Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 7.
MEMORANDA OF UNDERSTANDING
30 TAC §7.119
The Texas Natural Resource Conservation Commission (TNRCC
or commission) adopts new §7.119,
Memorandum
of Understanding Between the Texas Department of Transportation and the Texas
Natural Resource Conservation Commission
,
without change
to the proposed text as published in the October 26,
2001, issue of the
Texas Register
(26 TexReg
8477) and will not be republished.
New §7.199 will be submitted to the United States Environmental Protection
Agency as a revision to the state implementation plan.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The rule will adopt by reference a Texas Department of Transportation (TxDOT)
memorandum of understanding (MOU), streamlining coordination between the commission
and TxDOT by consolidating separate MOUs currently in the air regulations
(30 TAC §114.250) and in water regulations (30 TAC §305.521). Rule
actions regarding these separate MOUs are proposed in this issue of the
The MOU will address transportation planning issues required by Texas Transportation
Code, §201.607, between TxDOT and state natural resource agencies, specifically
including processing of documents required by the National Environmental Policy
Act. The MOU establishes periods for review of documents coordinated under §201.607,
and ensures coordination between the agencies on road projects that could
have environmental impacts. As a result of comments received, the rule language
for new §7.119 has not changed, but changes were made to the text of
the MOU. The full text of the amended MOU is concurrently adopted in this
issue of the
Texas Register
by TxDOT in 43
TAC §2.23.
SECTION DISCUSSION
The rule adopts by reference an MOU with TxDOT. The following sections
are included in the MOU.
The
Purpose
section of the MOU outlines
TxDOT and commission policy as they apply to the environmental review of transportation
projects. The section contains statements explaining why 43 TAC §§2.40
- 2.51, TxDOT considers coordination of transportation projects with natural
resource agencies important and how the MOU will facilitate that coordination.
The
Authority
section outlines the governing
statutes for both the MOU and the rulemaking requirements of the commission.
The
Definitions
section provides clarification
for important terms used in the MOU.
The
Responsibilities
section states the
responsibilities of each agency as they apply to the environmental review
of transportation projects.
The MOU section on
Provisions Regarding Coordination
and Document Review
has two important paragraphs. Paragraph (1) establishes
the philosophy and rationale for early and timely actions by the agencies
and the necessity for TxDOT districts and commission regional offices to work
together. Paragraph (2) defines the most important air and water quality issues
selected by the department and the commission that require project coordination
of environmental documents. For air quality, transportation projects in nonattainment
and major metropolitan areas are singled out. For water quality, transportation
projects which encroach upon impaired stream segments identified under federal
Clean Water Act (CWA), §303(d), the recharge and contributing zones of
the Edwards Aquifer, and wetlands requiring CWA, §401 are certification
selected as being most important. The paragraph also contains administrative
guidance for processing environmental documents.
Two sections entitled,
Additional Provisions Regarding
Air Quality
and
Additional Provisions Regarding
Water Quality
provide for exchange of data and studies to support environmental
reviews.
The
Dispute Resolution
section provides
a stepwise procedure for resolving disputes.
The
Review of MOU
section calls for review
and update every five years, or if necessary due to changes in state or federal
law.
Copies of the MOU are available from the commission's Chief Clerk's Office.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 because it does not meet
the definition of a "major environmental rule" as defined in the Texas Government
Code, and it does not meet any of the four applicability requirements listed
in §2001.0225(a). These four requirements are: 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 proposed rulemaking provides for an MOU which satisfies the need of the
commission and TxDOT to coordinate regulatory programs and to ensure that
overlapping areas of responsibility are clarified. The rulemaking/MOU places
no requirements on the regulated community.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for the rule under
Texas Government Code, §2007.43. The specific purpose of the rule is
to establish an MOU between TxDOT and the commission. The rule will substantially
advance this purpose by outlining coordination of activities with TxDOT in
areas with an overlap of responsibilities. Promulgation and enforcement of
the rule will not burden private real property which is the subject of §2007.43,
because it pertains to an understanding between state agencies on their joint
jurisdiction and on areas of coordination. The understanding places no requirements
on the regulated community.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
Staff reviewed the rulemaking for incorporation of the MOU in Chapter 7
by reference for consistency with the Texas Coastal Management Program (CMP)
goals and policies, in accordance with the rules of the Coastal Coordination
Act of 1991, as amended (Texas Natural Resources Code, §§33.201
HEARINGS AND COMMENTERS
Proposals for this rule were published September 29, 2000 (25 TexReg 9863)
and October 26, 2001 (26 TexReg 8496). Public hearings were previously held
on October 24, 2000 and November 27, 2001. The comment period for the proposal
of September 29, 2000 closed on November 13, 2000, and the comment period
for the proposal of October 26, 2001 closed on December 3, 2001. One person
attended the hearing held on October 24, 2000, and no persons were present
at the hearing of November 27, 2001. No comments were received during either
hearing or the November 27, 2001 comment period on the adoption of §7.119.
Comments were received from one individual during the September 29, 2000 comment
period and are addressed in the RESPONSE TO COMMENTS section of this preamble.
RESPONSE TO COMMENTS
With regard to subsection (a)(1)(A), (B), and (E) of the MOU, an individual
requested adding and defining language that explains TxDOT policy. With regard
to subsection (a)(2)(C) and (E) of the MOU, the individual requested defining
language that explains TNRCC policy. This language includes the words
The commission disagrees with these comments. The "policy" paragraphs are
statements of the policies of each agency and are meant to be broad, general
statements reflecting the area of jurisdiction and purpose provided by the
legislature. These statements are provided in the MOU as background and do
not directly impact the obligations of each agency under the MOU. The commission
believes that the terms
common sense
,
With regard to subsection (a)(4), an individual requested a definition
for the word
sound
as it applies to value
of environmental decision-making that TxDOT would obtain from commission reviews
of TxDOT projects. Concerning subsection (h) of the MOU, the individual felt
that the MOU needed to define the term
good faith
efforts
as the language applies to resolution of disputes between TxDOT
and the commission.
The commission agrees with the spirit of ensuring that sound, good faith
efforts are made in commission environmental reviews of TxDOT projects and
the resolution of disputes, but disagrees with the need to change the MOU
language. The words are in common use, but each situation will have to be
resolved on the merits of the issue under discussion and the applicable laws
and jurisdiction of each agency.
With regard to subsection (c)(1) of the MOU, an individual requested that
the time for the start of construction be defined because without the definition,
the decision when to start construction would be left open and subject to
abuse.
The commission disagrees with this comment. The start of construction is
not a critical element in the MOU. The MOU encourages TxDOT to submit the
necessary environmental documents to TNRCC for review early in the project
development process (subsection (e)(1)(A)) in order to consider the environmental
issues associated with the project and to avoid or minimize impacts in a timely
manner. TxDOT must comply with a significant number of regulatory-directed
steps in the transportation planning process prior to receiving project approval.
The commission, however, does not have regulatory jurisdiction over most of
these steps. At a later stage, not addressed by the MOU, the commission does
have regulatory approval over the various environmental permits and certifications
associated with the project. Therefore, the commission does not believe that
a definition for the start of construction is necessary.
In regards to subsection (d)(1)(A) and (D) of the MOU, an individual requested
substitution of
possible
for
practicable
when TxDOT is attempting to avoid, minimize, or compensate
for anticipated environmental impacts of transportation projects; and removing
The commission disagrees with these comments. Statutory, financial, and
jurisdictional constraints often prevent either TxDOT or TNRCC from prevention
or mitigation of every possible environmental impact.
In regards to subsection (e)(1)(B), an individual felt that the language
encouraging early coordination of projects between TxDOT District Offices
and TNRCC Regional Offices should be eliminated because TNRCC Regional Offices
are overworked and not specifically trained to handle TxDOT issues.
The commission disagrees with this comment; however the language describing
the relationship between TxDOT District Offices and TNRCC Regional Offices
has been changed to clarify the extent of these activities. The language will
be amended to encourage TxDOT District Offices to contact TNRCC Regional Offices
on local and regional environmental issues. In the event that the TNRCC Regional
Office is unable to provide the requested information, TxDOT District Offices
will be referred to the Central Office in Austin.
Concerning subsection (e)(1)(C) of the MOU, the individual requested removal
of the words
when appropriate
when TxDOT and
the commission are soliciting public input concerning plans and actions affecting
environmental quality.
The commission agrees with this comment and has changed the MOU language.
Concerning subsection (e)(2)(A)(ii) of the MOU, the individual requested
removal of the language
special requests by TNRCC
, as it applies to the requirement for TxDOT to furnish to the commission
environmental documentation to evaluate air quality issues dealing with the
construction of single occupancy vehicle projects on new locations and increased
single occupancy vehicle highway capacity in major metropolitan areas.
The commission agrees with this comment and has changed the MOU language.
Concerning subsection (e)(2)(A)(iii)(I), the individual felt that the MOU
must address CWA, §401 and §404 responsibilities.
The commission agrees with this comment and has added language to the MOU
requiring projects with CWA, §401 certification to be sent to the commission
for review.
STATUTORY AUTHORITY
The new section is adopted under TWC, §5.104, which requires the commission
to enter into an MOU with any other state agency to clarify and provide for
their respective duties, responsibilities, or functions on any matter within
their jurisdictions that is not expressly assigned to either agency; THSC, §382.017,
and TWC, §5.103, both of which establish the commission's authority to
adopt rules; THSC, §382.035, which requires the commission to adopt MOUs
with other state agencies by rule; and TWC, §5.105, which establishes
commission authority to set policy.
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 12, 2002.
TRD-200202308
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: May 2, 2002
Proposal publication date: October 26, 2001
For further information, please call: (512) 239-6087
Subchapter G. TRANSPORTATION PLANNING
30 TAC §114.250
The Texas Natural Resource Conservation Commission (commission)
adopts the repeal of §114.250,
Memorandum of
Understanding with the Texas Department of Transportation
, without
changes as published in the October 26, 2001 issue of the
Texas Register
(26 TexReg 8479).
The repeal of §114.250 will be submitted to the United States Environmental
Protection Agency as a revision to the state implementation plan.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The purpose of the repeal is to consolidate Memoranda of Understanding
(MOU) adopted by reference with the Texas Department of Transportation (TxDOT).
The repeal will remove §114.250 and place the MOU on
Transportation Planning Issues: Control of Air Pollution From Motor Vehicles
, into a consolidated MOU with TxDOT in 30 TAC §7.119,
Memorandum of Understanding Between the Texas Department of Transportation
and the Texas Natural Resource Conservation Commission
. The consolidated
MOU will also address other topics such as water quality. A rule action for §7.119
is proposed in this issue of the
Texas Register
.
SECTION DISCUSSION
The repeal will consolidate references to MOUs with TxDOT in §7.119.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 because it does not meet
the definition of a "major environmental rule" as defined in §2001.0225,
and it does not meet any of the four applicability requirements listed in §2001.0225(a).
These four requirements are: 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. Elimination of the rule
allows MOUs with TxDOT to be consolidated in one location. The repeal of §114.250
places no requirements on the regulated community.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for the repeal under
Texas Government Code, §2007.043. The specific purpose of the repeal
is to make it easier for the public and the two state agencies involved to
understand the types of activities coordinated in order to prevent duplication
of effort and clarify responsibilities. The repeal will advance this purpose
by consolidating existing MOUs into one location (30 TAC Chapter 7,
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that the adopted rulemaking relates 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 Resources
Code, §§33.201
et seq
.) and the
commission's rules in 30 TAC Chapter 281, Subchapter B,
Consistency with the Coastal Management Program
.
The commission reviewed this action for consistency with the CMP goals
and policies in accordance with the rules of the Coastal Coordination Council
and determined that the action is consistent with the applicable CMP goals
and policies. The CMP policy applicable to this proposed rulemaking action
is the policy that the commission rules comply with regulations in 40 Code
of Federal Regulations (CFR) to protect and enhance air quality in the coastal
area. Section 114.250 is repealed in order to consolidate planning MOUs with
TxDOT in §7.119, and thereby implement within the state a portion of
40 CFR Part 93, which is protective of the air quality in the coastal area.
Therefore, the rule is in agreement with the CMP policy governing air pollutant
emissions. The commission solicited comments on the consistency determination.
No comments were received on the consistency determination.
HEARINGS AND COMMENTERS
Proposals for this rule were published September 29, 2000 (25 TexReg 9863)
and October 26, 2001 (26 TexReg 8496). Public hearings were previously held
on October 24, 2000 and November 27, 2001. The comment period for the proposal
of September 29, 2000 closed on November 13, 2000, and the comment period
for the proposal of October 26, 2001 closed on December 3, 2001. One person
attended the hearing held on October 24, 2000, and no persons were present
at the hearing of November 27, 2001. No comments were received during either
the hearing or comment period on the repeal of §114.250.
STATUTORY AUTHORITY
The repeal is adopted under Texas Health and Safety Code (THSC), §382.017,
which establishes the commission's authority to adopt rules; and THSC, §382.035,
which addresses the commission's authority to adopt MOUs with other state
agencies by rule.
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 12, 2002.
TRD-200202312
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: May 2, 2002
Proposal publication date: October 26, 2001
For further information, please call: (512) 239-6087
Subchapter N. ADOPTION OF MEMORANDUM OF UNDERSTANDING BY REFERENCE
30 TAC §305.521
The Texas Natural Resource Conservation Commission (commission)
adopts the repeal of Subchapter N, §305.521,
Adoption of Memorandum of Understanding by Reference
, as published
in the October 26, 2001, issue of the
Texas Register
(26 TexReg 8496).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The purpose of the repeal is to consolidate memoranda of understanding
(MOU) adopted by reference with the Texas Department of Transportation (TxDOT).
The repeal will remove §305.521 and replace the MOU on
Consolidated Permits, Water Quality Impacts From Certain Transportation Projects
, with a consolidated MOU which addresses other topics, such as air
quality. The consolidated MOU will be adopted by reference in 30 TAC §7.119,
SECTION DISCUSSION
The repeal will consolidate references to MOUs with TxDOT in §7.119.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 because it does not meet
the definition of a "major environmental rule" as defined in §2001.0225,
and it does not meet any of the four applicability requirements listed in §2001.0225(a).
These four requirements are: 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. Elimination of the rule
allows MOUs with TxDOT to be consolidated in one location. The repeal of §305.521
places no requirements on the regulated community.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for the repeal under
Texas Government Code, §2007.043. The specific purpose of the repeal
is to make it easier for the public and the two state agencies involved to
understand the types of activities coordinated in order to prevent duplication
of effort and to clarify responsibilities. The repeal will advance this purpose
by consolidating existing MOUs into one location (30 TAC Chapter 7,
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that the adopted rulemaking relates 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 Resources
Code, §§33.201
et seq
.) and the
commission's rules in 30 TAC Chapter 281, Subchapter B,
Consistency with the Coastal Management Program
.
The commission reviewed this action for consistency with the CMP goals
and policies in accordance with the rules of the Coastal Coordination Council,
and determined that the regulatory action is consistent with the applicable
CMP goals and policies. The CMP goals in 31 TAC §501.12 applicable to
this proposed rulemaking action include in general all of the ten goals, but
apply more specifically to §501.12(7): to make agency and subdivision
decision-making affecting Coastal Natural Resource Areas (CNRAs) efficient
by identifying and addressing duplication and conflicts among local, state,
and federal regulatory and other programs for the management of CNRAs. Repealing §305.521
and placing a revised and updated MOU under §7.119 will improve the efficiency
of addressing CNRAs when they are the subject of environmental documents processed
under the MOU. All of the 18 policies contained in 31 TAC §501.14 have
the potential of being addressed in environmental documents prepared by TxDOT
and reviewed by the commission under the provisions of the MOU. Repealing §305.521
and placing a revised and updated MOU under §7.119 will also improve
the efficiency of coordinated environmental review between the two agencies.
The commission solicited comments on the consistency determination. No comments
were received on the consistency determination.
HEARINGS AND COMMENTERS
Proposals for this rule were published September 29, 2000 (25 TexReg 9863)
and October 26, 2001 (26 TexReg 8496). Public hearings were previously held
on October 24, 2000 and November 27, 2001. The comment period for the proposal
of September 29, 2000 closed on November 13, 2000, and the comment period
for the proposal of October 26, 2001 closed on December 3, 2001. One person
attended the hearing held on October 24, 2000, and no persons were present
at the hearing of November 27, 2001. No comments were received during either
the hearing or comment period on the repeal of §305.521.
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code (TWC), §5.104, which
requires the commission to enter into MOUs with other state agencies to clarify
and provide for their respective duties, responsibilities, or functions; TWC, §5.103,
which establishes the commission's authority to adopt rules; and TWC, §5.105,
which establishes commission authority to set policy.
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 12, 2002.
TRD-200202304
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: May 2, 2002
Proposal publication date: October 26, 2001
For further information, please call: (512) 239-6087
Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
Chapter 305.
CONSOLIDATED PERMITS
Chapter 335.
INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE