30 TAC §7.126
The Texas Commission on Environmental Quality (commission)
adopts new §7.126
without change
to the
proposed text as published in the October 29, 2004 issue of the
Texas Register
(29 TexReg 10070), and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
Abandoned and/or deteriorated wells are a potential groundwater contamination
source that serve as conduits or channels for contamination to reach groundwater,
and larger diameter wells can also be hazardous to human and animal life.
The Sunset Advisory Commission Report (February 2002) on the Texas Department
of Licensing and Regulation (TDLR) highlighted the lack of manpower to find
and close abandoned wells as an issue needing attention. To provide additional
resources to find and to properly cap or plug abandoned and/or deteriorated
wells, Senate Bill 279, 78th Legislature, 2003, added to the Texas Occupations
Code, 1901.257. This section requires the commission and the TDLR to, by rule,
adopt or revise a joint memorandum of understanding (MOU) to coordinate efforts
of the TDLR, the field operations staff of the commission, and groundwater
conservation districts (GCDs), relating to investigative procedures for referrals
of complaints regarding abandoned and/or deteriorated wells. The bill also
requires each GCD in which an abandoned and/or deteriorated well is located
to join the MOU adopted by the commission and the TDLR and provides that GCDs
may enforce compliance with statutes relating to the plugging of abandoned
and/or deteriorated wells within their boundaries. This rulemaking is an adoption
by reference of the complete text of the adopted MOU that was published in
the "Adopted Rules" portion of the January 28, 2005, issue of the
Texas Register
by the TDLR as 16 TAC §76.1011 (Memorandum of Understanding
between the Texas Department of Licensing and Regulation and the Texas Commission
on Environmental Quality).
SECTION DISCUSSION
New §7.126 is an adoption by reference of the MOU adopted by the TDLR
as 16 TAC §76.1011. A description of the adopted MOU in 16 TAC §76.1001
follows.
The MOU begins with a citation to the requirements under Texas Occupations
Code, §1901.257(b), which requires the MOU between the two agencies to
coordinate the efforts of the TDLR, the field operations staff of the commission,
and GCDs, relating to investigative procedures for referrals of complaints
regarding abandoned and/or deteriorated wells; under Texas Occupations Code, §1901.257(c),
which requires that any GCDs in which an abandoned and/or deteriorated well
is located shall join the MOU; and that a GCD may enforce compliance with
Texas Occupations Code, §1901.255, concerning abandoned and/or deteriorated
wells located in the boundaries of the district. The adopted TDLR rulemaking
also indicates that the two agencies have entered into the MOU, and that each
GCD in which an abandoned and/or deteriorated well is located is required
to join the MOU. Affected GCDs may join by submitting to TDLR a copy of the
adopted GCD board action indicating that the GCD has joined this MOU and understands
its responsibilities under the MOU and Texas Occupations Code, Chapter 1901.
The adopted TDLR rulemaking outlines the respective responsibilities of
each agency and of a GCD that joins the MOU.
TDLR Responsibilities:
The MOU requires that the TDLR will investigate abandoned and/or deteriorated
well complaints, including referrals received from the commission's field
operations staff, unless the complaint is being investigated by a GCD in coordination
with TDLR staff. TDLR has the responsibility to coordinate investigations
and enforcement efforts with the appropriate GCD for any complaints regarding
wells located within the boundaries of a GCD. When abandoned and/or deteriorated
wells are observed while TDLR staff are conducting field investigations inside
the boundaries of a GCD, the adopted TDLR rulemaking, which is the MOU, requires
that a reasonable effort to obtain the landowners' name, mailing address,
and latitude and longitude of the well be made, and that the information be
referred to the general manager of the appropriate GCD for investigation and
possible enforcement action. The MOU specifies that when an abandoned and/or
deteriorated well complaint is received, the TDLR will determine if the well
is located within a GCD's boundaries and provide a referral to the general
manager of the appropriate GCD for investigation and possible enforcement
action. TDLR will provide training and technical assistance to GCD staff and
the commission's field operations staff on field recognition of an abandoned
and/or deteriorated well. Finally, the adopted MOU contains a requirement
for the TDLR to annually report to the commission on the status of all complaints
provided to the TDLR under the MOU and the number of wells closed as a result
of the commission's abandoned and/or deteriorated well complaint referrals.
Commission Responsibilities:
The adopted MOU requires that when suspected abandoned and/or deteriorated
wells are observed by field operations staff while conducting field investigations,
information to allow for identification of the well, which may include the
landowners' name, physical address, and latitude and longitude of the well,
be referred to the TDLR. The adopted MOU requires the commission's field operations
staff to make a reasonable effort to obtain information needed for the identification
of any abandoned and/or deteriorated well. The adopted MOU also requires the
commission to provide to the TDLR an updated list of GCDs as they are confirmed,
including boundaries and the name and address of district contacts such as
the general manager.
GCD Responsibilities:
The adopted MOU requires that when a GCD receives a referral from the TDLR
of an abandoned and/or deteriorated well, the GCD must respond within 14 calendar
days informing the TDLR as to whether the GCD will investigate the referral.
The adopted MOU provides that after the GCD has been notified by the TDLR
or becomes aware of an abandoned and/or deteriorated well, the GCD may investigate
the complaint of an abandoned and/or deteriorated well within the boundaries
of the GCD and enforce compliance with Texas Occupations Code, 1901.255. The
adopted MOU requires a GCD, that performs an investigation related to an abandoned
and/or deteriorated well referred by the TDLR, to notify the TDLR regarding
the disposition of the investigation. The MOU provides that any GCD enforcement
under Texas Occupations Code, §1901.255 and §1901.256, may be coordinated
with the TDLR and that a GCD may communicate with the TDLR regarding any phase
of the investigation or enforcement action.
The adopted MOU contains a subsection related to referral and investigation
requirements which states that for the purposes of the MOU, a "referral" shall
constitute information gathered, compiled, and forwarded to the TDLR. Written
referrals via e-mail or letter shall utilize the appropriate form, provided
by the TDLR, and document information on the abandoned and/or deteriorated
well, which may include the name of the landowner possessing the abandoned
and/or deteriorated well, the physical address of the landowner, the latitude
and longitude of the abandoned and/or deteriorated well, and if possible,
a photograph of the well. The adopted MOU requires that following the receipt
of a referral from the commission, the TDLR will begin landowner notification
procedures or follow up investigation or, if the well is inside the boundaries
of a GCD, provide a referral to the general manager of the corresponding GCD
for investigation and possible enforcement action to assure compliance with
Texas Occupations Code, §1901.255.
The term of the MOU is from the date both the TDLR and the commission adopt
the MOU by rule. The MOU provides that the commission or the TDLR may, for
any reason, terminate the MOU upon 30 days' notice to the other agency. The
MOU also contains a severability statement that should any provision of the
MOU be held to be null, void, or for any reason without force or effect, such
provision shall be construed as severable from the remainder of this document
and shall not affect the validity of all other provisions, which shall remain
in full force and effect. The MOU may be amended through rulemaking at any
time by mutual consent of the commission and the TDLR.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule." Furthermore, it does not meet
any of the four applicability requirements listed in Texas Government Code, §2001.0225(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, 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. This rulemaking is
to adopt an MOU with the TDLR that will assist the TDLR in plugging abandoned
and/or deteriorated wells. The specific intent of the MOU is to coordinate
efforts between the commission, the TDLR, and GCDs relating to referrals of
complaints regarding abandoned and/or deteriorated wells. The MOU will not
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.
In addition, the MOU does not exceed a standard set by federal law, exceed
an express requirement of state law, exceed a requirement of a delegation
agreement, or adopt a rule solely under the general powers of the agency.
The MOU does not exceed a standard set by federal law because coordination
of efforts to facilitate the closure of abandoned and/or deteriorated wells
is not a federal program. This adoption does not exceed an express requirement
of state law because it is required by Texas Occupations Code, §1901.257.
This adoption does not exceed a requirement of a delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program. This adoption does not adopt a rule
solely under the general powers of the agency, but rather under a specific
state law. Finally, this rulemaking is not being adopted on an emergency basis
to protect the environment or to reduce risks to human health from environmental
exposure.
TAKINGS IMPACT ASSESSMENT
The commission assessed the takings impact for the MOU in accordance with
Texas Government Code, §2007.043. The commission evaluated the rule and
performed an assessment of whether the rule constitutes a takings under Texas
Government Code, Chapter 2007. The specific purpose of the MOU, as required
by Texas Occupations Code, §1901.257, is to coordinate efforts between
the commission, the TDLR, and GCDs relating to referrals of complaints regarding
abandoned and/or deteriorated wells.
Promulgation and enforcement of the rule would be neither a statutory nor
a constitutional taking of private real property. Specifically, the MOU does
not affect a landowner's rights in private real property because this rulemaking
does not burden nor restrict or limit the owner's right to property or reduce
its value by 25% or more beyond that which would otherwise exist in the absence
of the MOU. The MOU merely sets out the requirements of the commission in
referring complaints of abandoned and/or deteriorated wells to the TDLR. This
act by the commission does not burden, restrict, or limit property rights
or reduce the value of land by 25% or more.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking 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 the rule
is consistent with CMP goals and policies because the rulemaking relates only
to groundwater issues, which are not subject to the CMP. The rulemaking will
not have direct or significant adverse effect on any coastal natural resource
area; the rulemaking will not have a substantive effect on commission actions
subject to the CMP; and promulgation and enforcement of the rule will not
exceed any standard identified in the applicable CMP goals and policies.
PUBLIC COMMENT
No public comment was received on the proposed rule nor on the proposal
by TDLR that was published concurrently.
STATUTORY AUTHORITY
The new section is adopted under Texas Occupations Code, §1901.257,
which requires the commission to enter into an MOU with the TDLR and GCDs
relating to investigative procedures for referrals of complaints regarding
abandoned and/or deteriorated wells. Additionally, the new section is adopted
under Texas Water Code, §5.104, which authorizes the commission to enter
into an MOU with any other state agency but requires the MOU to be adopted
by rule.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 24, 2005.
TRD-200500851
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: March 16, 2005
Proposal publication date: October 29, 2004
For further information, please call: (512) 239-6087