.73, 340.75, 340.77
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900300
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §§340.81-340.86
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900301
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
30 TAC §§340.88-340.93
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §§5.103,
5.105, and 26.011, which provide the commission with the authority to promulgate
rules necessary for the exercise of its jurisdiction and powers provided by
the TWC and other laws. The rule was also adopted and now repealed under specific
state laws regarding the licensing and standards for water well drillers and
pump installers under Chapters 32 and 33 of the TWC. Section 28.011 of the
TWC allows the commission to make and enforce rules and regulations for protecting
and preserving the quality of underground water.
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 January
15, 1999.
TRD-9900302
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 4, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966
2.
Lead Smelters in Dallas County
3.
Alternate Controls
Subchapter B. National Emission Standards for Hazardous Air Pollutants (FCAA §112, 40 CFR 61)
Subchapter B. Lead from Stationary Sources
Chapter 238.
Water Well Drillers Rules
Subchapter B. State Well Reports and Reporting Undesirable Water
Subchapter C. Well Drilling, Completions, Capping, and Plugging
Subchapter D. Water Distribution and Delivery Systems and Chemical Injection, Chemigation, and Foreign Substance System
Subchapter E. Pump Installation and Temporary Well Protection
Subchapter F. Miscellaneous Provisions
Chapter 340.
Licensing Requirements and Complaint Procedures for Water Well Drillers and Pump Installers
Subchapter B. Licensing Procedures
Subchapter C. Duties of Licensed Water Well Drillers and Pump Installers
Subchapter D. Driller Trainee Registration
Subchapter E. Pump Installer Apprentices
Subchapter F. Standards of Conduct