TITLE 30.ENVIRONMENTAL QUALITY

Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Chapter 50. ACTION ON APPLICATIONS AND OTHER AUTHORIZATIONS

Subchapter F. ACTION BY THE COMMISSION

30 TAC §50.113

The Texas Commission on Environmental Quality (commission) proposes an amendment to §50.113.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

This rule package adds two new types of applications to a listing of applications that the commission may act on without holding a contested case hearing. This listing is in §50.113(d).

There are two separate reasons for the proposed amendment.

First, the proposed amendment to §50.113(d)(5) will implement House Bill (HB) 2567, 78th Legislature, 2003, which amended the Texas Water Code by adding new §27.021. HB 2567 allows the commission to issue a permit to dispose of brine produced by a desalination operation in a Class I injection well without providing the opportunity for a contested case hearing, as long as all requirements for a Class I injection well permit are met. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking.

HB 2567 may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the potential for a contested case hearing under the provisions of Texas Water Code, §27.018. The commission's ability to hold a discretionary hearing under the provisions of Texas Water Code, §5.102(b) was not amended by HB 2567. Other options for disposal of desalination brine are Class V injection wells, evaporation ponds, and surface discharge under a Texas Pollutant Discharge Elimination System permit.

Second, the proposed amendment that adds §50.113(d)(6) will update the list of applications that are not subject to a contested case hearing, by adding applications for pre-injection unit registrations. Pre-injection unit registrations were created by a previous rulemaking in the January 3, 2003, issue of the Texas Register (28 TexReg 340). The rules for pre-injection unit registrations, which can be found in 30 TAC §331.17 and §331.18, do not provide for contested case hearings. This amendment will update the list of applications that the commission may act on without holding a contested case hearing.

Changes to 30 TAC Chapters 55, 305, and 331 are also proposed in this issue of the Texas Register to implement HB 2567.

SECTION DISCUSSION

The proposed amendment to §50.113(d) will add two new types of applications to the current list of applications that the commission may act on without holding a contested case hearing. The first addition, applications for Class I injection well permits used only for the disposal of desalination brine, will be added to existing paragraph (5). This first item will implement Texas Water Code, §27.021. The second addition, applications for pre-injection unit registrations, will be inserted in new paragraph (6). This second change will bring the list in line with other provisions of a previous rulemaking. In addition, the language in existing paragraph (5) relating to other types of applications will be moved to new paragraph (7).

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jan Washburn, Program Specialist in the Federal Grants and Strategic Planning Section, determined that for the first five-year period the proposed amendment is in effect, there will be no adverse fiscal implications for the agency or any other state agency. The amendment implements HB 2567, 78th Legislature, 2003, which may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the possibility of a contested case hearing. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking. Ms. Washburn also determined that there will be no adverse fiscal impact to units of local government as a result of the proposed amendment.

PUBLIC BENEFITS AND COSTS

Ms. Washburn determined that for the first five years the proposed amendment is in effect, the anticipated public benefit will be to allow desalination projects to come on line in a shorter time frame if disposal of brine will be via injection wells. State and local governments, small and micro-businesses, and other entities could possibly save both time and money by avoiding contested case hearings. Desalination projects could also help increase the potable water supply. Ms. Washburn also determined that there will be no adverse fiscal impacts to the public or individuals as a result of the proposed amendment.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Ms. Washburn also determined that there will be no adverse fiscal implications to small or micro-businesses as a result of implementation of the proposed amendment for the first five years it is in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposal is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "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 proposal does not meet the definition of a "major environmental rule" because the specific intent of the rule is to add language to the procedural rules to provide that an application for a Class I injection well for the disposal of brine produced by a desalination operation and an application for a pre-injection unit registration are not subject to a contested case hearing. The rule substantially advances this purpose by providing that the application for a Class I injection well for the disposal of desalination brine is not subject to a contested case hearing, and by adding applications for pre-injection unit registrations to the list of applications not subject to a contested case hearing. The proposal does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs because it updates the procedural rule for applications not subject to a contested case hearing. The proposal is not anticipated to 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 permit for a Class I injection well for the disposal of desalination brine must meet all the statutory and regulatory requirements for issuance of a permit for a Class I injection well and because the provision regarding applications for pre-injection units reflects existing rules and will not adversely affect these interests.

In addition, the proposal does not exceed the four applicability requirements of Texas Government Code, §2001.0225(a) because the proposal does not: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law; 3) exceed a requirement of a delegation agreement; or 4) seek to adopt a rule solely under the general powers of the agency.

The proposal does not exceed a standard set by federal law because there are no corresponding federal standards requiring a contested case hearing on an application for a Class I injection well permit or a pre-injection unit registration. Furthermore, the proposal does not exceed an express requirement of state law because the exemption for Class I wells that dispose of brine produced by a desalination operation is mandated by state law, and because no state law expressly requires a contested case hearing on pre-injection unit registrations. In addition, the proposal does not exceed any requirement of the delegation agreement concerning injection wells because the delegation agreement does not establish express requirements for requiring a contested case hearing for the issuance of a Class I injection well permit for the disposal of brine from a desalination operation and because the delegation agreement does not address pre-injection unit registrations. Finally, this proposal is not adopted solely under the general powers of the agency, but is adopted under the specific provisions of Texas Water Code, §27.019 and §27.021.

The commission invites public comment on the draft regulatory impact analysis determination. All comments will be addressed in the publication of the final regulatory analysis.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this proposed amendment and performed an assessment of whether the amendment constitutes a taking under Texas Government Code, §2007.043.

The specific purpose of the proposed amendment is to revise the list in §50.113(d) so it reflects recent amendments to the Texas Water Code and conforms to current rules. The proposed amendment will add two applications to the list of applications that are not subject to contested case hearings: 1) applications for permits to dispose of brine produced by desalination operations in Class I injection wells and 2) applications for pre-injection unit registrations.

The proposed amendment would substantially advance the previously-stated purpose by providing that the permit procedures for Class I injection wells for the disposal of brine produced by desalination operations and the procedures for pre-injection unit registrations do not provide the opportunity for a contested case hearing.

The proposed amendment does not impose any burden on private real property and it does not result in any benefit to society from the proposed use of private real property because the proposed amendment does not directly apply to the ownership or use of a particular parcel of private real property. In addition, because the amendment does not apply to the ownership or use of a particular parcel of private real property, the amendment does not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond any reduction in value that would otherwise exist in the absence of the proposed amendment.

Therefore, promulgation and enforcement of this proposed amendment would not be a statutory or constitutional taking of private real property.

The commission has no reasonable alternative actions that could accomplish the specified purpose of revising the list in §50.113(d) so it reflects recent amendments to the Texas Water Code and conforms to current rules. Without the proposed amendment, the list of applications that are not subject to opportunities for contested case hearings would remain outdated.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the amendment is consistent with CMP goals and policies because the rulemaking is an administrative rule. The rulemaking will not have direct or significant adverse effect on any coastal natural resource areas, nor will it have a substantive effect on commission actions subject to the CMP. Promulgation and enforcement of the amendment will not violate or exceed any standards identified in the applicable CMP goals and policies.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Project Number 2003-062-331-WS. Comments must be received by 5:00 p.m., May 10, 2004. For further information, please contact Fred Duffy of the Waste Permits Division at (512) 239-6891 or Emily Barrett of the Policy and Regulations Division at (512) 239-3546.

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and §27.021, which provides that permits for disposal of brine produced by desalination operations are not subject to the hearing requirements of §27.018 and Texas Government Code, Chapter 2001. The pre-injection unit registration amendment is also proposed under Texas Health and Safety Code, §361.017 and §361.024, which provide the commission with authority to adopt rules necessary to carry out its powers and duties under the Texas Solid Waste Disposal Act; and under Texas Health and Safety Code, §401.051, which provides the commission with authority to adopt rules necessary to carry out its powers and duties under the Texas Radiation Control Act.

The proposed desalination amendment implements Texas Water Code, §27.021, relating to Permit for Disposal of Brine from Desalination Operations in Class I Wells. The proposed pre-injection unit registration amendment implements Texas Water Code, Chapter 27.

§50.113.Applicability and Action on Application.

(a) - (c) (No change.)

(d) Without holding a contested case hearing, the commission may act on:

(1) - (3) (No change.)

(4) an application for a wastewater discharge permit renewal or amendment under Texas Water Code, §26.028(d), unless the commission determines that an applicant's compliance history as determined under Chapter 60 of this title (relating to Compliance History) raises issues regarding the applicant's ability to comply with a material term of its permit; [ and ]

(5) an application for a Class I injection well permit used only for the disposal of desalination brine under Texas Water Code, §27.021, concerning Permit for Disposal of Brine From Desalination Operations in Class I Wells;

(6) an application for a pre-injection unit registration under §331.17 of this title (relating to Pre-Injection Units Registration); and

(7) [ (5) ] other types of applications where a contested case hearing request has been filed but no opportunity for hearing is provided by law.

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 March 26, 2004.

TRD-200402139

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 239-6087

Chapter 55. REQUESTS FOR RECONSIDERATION AND CONTESTED CASE HEARINGS; PUBLIC COMMENT

The Texas Commission on Environmental Quality (commission) proposes amendments to §55.101 and §55.201.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

There are three separate reasons for the proposed amendments.

First, the proposed amendments to §55.101(f)(5) and §55.201(i)(6) will implement House Bill (HB) 2567, 78th Legislature, 2003, which amended the Texas Water Code, by adding new §27.021. HB 2567 allows the commission to issue a permit to dispose of brine produced by a desalination operation in a Class I injection well without providing the opportunity for a contested case hearing, as long as all requirements for a Class I injection well permit are met. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking.

HB 2567 may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the potential for a contested case hearing under the provisions of Texas Water Code, §27.018. The commission's ability to hold a discretionary hearing under the provisions of Texas Water Code, §5.102(b) was not amended by HB 2567. Other options for disposal of desalination brine are Class V injection wells, evaporation ponds, and surface discharge under a Texas Pollutant Discharge Elimination System permit.

Second, the proposed amendment to §55.101(g)(11) and the addition of §55.201(i)(7) will update the list of applications that are not subject to a contested case hearing by adding applications for pre-injection unit registrations. Pre-injection unit registrations were created by a previous rulemaking in the January 3, 2003 issue of the Texas Register (28 TexReg 340). The rules for pre-injection unit registrations, which can be found in 30 TAC §331.17 and §331.18, do not provide for contested case hearings.

Third, the proposed amendment to §55.101(f)(4) will remove applications for weather modification licenses or permits from the list of applications that are not subject to a contested case hearing because the commission no longer administers the weather modification licensing and permitting program. Senate Bill (SB) 1175, 77th Legislature, 2001 transferred all powers, duties, obligations, rights, records, employees, and property that are used to administer the weather modification licensing and permitting program from the commission to the Texas Department of Licensing and Regulation. Additionally, SB 1175 transferred all powers, duties, obligations, rights, contracts, records, property, and unspent and unobligated appropriations and other funds used to administer the weather modification grant program to the Texas Department of Agriculture. The commission repealed the majority of the rules regarding weather modification in the March 1, 2002 issue of the Texas Register (27 TexReg 1498).

Changes to 30 TAC Chapters 50, 305, and 331 are also proposed in this issue of the Texas Register to implement HB 2567.

SECTION BY SECTION DISCUSSION

The proposed amendment to §55.101, Applicability, will update the lists in subsections (f) and (g). Subsection (f) contains a list of applications and exemptions and provides that the hearing requests related to those applications and exemptions are not subject to the provisions of Subchapters D - G of Chapter 55. Subsection (g) contains a list of applications and permits that are not subject to Subchapters D - G. In subsection (f), the proposed amendment will delete paragraph (4), which references weather modification licenses or permits. These licenses or permits are no longer regulated by the commission. The proposed amendment will also add applications for Class I injection well permits used only for the disposal of desalination brine as new paragraph (4). In subsection (g), the proposed amendment will add applications for pre-injection unit registrations to existing paragraph (11), and the existing language in paragraph (11) will move to new paragraph (12).

The proposed amendment to §55.201, Requests for Reconsideration or Contested Case Hearing, will update subsection (i), which contains the list of applications for which there is no right to a contested case hearing. Two applications will be added to the list. First, applications for Class I injection well permits used only for the disposal of brine from desalination operations will be added to paragraph (6), and the existing language under paragraph (6) will be added to new paragraph (8). Second, applications for pre-injection unit registrations will be added to new paragraph (7). This second change will update the list so it will conform to previous rule adoptions.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jan Washburn, Program Specialist in the Federal Grants and Strategic Planning Section, determined that for the first five-year period the proposed amendments are in effect, there will be no adverse fiscal implications for the agency or any other state agency. These amendments implement HB 2567, 78th Legislature, 2003, which may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the possibility of a contested case hearing. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking. Ms. Washburn also determined that there will be no adverse fiscal impact to units of local government as a result of these proposed amendments.

PUBLIC BENEFITS AND COSTS

Ms. Washburn determined that for the first five years the proposed amendments are in effect, the anticipated public benefit will be to allow desalination projects to come on line in a shorter time frame if disposal of brine will be via injection wells. State and local governments, small and micro-businesses, and other entities could possibly save both time and money by avoiding contested case hearings. Desalination projects could also help increase the potable water supply. Ms. Washburn also determined that there will be no adverse fiscal impacts to the public or individuals as a result of these proposed amendments.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Ms. Washburn also determined that there will be no adverse fiscal implications to small or micro-businesses as a result of implementation of the proposed amendments for the first five years they are in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposal is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "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 proposal does not meet the definition of a "major environmental rule" because the specific intent of the rulemaking is to add language to the procedural rules to provide that an application for a Class I injection well for the disposal of brine produced by a desalination operation and an application for a pre-injection unit registration are not subject to a contested case hearing. The rules substantially advance this purpose by providing that the application for a Class I injection well for the disposal of desalination brine is not subject to a contested case hearing, and by adding applications for pre-injection unit registrations to the list of matters not subject to a contested case hearing. The proposal does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs because it updates the procedural rule for applications not subject to a contested case hearing. The proposal is not anticipated to 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 permit for a Class I injection well for the disposal of desalination brine must meet all the statutory and regulatory requirements for issuance of a permit for a Class I injection well and because the provision relating to applications for pre-injection units reflects existing rules and will not adversely affect these interests.

In addition, the proposal does not exceed the four applicability requirements of Texas Government Code, §2001.0225(a) because the proposal does not: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law; 3) exceed a requirement of a delegation agreement; or 4) seek to adopt a rule solely under the general powers of the agency.

The proposal does not exceed a standard set by federal law because there are no corresponding federal standards requiring a contested case hearing on an application for a Class I injection well permit or a pre-injection unit registration. Furthermore, the proposal does not exceed an express requirement of state law because the exemption for Class I wells that dispose of brine produced by a desalination operation is mandated by state law, and because no state law expressly requires a contested case hearing on pre-injection unit registrations. In addition, the proposal does not exceed any requirements of the delegation agreement concerning injection wells because the delegation agreement does not establish express requirements for requiring a contested case hearing for the issuance of a Class I injection well permit for the disposal of brine from a desalination operation and because the delegation agreement does not address pre-injection unit registrations. Finally, this proposal is not adopted solely under the general powers of the agency, but is adopted under the specific provisions of Texas Water Code, §27.019 and §27.021.

The commission invites public comment on the draft regulatory impact analysis determination. All comments will be addressed in the publication of the final regulatory analysis.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed amendments and performed an assessment of whether the proposed amendments constitute a taking under Texas Government Code, §2007.043.

The specific purpose of the proposed amendments is to revise the lists in §55.101 and §55.201 so they reflect recent amendments to the Texas Water Code, §27.021 and conform to current rules regarding pre-injection unit registrations. In §55.101, the proposed amendment will revise subsection (f), which contains a list of applications and exemptions not subject to hearing requests under Subchapters D - G, and the list in subsection (g), which contains a list of applications and permits not subject to Subchapters D - G. The proposed amendment will add applications for Class I injection well permits used only for the disposal of desalination brine to subsection (f), and will add applications for pre-injection unit registrations to subsection (g). In §55.201, the proposed amendment will revise the list in subsection (i), which contains the list of applications for which there is no right to a contested case hearing. The proposed amendment will add applications for Class I injection well permits used only for the disposal of brine from desalination operations and applications for pre-injection unit registrations to subsection (i). These changes will revise the lists in §55.101 and §55.201.

The proposed amendments would substantially advance the previously-stated purpose by providing that the permit procedures for Class I injection wells for the disposal of brine produced by desalination operations and the procedures for pre-injection unit registrations do not provide the opportunity for a contested case hearing.

The proposed amendments do not impose any burden on private real property and they do not result in any benefit to society from the proposed use of private real property because the proposed amendments do not directly apply to the ownership or use of a particular parcel of private real property. In addition, because the amendments do not apply to ownership or use of a particular parcel of private real property, the amendments do not burden, restrict, or limit an owners right to property, or reduce its value by 25% or more beyond any reduction in value that would otherwise exist in the absence of the proposed amendments.

Therefore, promulgation and enforcement of the proposed amendments would not be a statutory or a constitutional taking of private real property.

The commission has no reasonable alternative actions that could accomplish the specified purpose of revising the lists in §55.101 and §55.201 so they reflect recent amendments to the Texas Water Code and conform to current rules. Without the proposed amendments to the rules, these lists would remain outdated.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the proposed amendments are consistent with CMP goals and policies because the rulemaking is an administrative rule. The rulemaking will not have direct or significant adverse effect on any coastal natural resource areas, nor will it have a substantive effect on commission actions subject to the CMP. Promulgation and enforcement of the amendments will not violate or exceed any standards identified in the applicable CMP goals and policies.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Project Number 2003-062-331-WS. Comments must be received by 5:00 p.m., May 10, 2004. For further information, please contact Fred Duffy of the Waste Permits Division at (512) 239-6891 or Emily Barrett of the Policy and Regulations Division at (512) 239-3546.

Subchapter D. APPLICABILITY AND DEFINITIONS

30 TAC §55.101

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and §27.021, which provides that permits for disposal of brine produced by desalination operations are not subject to the hearing requirements of §27.018 and Texas Government Code, Chapter 2001. The pre-injection unit registration amendment is also proposed under Texas Health and Safety Code, §361.017 and §361.024, which provide the commission with authority to adopt rules necessary to carry out its powers and duties under the Texas Solid Waste Disposal Act; and under Texas Health and Safety Code, §401.051, which provides the commission with authority to adopt rules necessary to carry out its powers and duties under the Texas Radiation Control Act.

The proposed desalination amendment implements Texas Water Code, §27.021, relating to Permit for Disposal of Brine from Desalination Operations in Class I Wells. The proposed pre-injection unit registration amendment implements Texas Water Code, Chapter 27.

§55.101.Applicability.

(a) Subchapters D - G of this chapter (relating to Applicability and Definitions; Public Comment and Public Meetings; Requests for Reconsideration or Contested Case Hearing; and Requests for Contested Case Hearing and Public Comment on Certain Applications) apply to permit applications that are declared administratively complete on or after September 1, 1999, as specified in subsections (b) - (g) of this section [ below ].

(b) (No change.)

(c) Subchapters D - F of this chapter apply only to applications filed under Texas Water Code, Chapters 26 and 27[ , ] and Texas Health and Safety Code, Chapters 361 and 382.

(d) Subchapter G of this chapter applies to all applications other than those listed in subsection (e) of this section [ §55.101(e) ] and other than those filed under Texas Water Code, Chapters 26 and 27[ , ] and Texas Health and Safety Code, Chapters 361 and 382.

(e) (No change.)

(f) Subchapters D - G of this chapter do not apply to hearing requests related to:

(1) - (3) (No change.)

(4) applications for Class I injection well permits used only for the disposal of desalination brine under Texas Water Code, §27.021, concerning Permit for Disposal of Brine From Desalination Operations in Class I Wells [ weather modification licenses or permits under Texas Water Code, Chapter 18 ]; and

(5) (No change.)

(g) Subchapters D - G of this chapter do not apply to:

(1) (No change.)

(2) applications for authorization under Chapter 321 of this title (relating to Control of Certain [ certain ] Activities by Rule) except for applications for individual permits under Subchapter B of that chapter;

(3) - (4) (No change.)

(5) applications under Texas Water Code, Chapter 13 and Texas Water Code, §§11.036, 11.041, or 12.013. The executive director shall review hearing requests concerning applications filed under these provisions, determine the sufficiency of hearing requests under standards specified by law , and may refer the application to the chief clerk for hearing processing. The maximum expected duration of a hearing on an application referred to The State Office of Administrative Hearings [ SOAH ] under this provision shall be no longer than one year from the first day of the preliminary hearing, unless otherwise directed by the commission. The issues to be considered in a State Office of Administrative Hearings [ SOAH ] hearing on an application subject to this provision are all those issues that are material and relevant under the law;

(6) - (9) (No change.)

(10) applications for multiple plant permits under Texas Health and Safety Code, §382.05194; [ and ]

(11) applications for pre-injection unit registrations under §331.17 of this title (relating to Pre-injection Units Registration); and

(12) [ (11) ] applications where the opportunity for a contested case hearing does not exist under other laws.

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 March 26, 2004.

TRD-200402140

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 239-6087

Subchapter F. REQUESTS FOR RECONSIDERATION OR CONTESTED CASE HEARING

30 TAC §55.201

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and §27.021, which provides that permits for disposal of brine produced by desalination operations are not subject to the hearing requirements of §27.018 and Texas Government Code, Chapter 2001. The pre-injection unit registration amendment is also proposed under Texas Health and Safety Code, §361.017 and §361.024, which provide the commission with authority to adopt rules necessary to carry out its powers and duties under the Texas Solid Waste Disposal Act; and under Texas Health and Safety Code, §401.051, which provides the commission with authority to adopt rules necessary to carry out its powers and duties under the Texas Radiation Control Act.

The proposed desalination amendment implements Texas Water Code, §27.021, relating to Permit for Disposal of Brine from Desalination Operations in Class I Wells. The proposed pre-injection unit registration amendment implements Texas Water Code, Chapter 27.

§55.201.Requests for Reconsideration or Contested Case Hearing.

(a) - (f) (No change.)

(g) Procedures for late filed public comments, requests for reconsideration , or contested case hearing are as follows . [ : ]

(1) A request for reconsideration or contested case hearing, or public comment shall be processed under §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing) or under §55.156 of this title (relating to Public Comment Processing), respectively, if it is filed by the deadline. The chief clerk shall accept a request for reconsideration or contested case hearing, or public comment that is filed after the deadline but the chief clerk shall not process it. The chief clerk shall place the late documents in the application file . [ ; and ]

(2) (No change.)

(h) (No change.)

(i) Applications for which there is no right to a contested case hearing include:

(1) - (4) (No change.)

(5) an application, under Texas Water Code, Chapter 26, to renew or amend a permit if:

(A) - (D) (No change.)

(E) the applicant's compliance history for the previous five years raises no issues regarding the applicant's ability to comply with a material term of the permit; [ and ]

(6) an application for a Class I injection well permit used only for the disposal of desalination brine under Texas Water Code, §27.021, concerning Permit for Disposal of Brine From Desalination Operations in Class I Wells;

(7) an application for a pre-injection unit registration under §331.17 of this title (relating to Pre-injection Units Registration); and

(8) [ (6) ] other types of applications where a contested case hearing request has been filed but no opportunity for hearing is provided by law.

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 March 26, 2004.

TRD-200402141

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 239-6087

Chapter 305. CONSOLIDATED PERMITS

Subchapter D. AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS

30 TAC §305.72

The Texas Commission on Environmental Quality (commission) proposes an amendment to §305.72.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

This rule package amends §305.72 in order to implement House Bill (HB) 2567, 78th Legislature, 2003, and its amendments to Texas Water Code, §27.021. The intent of HB 2567 was to exempt permits for Class I injection wells that dispose of brine produced by a desalination operation from the hearing required by Texas Water Code, §27.018 under the provisions of Texas Government Code, Chapter 2001. HB 2567 does not exempt Class I injection well permits for the disposal of any other waste streams from these hearing requirements. The purpose of this amendment is to provide that when a Class I injection well permit for the disposal of desalination brine is issued without a hearing under HB 2567, and then the permit holder seeks to dispose of other types of wastes in the well, the permit amendment process will provide the opportunity for a hearing as required by Texas Water Code, §27.018 under the provisions of Texas Government Code, Chapter 2001.

The proposed amendment specifies that a permit for a Class I injection well used only for the disposal of desalination brine may not be administratively modified, under §305.72(b)(4), in order to change the waste streams injected into the Class I injection well to a waste stream other than desalination brine. The effect of this amendment will be that a permit change of this kind will require a major amendment under §305.62(c)(1)(A), which provides an opportunity for a contested case hearing. This amendment will ensure that the hearing requirements of Texas Water Code, §27.018 for general purpose Class I injection well permits will be retained after a permit is issued under the provisions of HB 2567.

Amendments to 30 TAC Chapters 50, 55, and 331 are also proposed in this issue of the Texas Register to implement HB 2567.

SECTION DISCUSSION

This rule package amends §305.72(b)(4) to specify that the kind of permit modification allowed by this paragraph shall not include modifying a Class I injection well permit used only for the disposal of desalination brine to a general purpose Class I injection well permit. This amendment effectively precludes a permit holder for this type of Class I injection well (used only for the disposal of desalination brine) from adding waste streams other than desalination brine without providing the opportunity for a contested case hearing.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jan Washburn, Program Specialist in the Federal Grants and Strategic Planning Section, determined that for the first five-year period the proposed amendment is in effect, there will be no adverse fiscal implications for the agency or any other state agency. The amendment implements HB 2567, 78th Legislature, 2003, which may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the possibility of a contested case hearing. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking. Ms. Washburn also determined that there will be no adverse fiscal impact to units of local government as a result of the proposed amendment. The amendment to Chapter 305 precludes an entity that has obtained a permit to dispose of brine from adding waste streams, unless the permit holder has gone through the commission's normal permitting process, which includes the opportunity for a contested case hearing.

PUBLIC BENEFITS AND COSTS

Ms. Washburn determined that for the first five years the proposed amendment is in effect, the anticipated public benefit will be to allow desalination projects to come on line in a shorter time frame if disposal of brine will be via injection wells. State and local governments, small and micro-businesses, and other entities could possibly save both time and money by avoiding contested case hearings. Desalination projects could also help increase the potable water supply. Ms. Washburn also determined that there will be no adverse fiscal impacts to the public or individuals as a result of the proposed amendment.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Ms. Washburn also determined that there will be no adverse fiscal implications to small or micro-businesses as a result of implementation of the proposed amendment for the first five years it is in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposal is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "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 proposal does not meet the definition of a "major environmental rule" because the specific intent of the rule is to preserve the hearing requirements of Texas Water Code, §27.018. The rule substantially advances this purpose by providing that §305.72 may not be used to add a waste stream, other than desalination brine, to the permit for a Class I injection well that was issued without a contested case hearing. The proposal does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs because it maintains current requirements of state law and thus does not change the status quo. The proposal is not anticipated to 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 provision maintains existing requirements of state law and thus does not change the status quo.

In addition, the proposal does not exceed the four applicability requirements of Texas Government Code, §2001.0225(a) because the proposal does not: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law; 3) exceed a requirement of a delegation agreement; or 4) seek to adopt a rule solely under the general powers of the agency.

The proposal does not exceed a standard set by federal law because there are no corresponding federal standards requiring a contested case hearing for a permit for a Class I injection well. Furthermore, the proposal does not exceed an express requirement of state law because the hearing requirement is mandated by state law. In addition, the proposal does not exceed the requirements of the delegation agreement concerning injection wells because the delegation agreement does not require contested case hearings for Class I injection well permits to dispose of brine produced by desalination operations. Finally, this proposal is not adopted solely under the general powers of the agency, but is adopted under the specific provisions of Texas Water Code, §27.019 and §27.021.

The commission invites public comment on the draft regulatory impact analysis determination. All comments will be addressed in the publication of the final regulatory analysis.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed amendment and performed an assessment of whether the amendment constitutes a taking under Texas Government Code, §2007.043.

The specific purpose of the proposed amendment is to preserve the contested case hearing requirement of Texas Water Code, §27.018. Texas Water Code, §27.021 provides that an application for a Class I injection well for the disposal of brine produced by a desalination operation is not subject to the hearing requirements of Texas Water Code, §27.018 and Texas Government Code, Chapter 2001. Section 305.72 provides a procedure for permit modification at the request of the permittee without the opportunity for a contested case hearing. One of the permit modifications under this section is a change of waste stream. The proposal provides that this provision may not be used to add a waste stream, other than desalination brine, to the permit of a Class I injection well when that permit was obtained without the opportunity for a contested case hearing.

The proposed amendment would substantially advance the previously-stated purpose by providing that §305.72 may not be used to add a waste stream other than desalination brine to the permit of a Class I injection well issued without the opportunity for a contested case hearing.

The proposed amendment does not impose any burden on private real property and it does not result in any benefit to society from the proposed use of private real property because the proposed amendment does not directly apply to the ownership or use of a particular parcel of private real property. In addition, because the amendment does not apply to the ownership or use of a particular parcel of private real property, the amendment does not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond any reduction in value that would otherwise exist in the absence of the proposed amendment.

Therefore, promulgation and enforcement of this proposed amendment would not be a statutory or a constitutional taking of private real property.

The commission has no reasonable alternative actions that could accomplish the specified purpose of preserving the contested case hearing requirement of Texas Water Code, §27.018. The proposed amendment ensures that the contested case hearing requirements for general purpose Class I injection well permits will be retained after a permit is issued under the provisions of HB 2567, 78th Legislature, 2003.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Coastal Management Program (CMP) be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the proposed amendment is consistent with CMP goals and policies because the rulemaking is an administrative stipulation that specifies that §305.72(b)(4) shall not be used to change a permit from a Class I injection well permit used only for the disposal of desalination brine to a general purpose Class I injection well permit. This amendment will not have direct or significant adverse effect on any coastal natural resource areas; will not have a substantive effect on commission actions subject to the CMP; and promulgation and enforcement of the amendment will not violate (exceed) any standards identified in the applicable CMP goals and policies.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Project Number 2003-062-331-WS. Comments must be received by 5:00 p.m., May 10, 2004. For further information, please contact Fred Duffy of the Waste Permits Division at (512) 239-6891 or Emily Barrett of the Policy and Regulations Division at (512) 239-3546.

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.103, which provides the commission with authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and §27.021, which provides that permits for disposal of brine produced by desalination operations are not subject to the hearing requirements of §27.018 and Texas Government Code, Chapter 2001.

The amendment implements Texas Water Code, §27.018 and §27.021.

§305.72.Underground Injection Control (UIC) Permit Modifications at the Request of the Permittee.

(a) (No change.)

(b) With the permittee's consent, the executive director may modify administratively a permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following the procedures and notice requirements of this chapter. Any change to the permit not processed as a minor modification under this section must be made for cause and in compliance with appropriate public notice requirements. Minor modifications may only:

(1) correct [ Correct ] typographical errors;

(2) require [ Require ] more frequent monitoring or reporting by the permittee;

(3) change [ Change ] an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

(4) change [ Change ] quantities or types of fluids injected which are within the capacity of the facility as permitted and in the judgement of the executive director, would not interfere with the operation of the facility or its ability to meet conditions described in the permit and would not change its classification , provided however, that this provision shall not be used to add a waste stream other than desalination brine to the permit of a Class I injection well issued without the opportunity for a contested case hearing ;

(5) change [ Change ] construction requirements, provided that the alterations comply with the requirements of Chapter 331 of this title (relating to Underground Injection Control); or

(6) amend [ Amend ] a plugging and abandonment plan which has been updated under §305.154(7) of this title (relating to Standards).

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 March 26, 2004.

TRD-200402142

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 239-6087

Chapter 331. UNDERGROUND INJECTION CONTROL

Subchapter A. GENERAL PROVISIONS

30 TAC §331.2

The Texas Commission on Environmental Quality (commission) proposes an amendment to §331.2.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

The proposed amendment will implement House Bill (HB) 2567, 78th Legislature, 2003, and its amendment to Texas Water Code, §27.021. Changes to 30 TAC Chapters 50, 55, and 305 are also proposed in this issue of the Texas Register to implement HB 2567.

HB 2567 allows the commission to issue a permit to dispose of brine produced by a desalination operation in a Class I injection well without providing the opportunity for a contested case hearing, as long as all requirements for a Class I injection well permit are met. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking.

HB 2567 may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the potential for a contested case hearing under the provisions of Texas Water Code, §27.018. The commission's ability to hold a discretionary hearing under the provisions of Texas Water Code, §5.102(b) was not amended by HB 2567. Other options for disposal of desalination brine are Class V injection wells, evaporation ponds, and surface discharge under a Texas Pollutant Discharge Elimination System permit.

HB 2567 does not define the terms "brine" or "desalination operation." The proposed amendment defines "desalination brine" and "desalination operation" to assist the regulated community and the public in understanding the terms when they are used to implement HB 2567 in Chapters 50, 55, and 305. Desalination operations produce useable water and a waste stream. The waste stream, referred to as "brine produced by a desalination operation" in HB 2567, is defined as "desalination brine" in this proposal. "Desalination brine" is often referred to as "reject water" by the desalination industry. The composition of desalination brine will vary, depending on the source water and the desalination process used. All Class I injection well permit applications require that a waste analysis plan be submitted that provides a description and analysis of the chemical and physical characteristics of the waste streams proposed to be injected. Desalination brine may be non-hazardous or hazardous waste depending on the results of the waste analysis. The statutory and regulatory requirements for disposal of hazardous brine may be more stringent than the requirements for disposal of non-hazardous brine.

SECTION DISCUSSION

Section 331.2, Definitions, adds "desalination brine" and "desalination operation" as new paragraphs (29) and (30) and renumbers subsequent definitions. The commission has chosen the term "desalination brine" to describe "the waste stream produced by a desalination operation" to distinguish and separate this type of brine from other regulated and commercial brines. The commission is defining the term "desalination operation" as "the process which produces water of useable quality by desalination" to provide guidance regarding the scope of the term "operation" and to indicate that desalination brine is the waste stream produced by the process of desalination.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jan Washburn, Program Specialist in the Federal Grants and Strategic Planning Section, determined that for the first five-year period the proposed amendment is in effect, there will be no adverse fiscal implications for the agency or any other state agency. The amendment implements HB 2567, 78th Legislature, 2003, which simplifies and expedites the permitting process for Class I injection well permits for the disposal of desalination brine. The bill allows the commission to issue a permit to dispose of brine produced by a desalination operation in a Class I injection well without providing the opportunity for a contested case hearing, as long as all requirements for a Class I injection well permit are met. Public notice of, and the opportunity to comment on, a permit application will not be affected by this rulemaking. Ms. Washburn also determined that there will be no adverse fiscal impact to units of local government as a result of the proposed amendment.

PUBLIC BENEFITS AND COSTS

Ms. Washburn determined that for the first five years the proposed amendment is in effect, the anticipated public benefit will be indirect. This rulemaking may expedite the approval of Class I injection well permits for the disposal of desalination brine by removing the possibility of a contested case hearing. If this expedited permitting encourages entities to open desalination operations, then an immediate impact could be an increase in the supply of potable water in those areas where desalination is occurring. The public may benefit from the construction and operation of future desalination operations, because potable water produced from these operations can be used for municipal, domestic, and industrial purposes. Ms. Washburn also determined that there will be no adverse fiscal impacts to the public or individuals as a result of the proposed amendment.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Ms. Washburn also determined that there will be no significant fiscal implications to small or micro-businesses as a result of implementation of the proposed amendment for the first five years it is in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposal is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "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 proposal does not meet the definition of a "major environmental rule" because the specific intent of the rule is to define the terms "desalination brine" and "desalination operation." These terms are used in other chapters of this title to provide that an application for a Class I injection well for the disposal of brine from a desalination operation is not subject to the hearing requirements of Texas Water Code, §27.018 and Texas Government Code, Chapter 2001 (contested case hearing). The rule substantially advances this purpose by defining the terms "desalination brine" and "desalination operation." The proposal does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs because it merely defines terms used in other rules. The proposal is not anticipated to 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 applicant for the permit must meet all the statutory and regulatory requirements for issuance of a permit for a Class I injection well.

In addition, the proposal does not exceed the four applicability requirements of Texas Government Code, §2001.0225 because the proposal does not: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law; 3) exceed a requirement of a delegation agreement; or 4) seek to adopt a rule solely under the general powers of the agency.

The proposal does not exceed a standard set by federal law because there are no such corresponding federal standards requiring specific definitions of these terms. Furthermore, the proposal does not exceed an express requirement of state law because the proposal is mandated by state law. In addition, the proposal does not exceed the requirements of the delegation agreement concerning injection wells because the delegation agreement does not require specific definitions of these terms. Finally, this proposal is not adopted solely under the general powers of the agency, but is adopted under the specific provisions of Texas Water Code, §27.019 and §27.021.

The commission invites public comment on the draft regulatory impact analysis determination. All comments will be addressed in the publication of the final regulatory analysis.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed amendment and performed an assessment of whether the amendment constitutes a taking under Texas Government Code, §2007.043. The specific purpose of the proposed amendment is to define the terms "desalination brine" and "desalination operation." These terms are used in other chapters of this title to provide that an application for a Class I injection well for the disposal of brine from a desalination operation is not subject to the hearing requirements of Texas Water Code, §27.018 and Texas Government Code, Chapter 2001 (contested case hearing).

The proposed amendment would substantially advance the previously-stated purpose by defining the terms "desalination brine" and "desalination operation."

The proposed amendment does not impose any burden on private real property and it does not result in any benefit to society from the proposed use of private real property because the proposed amendment does not directly apply to the ownership or use of a particular parcel of private real property. In addition, because the amendment does not apply to the ownership or use of a particular parcel of private real property, the amendment does not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond any reduction in value that would otherwise exist in the absence of the proposed amendment.

Therefore, promulgation and enforcement of this proposed amendment would not be a statutory or a constitutional taking of private real property.

The commission has no reasonable alternative actions that could accomplish the specified purpose of defining the terms "desalination brine" and "desalination operation." Without the proposed amendment, the definitions related to HB 2567, 78th Legislature, 2003 would remain outdated.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will it affect any action/authorization identified in §505.11. Therefore, the proposed rule is not subject to the Coastal Management Program.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Project Number 2003-062-331-WS. Comments must be received by 5:00 p.m., May 10, 2004. For further information, please contact Fred Duffy of the Waste Permits Division at (512) 239-6891 or Emily Barrett of the Policy and Regulations Division at (512) 239-3546.

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and §27.021, which provides that permits for disposal of brine produced by desalination operations are not subject to the hearing requirements of §27.018 and Texas Government Code, Chapter 2001.

The proposed amendment implements Texas Water Code, §27.021.

§331.2.Definitions.

General definitions can be found in Chapter 3 of this title (relating to Definitions). The following words and terms, when used in this chapter, have the following meanings.

(1) - (8) (No change.)

(9) Area of review--The area surrounding an injection well described according to the criteria set forth in §331.42 of this title (relating to Area of Review) or in the case of an area permit, the project area plus a circumscribing area the width of which is either 1/4 [ one fourth of a ] mile or a number calculated according to the criteria set forth in §331.42 of this title.

(10) - (28) (No change.)

(29) Desalination brine--The waste stream produced by a desalination operation containing concentrated salt water, other naturally occurring impurities, and additives used in the operation and maintenance of a desalination operation.

(30) Desalination operation--A process which produces water of usable quality by desalination.

(31) [ (29) ] Disposal well--A well that is used for the disposal of waste into a subsurface stratum.

(32) [ (30) ] Disturbed salt zone--Zone of salt enveloping a salt cavern, typified by increased values of permeability or other induced anomalous conditions relative to undisturbed salt which lies more distant from the salt cavern, and is the result of mining activities during salt cavern development and which may vary in extent through all phases of a cavern including the post-closure phase.

(33) [ (31) ] Drilling mud--A heavy suspension used in drilling an injection well, introduced down the drill pipe and through the drill bit.

(34) [ (32) ] Drywell--A well, other than an improved sinkhole or subsurface fluid distribution system, completed above the water table so that its bottom and sides are typically dry except when receiving fluids.

(35) [ (33) ] Excursion--The movement of mining solutions into a designated monitor well.

(36) [ (34) ] Existing injection well--A Class I well which was authorized by an approved state or EPA-administered program before August 25, 1988 or a well which has become a Class I well as a result of a change in the definition of the injected waste which would render the waste hazardous under §335.1 of this title (relating to Definitions).

(37) [ (35) ] Fluid--Material or substance which flows or moves whether in a semisolid, liquid, sludge, gas, or any other form or state.

(38) [ (36) ] Formation--A body of rock characterized by a degree of lithologic homogeneity which is prevailingly, but not necessarily, tabular and is mappable on the earth's surface or traceable in the subsurface.

(39) [ (37) ] Formation fluid--Fluid present in a formation under natural conditions.

(40) [ (38) ] Fresh water--Water having bacteriological, physical, and chemical properties which make it suitable and feasible for beneficial use for any lawful purpose.

(A) For the purposes of this subchapter, it will be presumed that water is suitable and feasible for beneficial use for any lawful purpose only if:

(i) it is used as drinking water for human consumption; or

(ii) the groundwater contains fewer than 10,000 milligrams per liter (mg/L) total dissolved solids; and

(iii) it is not an exempted aquifer.

(B) This presumption may be rebutted upon a showing by the executive director or an affected person that water containing greater than or equal to 10,000 mg/L total dissolved solids can be put to a beneficial use.

(41) [ (39) ] Groundwater--Water below the land surface in a zone of saturation.

(42) [ (40) ] Groundwater protection area--A geographic area (delineated by the state under the Safe Drinking Water Act, 42 United States Code, §300j-13) near and/or surrounding community and non-transient, non-community water systems that use groundwater as a source of drinking water.

(43) [ (41) ] Hazardous waste--Hazardous waste as defined in §335.1 of this title (relating to Purpose, Scope, and Applicability).

(44) [ (42) ] Improved sinkhole--A naturally occurring karst depression or other natural crevice found in carbonate rocks, volcanic terrain, and other geologic settings which has been modified by man for the purpose of directing and emplacing fluids into the subsurface.

(45) [ (43) ] Injection interval--That part of the injection zone in which the well is authorized to be screened, perforated, or in which the waste is otherwise authorized to be directly emplaced.

(46) [ (44) ] Injection operations--The subsurface emplacement of fluids occurring in connection with an injection well or wells, other than that occurring solely for construction or initial testing.

(47) [ (45) ] Injection well--A well into which fluids are being injected. Components of an injection well annulus monitoring system are considered to be a part of the injection well.

(48) [ (46) ] Injection zone--A formation, a group of formations, or part of a formation that receives fluid through a well.

(49) [ (47) ] In service--The operational status when an authorized injection well is capable of injecting fluids, including times when the well is shut-in and on standby status.

(50) [ (48) ] Intermediate casing--A string of casing with diameter intermediate between that of the surface casing and that of the smaller long-string or production casing, and which is set and cemented in a well after installation of the surface casing and prior to installation of the long-string or production casing.

(51) [ (49) ] Large capacity cesspool--A cesspool that is designed for a flow of greater than 5,000 gallons per day.

(52) [ (50) ] Large capacity septic system--A septic system that is designed for a flow of greater than 5,000 gallons per day.

(53) [ (51) ] Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.

(54) [ (52) ] Liner--An additional casing string typically set and cemented inside the long string casing and occasionally used to extend from base of the long string casing to or through the injection zone.

(55) [ (53) ] Long string casing or production casing--A string of casing that is set inside the surface casing and that usually extends to or through the injection zone.

(56) [ (54) ] Lost circulation zone--A term applicable to rotary drilling of wells to indicate a subsurface zone which is penetrated by a wellbore, and which is characterized by rock of high porosity and permeability, into which drilling fluids flow from the wellbore to the degree that the circulation of drilling fluids from the bit back to ground surface is disrupted or "lost."

(57) [ (55) ] Mine area--The area defined by a line through the ring of designated monitor wells installed to monitor the production zone.

(58) [ (56) ] Mine plan--A map of adopted mine areas and an estimated schedule indicating the sequence and timetable for mining and any required aquifer restoration.

(59) [ (57) ] Monitor well--Any well used for the sampling or measurement of any chemical or physical property of subsurface strata or their contained fluids.

(A) Designated monitor wells are those listed in the production area authorization for which routine water quality sampling is required.

(B) Secondary monitor wells are those wells in addition to designated monitor wells, used to delineate the horizontal and vertical extent of mining solutions.

(C) Pond monitor wells are wells used in the subsurface surveillance system near ponds or other pre-injection units.

(60) [ (58) ] Motor vehicle waste disposal well--A well used for the disposal of fluids from vehicular repair or maintenance activities, including, but not limited to, repair and maintenance facilities for cars, trucks, motorcycles, boats, railroad locomotives, and airplanes.

(61) [ (59) ] New injection well--Any well, or group of wells, not an existing injection well.

(62) [ (60) ] New waste stream--A waste stream not permitted.

(63) [ (61) ] Non-commercial facility--A Class I permitted facility which operates only non-commercial wells.

(64) [ (62) ] Non-commercial underground injection control (UIC) Class I well facility--A UIC Class I permitted facility where only non-commercial wells are operated.

(65) [ (63) ] Non-commercial well--An underground injection control Class I injection well which disposes of wastes that are generated on-site, at a captured facility or from other facilities owned or effectively controlled by the same person.

(66) [ (64) ] Off-site--Property which cannot be characterized as on-site.

(67) [ (65) ] On-site--The same or geographically contiguous property which may be divided by public or private rights-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access, is also considered on-site property.

(68) [ (66) ] Out of service--The operational status when a well is not authorized to inject fluids, or the well itself is incapable of injecting fluids for mechanical reasons, maintenance operations, or well workovers or when injection is prohibited due to the well's inability to comply with the in-service operating standards of this chapter.

(69) [ (67) ] Permit area--The area owned or under lease by the permittee which may include buffer areas, mine areas, and production areas.

(70) [ (68) ] Plugging--The act or process of stopping the flow of water, oil, or gas into or out of a formation through a borehole or well penetrating that formation.

(71) [ (69) ] Point of injection--For a Class V well, the last accessible sampling point prior to fluids being released into the subsurface environment.

(72) [ (70) ] Pollution--The contamination of water or the alteration of the physical, chemical, or biological quality of water:

(A) that makes it harmful, detrimental, or injurious:

(i) to humans, animal life, vegetation, or property; or

(ii) to public health, safety, or welfare; or

(B) that impairs the usefulness or the public enjoyment of the water for any lawful and reasonable purpose.

(73) [ (71) ] Pre-injection units--The on-site above-ground appurtenances, structures, equipment, and other fixtures including the injection pumps, filters, tanks, surface impoundments, and piping for wastewater transmission between any such facilities and the well that are or will be used for storage or processing of waste to be injected, or in conjunction with an injection operation.

(74) [ (72) ] Production area--The area defined by a line generally through the outer perimeter of injection and recovery wells used for mining.

(75) [ (73) ] Production area authorization--A document, issued under the terms of an injection well permit, approving the initiation of mining activities in a specified production area within a permit area.

(76) [ (74) ] Production zone--The stratigraphic interval extending vertically from the shallowest to the deepest stratum into which mining solutions are authorized to be introduced.

(77) [ (75) ] Radioactive waste--Any waste which contains radioactive material in concentrations which exceed those listed in 10 Code of Federal Regulations Part 20, Appendix B, Table II, Column 2 and as amended.

(78) [ (76) ] Restoration demonstration--A test or tests conducted by a permittee to simulate production and restoration conditions and verify or modify the fluid handling values submitted in the permit application.

(79) [ (77) ] Restored aquifer--An aquifer whose local groundwater quality has, by natural or artificial processes, returned to levels consistent with restoration table values or better as verified by an approved sampling program.

(80) [ (78) ] Salt cavern--A hollowed-out void space that has been purposefully constructed within a salt stock, typically by means of solution mining by circulation of water from a well or wells connected to the surface.

(81) [ (79) ] Salt cavern confining zone--A zone between the salt cavern injection zone and all underground sources of drinking water and freshwater aquifers, that acts as a barrier to movement of waste out of a salt cavern injection zone, and consists of the entirety of the salt stock excluding any portion of the salt stock designated as an underground injection control (UIC) Class I salt cavern injection zone or any portion of the salt stock occupied by a UIC Class II or Class III salt cavern or its disturbed salt zone.

(82) [ (80) ] Salt cavern injection interval--That part of a salt cavern injection zone consisting of the void space of the salt cavern into which waste is stored or disposed of, or which is capable of[ , ] receiving waste for storage or disposal.

(83) [ (81) ] Salt cavern injection zone--The void space of a salt cavern that receives waste through a well, plus that portion of the salt stock enveloping the salt cavern, and extending from the boundaries of the cavern void outward a sufficient thickness to contain the disturbed salt zone, and an additional thickness of undisturbed salt sufficient to ensure that adequate separation exists between the outer limits of the injection zone and any other activities in the domal area.

(84) [ (82) ] Salt cavern solid waste disposal well or salt cavern disposal well--For the purposes of this chapter, regulations of the commission, and not to underground injection control (UIC) Class II or UIC Class III wells in salt caverns regulated by the Texas Railroad Commission, a salt cavern disposal well is a type of UIC Class I injection well used:

(A) to solution mine a waste storage or disposal cavern in naturally occurring salt; and/or

(B) to inject hazardous, industrial, or municipal waste into a salt cavern for the purpose of storage or disposal of the waste.

(85) [ (83) ] Salt dome--A geologic structure that includes the caprock, salt stock, and deformed strata surrounding the salt stock.

(86) [ (84) ] Salt stock--A geologic formation consisting of a relatively homogeneous mixture of evaporite minerals dominated by halite (NaCl) that has migrated from originally tabular beds into a vertical orientation.

(87) [ (85) ] Sanitary waste--Liquid or solid waste originating solely from humans and human activities, such as wastes collected from toilets, showers, wash basins, sinks used for cleaning domestic areas, sinks used for food preparation, clothes washing operations, and sinks or washing machines where food and beverage serving dishes, glasses, and utensils are cleaned.

(88) [ (86) ] Septic system--A well that is used to emplace sanitary waste below the surface, and is typically composed of a septic tank and subsurface fluid distribution system or disposal system.

(89) [ (87) ] Stratum--A sedimentary bed or layer, regardless of thickness, that consists of generally the same kind of rock or material.

(90) [ (88) ] Subsurface fluid distribution system--An assemblage of perforated pipes, drain tiles, or other similar mechanisms intended to distribute fluids below the surface of the ground.

(91) [ (89) ] Surface casing--The first string of casing (after the conductor casing, if any) that is set in a well.

(92) [ (90) ] Temporary injection point--A method of Class V injection that uses push point technology (injection probes pushed into the ground) for the one-time injection of fluids into or above an underground source of drinking water.

(93) [ (91) ] Total dissolved solids (TDS)--The total dissolved (filterable) solids as determined by use of the method specified in 40 Code of Federal Regulations Part 136, as amended.

(94) [ (92) ] Transmissive fault or fracture--A fault or fracture that has sufficient permeability and vertical extent to allow fluids to move between formations.

(95) [ (93) ] Underground injection--The subsurface emplacement of fluids through a well.

(96) [ (94) ] Underground injection control (UIC)--The program under the federal Safe Drinking Water Act, Part C, including the approved Texas state program.

(97) [ (95) ] Underground source of drinking water (USDW)--An "aquifer" or its portions:

(A) which supplies drinking water for human consumption; or

(B) in which the groundwater contains fewer than l0,000 milligrams per liter total dissolved solids; and

(C) which is not an exempted aquifer.

(98) [ (96) ] Upper limit--A parameter value established by the commission in a permit/production area authorization which when exceeded indicates mining solutions may be present in designated monitor wells.

(99) [ (97) ] Verifying analysis--A second sampling and analysis of control parameters for the purpose of confirming a routine sample analysis which indicated an increase in any control parameter to a level exceeding the upper limit. Mining solutions are assumed to be present in a designated monitor well if a verifying analysis confirms that any control parameter in a designated monitor well is present in concentration equal to or greater than the upper limit value.

(100) [ (98) ] Well--A bored, drilled, or driven shaft whose depth is greater than the largest surface dimension, a dug hole whose depth is greater than the largest surface dimension, an improved sinkhole, or a subsurface fluid distribution system but does not include any surface pit, surface excavation, or natural depression.

(101) [ (99) ] Well injection--The subsurface emplacement of fluids through a well.

(102) [ (100) ] Well monitoring--The measurement by on-site instruments or laboratory methods of any chemical, physical, radiological, or biological property of the subsurface strata or their contained fluids penetrated by the wellbore.

(103) [ (101) ] Well stimulation--Several processes used to clean the well bore, enlarge channels, and increase pore space in the interval to be injected thus making it possible for wastewater to move more readily into the formation, including, but not limited to, surging, jetting, blasting, acidizing, and hydraulic fracturing.

(104) [ (102) ] Workover--An operation in which a down-hole component of a well is repaired, the engineering design of the well is changed, or the mechanical integrity of the well is compromised. Workovers include operations such as sidetracking, the addition of perforations within the permitted injection interval, and the addition of liners or patches. For the purposes of this chapter, workovers do not include well stimulation operations.

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 March 26, 2004.

TRD-200402143

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 239-6087

Chapter 339. GROUNDWATER PROTECTION RECOMMENDATION LETTERS AND FEES

30 TAC §§339.1 - 339.3

The Texas Commission on Environmental Quality (commission or TCEQ) proposes new §§339.1 - 339.3.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The purpose of the proposed rules is to implement House Bill 3442, 78th Legislature, 2003, by establishing, in rule, the amount, applicability, and collection of fees and procedures to process expedited requests for groundwater protection recommendation letters. Applicants for Railroad Commission of Texas (RRC) authorizations must submit these letters with their RRC applications.

SECTION BY SECTION DISCUSSION

Proposed new §339.1, Purpose, states that the purpose of the chapter is to authorize the processing of requests for groundwater protection recommendation letters required by the RRC for approval of an application. The letters recommend the depth, or depths, that usable-quality groundwater should be isolated or protected in oil and gas operations. At the present time, the executive director provides these letters to applicants for RRC authorizations, but no commission rules address the topic.

Proposed new §339.2, Applicability, states that this chapter applies to Texas Commission on Environmental Quality groundwater protection recommendation letters required by RRC rules (oil and gas production) or Texas Water Code (TWC), §27.033 (disposal wells). This section also states that the chapter applies to the expedited processing of requests for some of these letters and sets fees for expedited processing as authorized by TWC, §5.701. The commission does not provide expedited processing of requests for groundwater protection letters for the drilling and use of disposal wells permitted by the RRC under TWC, §27.033.

Proposed new §339.3, Groundwater Protection Letter Requests, Expedited Processing, and Fee, describes how an applicant shall submit a request for a groundwater protection recommendation letter on a form approved by the executive director; establishes procedures for the processing of requests for groundwater protection recommendation letters; and sets the fee for expedited processing of groundwater protection recommendation letters at $75. This section also states that the executive director shall establish procedures for the expedited processing of requests for groundwater protection recommendation letters. The executive director has set an internal goal of processing these letters within one working day and expects to be able to meet this goal in most cases.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeffrey Horvath, Analyst, Strategic Planning and Grants Management, determined that for the first five-year period the proposed new rules are in effect, there will be fiscal implications for state government but not for units of local government as a result of the administration or enforcement of the proposed rules.

The proposed rules implement sections of House Bill 3442, 78th Legislature, 2003. Certain provisions in the bill amended the TWC to allow the TCEQ to assess a $75 fee for the expedited processing of a request for a groundwater protection recommendation letter for drilling, plugging, or cathodic protection of oil or gas wells. These letters, which are then provided to the RRC, and state the total depth of surface casing needed during the drilling of oil and gas wells to protect usable groundwater in the state. The TCEQ recommendation letters are required by RRC regulations for the processing of RRC permit applications. The letters have been provided for about 50 years (since 1956).

Oil and gas operators would pay the fee only if they choose to request expedited processing of a groundwater protection recommendation letter from the TCEQ's Surface Casing Team. A fee for an expedited letter was not previously assessed to an applicant. A letter that is not expedited will not require a fee. The executive director has set an internal goal of processing these expedited letters to applicants within one working day.

House Bill 1, 78th Legislature, 2003 appropriated the TCEQ $225,000 in Fiscal Year (FY) 2004 and the same amount in FY 2005 to cover the cost of processing expedited letters for well drilling. The agency estimates collecting approximately $400,000 in fee revenue each FY and processing approximately 5,300 expedited letters each year. Fee revenue is deposited into the Water Resource Management Account.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the first five years the proposed new rules are in effect, the public benefit anticipated from the enforcement of and compliance with the proposed rules will be compliance with state law.

No individuals or businesses are required to comply with the proposed new rules. Individuals or businesses that choose to request expedited processing of a groundwater protection recommendation letter from the Surface Casing Team will be charged a $75 fee.

Oil and gas operators seeking the expedited processing of a request for a groundwater protection recommendation letter for drilling, plugging, or cathodic protection of oil or gas wells will pay a fee of $75 for each expedited letter. The total costs to a particular oil or gas operator would depend upon the number of expedited requests that were made.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated as a result of implementation of the proposed new rules for small or micro-businesses. Oil and gas operators that are small or micro-businesses would not be assessed a fee if they request a groundwater protection recommendation letter for drilling, plugging, or cathodic protection of oil or gas wells. However, those operators who choose to request expedited processing of a groundwater protection recommendation letter from the Surface Casing Team will be charged a $75 fee.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed new rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that this proposal is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This proposal does not meet the definition of a "major environmental rule" because the specific intent of the rules is to require an applicant to pay a fee of $75 only if he or she chooses to obtain expedited processing of a groundwater protection recommendation letter. These rules substantially advance this purpose by providing for expedited processing of requests for these letters upon payment of such a fee. This proposal does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs because no fee is required for a groundwater protection recommendation letter; these rules only set a fee for expedited processing of a request for these letters. This proposal is not anticipated to adversely affect in a material way the environment or the public health and safety of the state or a sector of the state because it sets a fee only for expedited processing.

In addition, this proposal does not exceed the four applicability requirements of Texas Government Code, §2001.0025(a)(1) - (4) in that this proposal does not: 1) exceed a standard set by federal law; 2) exceed an express requirement of state law; 3) exceed a requirement of a delegation agreement; or 4) propose to adopt a rule solely under the general powers of the agency.

This proposal does not exceed a standard set by federal law because there are no such corresponding federal standards regarding fees for expedited processing of groundwater protection recommendation letters. Further, this proposal does not exceed an express requirement of state law because the fee for expedited processing of a groundwater protection recommendation letter does not exceed the limit of $75 set by TWC, §5.701(r). This proposal does not exceed the requirements of the delegation agreement concerning injection wells because the commission does not regulate the wells that are the subject of the letters and because the delegation agreement does not establish express requirements for fees for processing of expedited groundwater protection recommendation letters. Finally, this proposal is not adopted solely under the general powers of the agency, but is adopted under the specific provisions of TWC, §§5.701(r), 27.019, 27.021, 27.033.

The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission prepared a takings impact assessment for these proposed rules in accordance with Texas Government Code, §2007.043. The commission's assessment indicates that Texas Government Code, Chapter 2007 applies to these proposed rules and that these rules do not constitute a statutory or constitutional taking.

The specific purpose of these proposed rules is to allow an applicant for an RRC authorization to pay a fee of $75 to obtain expedited processing of a groundwater protection recommendation letter. House Bill 3442, 78th Legislature, 2003, amended TWC to set a maximum fee for expedited processing of a request for a letter from the executive director stating the total depth of surface casing needed during the drilling of wells to protect usable-quality groundwater in the state and required for the processing of certain permits from the RRC to $75.

This proposal substantially advances the purpose stated in the preceding paragraph by providing for the expedited processing of requests for these letters upon payment of a fee of $75.

This proposal does not place any burden on real property and it does not obtain any benefit to society from the proposed use of private real property because it does not directly apply to the ownership or use of a particular parcel of private real property.

Promulgation of this proposal will not constitute a taking because there is no fee for a groundwater protection recommendation letter; the fee is only incurred if an applicant requests expedited processing of a groundwater protection recommendation letter. The fee does not directly apply to the ownership or use of a particular parcel of private real property.

There are alternative actions that the commission may take regarding this proposal, such as not charging a fee or charging a lower fee than $75; however, it is reasonable to charge a fee of $75 because that amount is estimated to be necessary to cover the costs of expedited processing of requests for these letters.

This proposal does not burden an owner of real property in a manner that would be a statutory or constitutional taking. Specifically, the proposed rules 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, nor reduce its value by 25% or more beyond that which would otherwise exist in the absence of the proposed rules. This proposal simply sets a fee to be paid when an applicant opts to request expedited processing of a groundwater protection recommendation letter.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed these proposed rules for consistency with the Texas Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that these proposed rules will not have direct or significant adverse effect on any coastal natural resources areas, nor will they have a substantive effect on commission actions subject to the CMP.

SUBMITTAL OF COMMENTS

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., May 10, 2004, and should reference Rule Project Number 2004-001-339-WS. For further information, please contact Michael Bame, Policy and Regulations Division, at (512) 239-5658.

STATUTORY AUTHORITY

The new sections are proposed under TWC, §5.103, which provides the commission with authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; §5.701(r), relating to fees; §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; §27.032, regarding information required of applicants by the RRC; §27.033, regarding letters from the executive director; §27.051, regarding the issuance of permits; and §27.0511, regarding conditions of certain permits.

The proposed new sections implement TWC, §5.701(r).

§339.1.Purpose.

This chapter authorizes the executive director to provide groundwater protection recommendation letters to the Railroad Commission of Texas for use in processing applications. This chapter also establishes the fee for the expedited processing of requests for groundwater protection recommendation letters.

§339.2.Applicability.

This chapter applies to Texas Commission on Environmental Quality groundwater protection recommendation letters required by Railroad Commission of Texas (RRC) rules or Texas Water Code, §27.033 except that §339.3(b) and (c) of this title (relating to Groundwater Protection Letter Requests, Expedited Processing, and Fee) do not apply to letters related to drilling and use of disposal wells permitted by the RRC. The executive director provides these letters to applicants for authorizations from the RRC. The letters contain a recommendation to the RRC on the depth, or depths, that usable-quality groundwater should be isolated or protected in oil and gas operations. This chapter also applies to the expedited processing of requests for these letters and sets fees for expedited processing as authorized by Texas Water Code, §5.701.

§339.3.Groundwater Protection Letter Requests, Expedited Processing, and Fee.

(a) The applicant shall submit a request for a groundwater protection recommendation letter on a form approved by the executive director. The form must contain all information required by the executive director before a request will be processed.

(b) The executive director shall establish procedures for expedited processing of requests for groundwater protection recommendation letters.

(c) The fee for expedited processing of a request for a groundwater protection recommendation letter is $75 and must be in the form of a check, money order, cashier's check, or electronic funds transfer made payable to the Texas Commission on Environmental Quality. The fee must be paid before the request will be processed.

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 March 26, 2004.

TRD-200402148

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 239-0348