The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts amendments to §331.2, Definitions; §331.7, Permit Required; §331.9, Injection Authorized by Rule; §331.10, Inventory of Wells Authorized by Rule; §331.11, Classification of Injection Wells; §331.12, Conversion of Wells; §331.82, Construction Requirements; §331.131, Applicability; §331.132, Construction Standards; and §331.133, Closure Standards for Injection Wells. The commission also adopts new §331.8, Prohibition of Motor Vehicle Waste Disposal Wells and Large Capacity Cesspools; §331.135, Construction Standards for Large Capacity Septic Systems; §331.136, Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells; and §331.137, Permits for Motor Vehicle Waste Disposal Wells. The commission withdraws §331.138, Monitoring Requirements for Motor Vehicle Waste Disposal Wells. Sections 331.7, 331.8, 331.9, 331.10, 331.11, 331.82, 331.132, 331.133, 331.136, and 331.137 are adopted with changes to the proposed text as published in the January 26, 2001 issue of the Texas Register (26 TexReg 926). Sections 331.2, 331.12, 331.131, and 331.135, are adopted without changes and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

Underground injection wells are regulated under the authority of Part C of the federal Safe Drinking Water Act (SDWA or the Act) (42 United States Code (USC), 300h et seq.). Part C mandates the regulation of underground injection of fluids through wells. Section 1421 of the Act requires the United States Environmental Protection Agency (EPA) to propose and promulgate regulations specifying minimum requirements for state programs to prevent underground injection that endangers drinking water sources. The EPA entered into a consent decree with the Sierra Club on August 31, 1994, subsequently modified on January 28, 1997, requiring the EPA to complete the promulgation of regulations for high risk Class V wells to prevent underground injection that endangers drinking water. Class V wells are generally shallow wells used to inject nonhazardous fluids into or above formations that contain underground sources of drinking water (USDW). The EPA has promulgated a final rule, Underground Injection Control Regulations for Class V Injection Wells, in the December 7, 1999 issue of the Federal Register (64 FR 68546). The new federal rule provisions are in Title 40 Code of Federal Regulations (CFR) Part 144, Underground Injection Control Program, and Part 146, Underground Injection Control Program: Criteria and Standards.

The new federal rules primarily address two types of Class V injection wells that have high potential for endangering USDWs: large capacity cesspools and motor vehicle waste disposal wells. The EPA's rulemaking links the Class V Underground Injection Control (UIC) Program and the State Drinking Water Source Assessment and Protection Program for motor vehicle waste disposal wells. Under the new federal rules, subsurface fluid distribution system and improved sinkhole are defined as Class V injection wells and subject to these rules. In addition, construction of new large capacity cesspools and motor vehicle waste disposal wells was banned by the federal rules as of April 5, 2000. Under the EPA's rulemaking, all existing motor vehicle waste disposal wells in a groundwater protection area must close or obtain a permit within one year of the designation of the groundwater protection area, but no later than by January 1, 2005 (40 CFR §144.87(b)). Groundwater protection areas are delineated under the Drinking Water Source Assessment and Protection Program for source water protection areas for community or non-transient non-community water systems that use groundwater as a source of drinking water. The EPA's rulemaking also provides that states may delineate other sensitive groundwater areas for groundwater areas that are critical for public health protection because of hydrogeologic and other features that would cause USDWs to be vulnerable to contamination from injection wells. The EPA's rulemaking requires the closing of all other motor vehicle waste disposal wells in other sensitive groundwater areas, if the state delineates these areas. If the state does not delineate other sensitive groundwater areas, the owners or operators must close all other wells by January 1, 2007, unless the owner or operator of the well obtains a permit or converts the well (40 CFR §144.87).

Options for motor vehicle waste disposal well owners offered in the new federal rules are: 1) apply for a permit (40 CFR §144.84); 2) get an extension of the closure compliance date in groundwater protection areas for up to one year, if the most efficient compliance option is to route the waste to a sanitary sewer or to install a new treatment technology (40 CFR §144.87(b)); 3) convert the motor vehicle waste disposal well to another type of Class V well if all motor vehicle fluids are segregated by physical barriers and are not allowed to enter the well, and injection of motor vehicle waste is unlikely based on a facility's compliance history and records showing proper waste disposal (40 CFR §144.89(b)); or 4) close the well. A motor vehicle waste disposal well is defined in the federal rules as a well which currently receives or has ever received motor vehicle waste. The federal rules further state that if a motor vehicle waste disposal well owner or operator applies for a permit, the disposed waste must meet the primary maximum contaminant levels (MCLs) for drinking water, and other health-based standards at the point of injection. Additionally, the owner or operator must follow best management practices and monitor the injectate (40 CFR Part 144, Table 2). The federal rules also clarified plugging and abandonment requirements for Class IV and V wells, and adopted new and amended definitions.

To demonstrate environmental need, the EPA cited evidence in its rulemaking that fluids released in motor vehicle waste disposal wells commonly exceed primary MCLs for drinking water, and that these wells have been linked with contamination of USDWs. Data provided by the EPA indicates that fluids being injected may exceed health-based limits for contaminant levels in water by ten to 100 times. The data also demonstrates that contaminants known to be associated with motor vehicle waste disposal wells occur nationwide in public water systems. (64 FR 68548).

The EPA is banning large capacity cesspools because these have a high potential to contaminate USDWs. The effluent released from cesspools frequently exceeds drinking water MCLs for nitrates, total suspended solids, and coliform bacteria; and may contain other constituents of concern such as phosphates, chlorides, grease, viruses, and industrial chemicals such as trichloroethane and methylene chloride. Pathogens in untreated sanitary waste released into large capacity cesspools could contaminate water supply sources and pose a serious health risk with a single exposure (64 FR 68551). Also, the use of large capacity cesspools is recognized as an inferior method of disposing of waste that can be remedied by the installation of a septic system (64 FR 68553). Prior to this federal rulemaking, the commission banned and continues to ban cesspools in §285.3 of this title (relating to On-Site Sewage Facilities). New §331.8 will further clarify the existing ban on large capacity cesspools.

Section 1422 of the SDWA provides that states may apply to the EPA for primary enforcement responsibility to administer the federal UIC Program. The State of Texas has applied for and been approved by the EPA to administer the federal UIC Program in this state since January 6, 1982. The commission is, therefore, obligated to maintain rules at least as stringent as the federal rules to retain federal authorization to implement the UIC Program in Texas.

In Texas, the UIC Program is implemented under Texas Water Code (TWC), Chapter 27, Injection Wells, and the commission's rules, 30 TAC Chapter 331, Underground Injection Control. The new and amended federal rule requirements are incorporated into Chapter 331, Subchapter A, General Provisions, and Subchapter H, Standards for Class V Wells.

The main purpose of the commission's rulemaking is to implement these new federal rules. The commission is adopting new rules to require all existing motor vehicle waste disposal wells in groundwater protection areas to close or obtain a permit within one year of the date the groundwater protection areas are identified by the commission, or by January 1, 2005, whichever occurs earlier. This is in compliance with new 40 CFR §144.87(b). Additionally, upon the effective date of these rules, the commission prohibits the construction of new motor vehicle waste disposal wells. Because there are no currently inventoried (registered) motor vehicle waste disposal wells in the state and only a small number are believed to exist, the commission decided not to designate other sensitive groundwater areas (as allowed by the federal rules) and instead, is adopting these rules to require all existing motor vehicle waste disposal wells outside of groundwater protection areas to close or obtain a permit. Therefore, owners and operators of all motor vehicle waste disposal wells in areas other than groundwater protection areas must close the wells or obtain a permit by January 1, 2007. The commission determined that this will provide consistent and equitable regulation throughout the state, and will not require the commitment of additional resources to designate other sensitive groundwater areas. This decision to apply the rules statewide does not mean the commission determined that the entire state is a sensitive groundwater area. The phasing in of these deadlines is intended to give any owners of motor vehicle waste disposal wells the most time possible to close these wells. The commission solicited comments on the proposal to apply the rules statewide rather than designating other sensitive groundwater areas. No comments were received on this issue. Therefore, the commission adopts these rules, as proposed, requiring owners and operators of all motor vehicle waste disposal wells in areas other than groundwater protection areas to close the wells or obtain a permit by January 1, 2007.

The commission determined that the cost of complying with the options of obtaining a permit and meeting primary MCLs for drinking water at the point of injection for motor vehicle waste disposal wells, or installing a new on-site treatment process, would most likely not be cost effective for a majority of the well owners or operators. Recycling or off-site disposal of motor vehicle waste is anticipated to be more cost effective than these options. No public comments were received on whether the commission should provide owners and operators the option to obtain a permit. Nevertheless, the commission has decided to retain the permit option in the rules.

The adopted rules include specific definitions of large capacity cesspools, septic systems, subsurface fluid distribution systems, and improved sinkholes to clarify their status as Class V injection wells. Regulations for temporary injection points are adopted to reflect advances in technology such as the current use of push point technology for the delivery of fluids into or above a USDW. The adopted amendments also clarify that the Class V wells listed in TWC, §32.001(8) shall be installed by a licensed water well driller. In addition, amendments are adopted to the construction and closure sections of the rules because they include the types of Class V injection wells that are the primary focus of the new federal rules, and the commission wants to update the construction and closure methods to reflect recent advances in technology. In addition to changes to implement the federal rules, these rules incorporate some minor clarifications and updates.

SECTION BY SECTION DISCUSSION

Subchapter A: General Provisions

Section 331.2, Definitions, is adopted to add the following new definitions: cesspool, drywell, groundwater protection area, improved sinkhole, point of injection, sanitary waste, septic system, and subsurface fluid distribution system. Section 331.2 also is adopted to amend the definition of "well" for compatibility with new 40 CFR §144.3. In addition, the commission adopts new definitions for large capacity cesspool, large capacity septic system, motor vehicle waste disposal well, temporary injection point, and well injection.

The definition for large capacity septic system found in §331.2(50) is "A septic system that is designed for a flow of greater than 5,000 gallons per day." In the federal rules, a large capacity cesspool is one which receives sanitary waste and serves more than 20 persons a day. The commission believes a cesspool capacity of 5,000 gallons per day is equivalent to a cesspool that serves 20 persons per day. The definition of large capacity septic system is not in the federal rules; however, the commission is adopting this definition to provide consistency with Chapter 285 of this title.

The new definition for motor vehicle waste disposal well is derived from new 40 CFR §144.81(16) and is adopted to clarify that wells which receive or have ever received motor vehicle waste are Class V injection wells. The new definition of temporary injection point is being adopted to keep the state rules up-to-date with push point injection technology used in remediation of groundwater. The new definition of well injection is adopted to simply state that well injection means the subsurface emplacement of fluids through a well. These definitions are being added and/or amended for compatibility with the federal rules located at 40 CFR §144.3.

The terms "improved sinkhole" and "subsurface fluid distribution system" are also defined under 40 CFR §144.3 as types of injection wells regulated under the UIC Program. These adopted definitions codify the EPA's interpretation that the intentional disposal of fluids in natural depressions, open fractures, and crevices (such as those commonly associated with cooling of lava flows or weathering of limestone), and the disposal of fluids through shallow horizontal distribution systems fit within the statutory definition of underground injection. Because improved sinkholes and subsurface fluid distribution systems are considered Class V wells, owners or operators of these wells must comply with the inventory requirements of this chapter. The definition of groundwater protection area is a geographic area near and/or surrounding community and non-transient, non-community water systems that use groundwater as a source of drinking water. Motor vehicle waste disposal wells in these areas are subject to earlier closure or permitting requirements. In compliance with the new federal rules, the definition of well is amended to clarify that a well includes both improved sinkholes and subsurface fluid distribution systems. Where necessary, the definitions in the section have been renumbered to accommodate the addition of the new definitions.

The adopted new definitions for cesspool, drywell, point of injection, sanitary waste and septic system are derived from the new federal definitions in 40 CFR §144.3.

Adopted new §331.7(c), Permit Required, clarifies that the owner or operator of large capacity septic systems, or septic systems which accept industrial waste, must obtain a wastewater discharge permit in addition to the requirements of this chapter. Large capacity septic systems are currently regulated by the commission under TWC, Chapter 26, and 30 TAC Chapter 305 of this title (relating to Consolidated Permits), and must be inventoried by submitting the information required under §331.10 of this title (relating to Inventory of Wells Authorized by Rule).

Adopted new §331.8, Prohibition of Motor Vehicle Waste Disposal Wells and Large Capacity Cesspools, implements the federal requirement under 40 CFR §144.87. Adopted new §331.8(a) implements a ban on the construction of all new motor vehicle waste disposal wells and large capacity cesspools. The construction of these two types of wells has been prohibited by the federal rules since April 5, 2000. Adopted new §331.8(b) specifies that the owner or operator of an existing motor vehicle waste disposal well located in a groundwater protection area must close the well within one year of the designation of the groundwater protection area, or by January 1, 2005, whichever occurs earlier, or must apply for a UIC Class V permit or extension prior to the closure date. This subsection also describes well permitting and closure procedures and requirements. If the most efficient compliance option is connection to a sanitary sewer or installation of new treatment technology, adopted §331.8(b)(1) establishes the procedure and requirements for applying for an extension from the closure date for one year, as provided in 40 CFR §144.87(b)(2). Adopted §331.8(b)(2) specifies that to continue operating during an extension, the owner or operator must ensure that the injectate meets primary MCLs for drinking water at 40 CFR Part 141, and other health- based standards at the point of injection. Since the commission is not adopting the option of identifying "other sensitive groundwater areas," adopted §331.8(c) establishes that the owner or operator of an existing motor vehicle waste disposal well in areas of the state other than groundwater protection areas must close the well by January 1, 2007, apply for a Class V UIC permit prior to January 1, 2007, or convert the well so it is not receiving motor vehicle waste. Adopted new §331.8(d) specifies that the owner or operator of an existing motor vehicle waste disposal well must close the well in accordance with closure standards specified in new §331.136 of this title (relating to Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells). New §331.8(e) is added since the proposed rules were published and is adopted to clarify that owners or operators must close all existing large capacity cesspools, in accordance with closure standards in §331.136 of this title (relating to Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells).

Adopted §331.9, Injection Authorized by Rule, is amended to update the cross-reference to §331.133 of this title (relating to Closure Standards), and §331.136 of this title. Section 331.9(b) is also adopted to require that Class V wells used to dispose of greater than 5,000 gallons per day of sewage or sewage effluent must be authorized by a wastewater discharge permit. The amount of effluent is increased from 1,000 gallons per day to greater than 5,000 gallons per day for consistency with other commission rules and to be equivalent to federal rules where the capacity is specified as greater than 20 persons per day in 40 CFR §144.81(9).

Adopted §331.10(a) is amended to specify that the owner or operator and not the driller of the Class V well (except for those wells listed under subsection (b) of this section), must submit an inventory for each facility prior to construction, or within one year of January 1, 1982, if the well existed on that date. Adopted §331.10(b) states that drillers of closed loop and air conditioning return flow injection wells must submit an inventory form provided by the executive director as required under §331.132(b)(3) of this title (relating to Construction Standards). Minor grammatical changes are also adopted in this subsection. New §331.10(d) is adopted to require that inventory information for all Class V wells, with the exception of closed loop and air conditioning return flow wells, be submitted prior to construction, conversion, or use of the well. Inventory information for closed loop and air conditioning return flow wells may be submitted after construction of these types of wells.

Adopted new §331.10(e) specifies that owners and operators of existing subsurface fluid distribution systems and improved sinkholes must submit the inventory information within one year of the effective date of these rules. All new subsurface fluid distribution systems and improved sinkholes must comply with subsection (d) of this section.

Adopted new §331.11(a)(1)(C) is adopted to specify that radioactive waste disposal wells which inject fluids below the lowermost formation containing a USDW within 1/4 mile of the well bore are classified as Class I injection wells. This requirement is added to implement the new federal rules at 40 CFR §144.6(a)(3). These disposal wells are primarily associated with in situ uranium mining operations in South Texas and are used for disposal of uranium byproduct as defined in Texas Health and Safety Code, §401.003(3)(B). These wells have historically been permitted as Class I injection wells, and are identical to other Class I injection wells in terms of their design, the nature of injected fluids, and their potential to endanger USDWs; therefore, they warrant the same level of control as other Class I injection wells. This classification change does not mean that the Class II injection wells permitted by the Railroad Commission of Texas (RCT) used to inject oil and gas naturally-occurring radioactive material (NORM waste) are reclassified as Class I wells. These wells remain under RCT jurisdiction as Class II wells. However, any wells used to inject non-oil and gas NORM waste for disposal are Class I wells under TNRCC jurisdiction.

Adopted §331.11(a)(4) is amended to improve readability by moving the second sentence in the paragraph to the beginning of the paragraph. In response to comments on the proposed rules, §331.11(a)(4) has been modified to delete the list of wells under RCT jurisdiction because that list was incomplete and may change. Instead, new language is adopted which states that "Except for Class V wells within the jurisdiction of the Railroad Commission of Texas, all Class V injection wells are within the jurisdiction of the commission and include, but are not limited to: ..." Section 331.11(a)(4)(C) is amended to clarify that large capacity cesspools which are Class V wells are those cesspools which receive greater than 5,000 gallons of waste per day. Section 331.11(a)(4)(F) is amended to correct the spelling of drywell. Section 331.11(a)(4)(J) is amended to clarify that septic systems designed to inject greater than 5,000 gallons per day of waste or effluent are classified as Class V wells. Since the proposed rules were published, clauses (i) and (ii) have been deleted for clarification and to eliminate duplication with §331.11(a)(4)(C). Section 331.11(a)(4)(K), (L), and (O) are amended for punctuation. New §331.11(a)(4)(M) and (N) list motor vehicle waste disposal wells and improved sinkholes as types of Class V injection wells in accordance with the federal rules at 40 CFR §144.1 and §144.81. New §331.11(a)(4)(O) lists aquifer remediation wells, temporary injection points, and subsurface fluid distribution systems as additional types of Class V wells. Since the proposed rules were published, adopted new §331.11(a)(4)(P) has been added to clarify that subsurface fluid distribution systems are Class V wells.

Adopted new §331.12(a)(4) clarifies that prior to converting a Class V motor vehicle waste disposal well, the owner or operator must inventory the well with the executive director, as required in §331.10 of this title (relating to Inventory of Wells Authorized by Rule), and comply with the conversion requirements specified in §331.12(c). Adopted new §331.12(c) provides the conversion requirements for motor vehicle waste disposal wells in the limited cases when conversion to another type of Class V well is allowed. Adopted new §331.12(c)(1) states that the use of a semi- permanent plug is not sufficient to segregate waste; §331.12(c)(2) states the conditions under which the executive director may approve a Class V well conversion. Adopted new §331.12(c)(2)(A) specifies that the executive director may approve the conversion only if the well is inventoried. Adopted new §331.12(c)(2)(B) specifies that the executive director may approve the conversion only if all motor vehicle fluids are segregated by physical barriers and are not allowed to enter the well. Adopted new §331.12(c)(2)(C) limits the conversion of Class V wells to those circumstances where the future injection of motor vehicle waste is unlikely based on a facility's compliance history and records showing proper waste disposal.

Subchapter E: Standards for Class III Wells

Section 331.82(b) and (g), Construction Requirements, is amended to change "commission" to "executive director" to distinguish that the actions are actually performed by the executive director and not the commissioners. This amendment is not related to the new federal rules.

Subchapter H: Standards for Class V Wells

Adopted §331.131, Applicability, is amended to delete the word "new." This amendment clarifies that rules in Subchapter H are applicable to "existing" as> rules.

Adopted §331.132(a), makes explicit the requirement that the types of injection wells listed in TWC, §32.001(8) shall be installed by a licensed water well driller. Section 331.132(b)(1) is adopted to specify that inventory information for Class V wells required by §331.10(a) of this title shall be submitted for review and approval prior to construction of the well. Additionally, subsection (b)(1) is adopted to require that inventory information for large capacity septic systems be submitted as part of the wastewater discharge permit application. Section 331.132(b)(2) exempts large capacity septic systems, subsurface fluid distribution systems, air conditioning return flow wells, closed loop injection wells, improved sinkholes, and temporary injection points from the requirement to submit the Texas Department of Licensing and Regulation state well report form to the executive director within 30 days of construction of the well. New §331.132(b)(5) requires the owner or operator of large capacity septic systems, subsurface fluid distribution systems, and improved sinkholes to report construction by submitting the reporting form provided by the executive director within 30 days after construction of the well is completed. Section 331.132(d)(1) is adopted to specify that surface completion requirements of a concrete slab or sealing block is required for all injection wells except temporary injection points, subsurface fluid distribution systems, improved sinkholes, and large capacity septic systems. Section 331.132(d)(2) has been changed since the proposed rules were published to clarify that the casing requirements only apply to wells that use casing. New 331.132(d)(4) is adopted to implement the requirement that temporary injection points shall be completed in such a manner as to prevent the movement of surface fluids into a USDW. Section 331.132(f) has been modified since the proposed rules were published and states that improved sinkholes, as well as closed loop injection wells and air conditioning return flow wells, are exempt from the completion standards in this section. New §331.132(h) is adopted to specify that sampling shall be done on a Class V injection well from the point of injection, which is the last accessible sampling point prior to the waste fluids being released into the subsurface environment, or as specified in a permit. This requirement is to ensure that any sampling is representative of the waste fluid being released and is consistent with the sampling requirement for permitted motor vehicle waste disposal wells in 40 CFR §144.88(b), Table 2.

Adopted §331.133, Closure Standards, is amended to change the title of the section to "Closure Standards for Injection Wells," and to provide that the closure standards specified in this section apply to all injection wells other than those specified. This is to distinguish these closure standards from the closure requirements for wells found in new §331.136 of this title. Section 331.133(a) has been modified since proposal to include a reference to §331.136, and to reference the Federal Register . The subsection is adopted to have consistent use of terminology; specifically, the term "close" is substituted for "plug or plugged." This subsection is also adopted to specify that the injection well must be closed in a manner that complies with §331.5 of this title (relating to Prevention of Pollution), 40 CFR §144.12 ("prohibition of movement of fluid into underground sources of drinking water," effective June 2, 1987), and disposal or other management of any contaminated soil, gravel, sludge, liquids, or other materials removed from or adjacent to the well must be in accordance with Chapter 350 of this title (relating to Texas Risk Reduction Program). New §331.133(e) is adopted to specify the proper closure technique for temporary injection points. This subsection accommodates the use of temporary injection points for remediation of groundwater. New §331.133(f) is adopted to specify the closure standards for improved sinkholes. The owner or operator must close the sinkhole in a manner that prohibits the movement of contaminated fluids into USDWs, in compliance with §331.5 of this title (relating to Prevention of Pollution), and 40 CFR §144.12 ("prohibition of movement of fluid into underground sources of drinking water," as amended through June 2, 1987 at 48 FR 20676); and to demonstrate that fluids released through the well will meet the primary MCLs for drinking water contained in 40 CFR Part 141, and other appropriate health-based standards at the point of injection.

Adopted new §331.135, Construction Standards for Large Capacity Septic Systems, provides appropriate regulatory standards for the construction of large capacity septic systems. Adopted §331.135(a) requires large capacity septic systems to be constructed in accordance with the terms of the wastewater discharge permit. Under adopted §331.135(b), during construction the movement of fluids which might contaminate a USDW or violate primary drinking water standards, or other health-based standards is prohibited. There were no construction standards previously specified in commission rules for these types of Class V injection wells.

Adopted new §331.136, Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells, provides appropriate regulatory standards for the closure of these types of Class V injection wells. Since the proposed rules were published, the name of this section was changed to add subsurface fluid distribution systems to the title. These adopted standards, in part, implement the federal requirements for closure of Class V wells found in 40 CFR §144.89. These standards ensure that wells are closed in a manner that prevents the movement of contaminated fluids into a USDW, which may cause a violation of the primary drinking water or other health-based standards, or adversely affect public health. Adopted new §331.136(a) specifies that owners or operators of motor vehicle waste disposal wells, large capacity septic systems, large capacity cesspools, subsurface fluid distribution systems, and drywells must comply with the standards set forth in this section. Adopted new §331.136(b) specifies that owners or operators of large capacity cesspools and motor vehicle waste disposal wells must submit a preclosure notice form provided by the executive director 30 days prior to closure. In addition, adopted new §331.136(c) specifies closure procedures and requirements for large capacity cesspools, large capacity septic systems, drywells, subsurface fluid distribution systems, and motor vehicle waste disposal wells. Adopted new §331.136(c)(1) specifies that the owner or operator must close the well in a manner that prohibits the movement of contaminated fluids into USDWs in compliance with §331.5 of this title (relating to Prevention of Pollution) and 40 CFR §144.12 ("prohibition of movement of fluid into underground sources of drinking water," as amended through June 2, 1987 at 48 FR 20676). Paragraph (2) specifies that the owner or operator must dispose or otherwise manage any contaminated soil, gravel, sludge, liquids, or other material removed from or adjacent to the well in accordance with Chapter 350 of the title (relating to Texas Risk Reduction Program), and all other applicable state, federal, and local regulations and requirements. Paragraph (3) specifies that the owner or operator must submit a closure report to the executive director within 60 days of closing the well.

Adopted new §331.137, Permit for Motor Vehicle Waste Disposal Wells, establishes the minimum requirements for a motor vehicle waste disposal well permit. Adopted new §331.137(1) establishes that owners or operators of motor vehicle waste disposal wells must demonstrate that fluids released in their wells meet the primary drinking water MCLs contained in 40 CFR Part 141 and other health-based standards at the point of injection. Adopted new §331.137(2) establishes that owners or operators must follow prescribed best management practices as specified in their permits. Adopted new §331.137(3) establishes that owners or operators are required to monitor the quality of their injectate and sludge both initially and on a continuing basis as specified in their permit to demonstrate compliance with MCLs at the point of injection.

Proposed new §331.138, Monitoring Requirements for Motor Vehicle Waste Disposal Wells, has been withdrawn because the commission determined that general monitoring requirements are specified in §331.137 of this title, and more specific monitoring requirements will be included in the individual permit as determined by the executive director on a case-by-case basis.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The intent of the rules is to protect the environment or reduce risks to human health from environmental exposure from contamination from large capacity cesspools and motor vehicle waste disposal wells. Cesspools had previously been banned in the state, but these rules adopt a provision clarifying this ban under the UIC Program. Because cesspools have already been banned and the commission has no inventory of registered motor vehicle waste disposal wells, the rules will not have a material adverse impact on the economy. Furthermore, the rulemaking does not meet any of the four applicability requirements listed in §2001.0225(a). Section 2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The adopted rulemaking does not exceed a standard set by federal law, an express requirement of state law, a requirement of a delegation agreement, nor adopt a rule solely under the general powers of the agency.

Chapter 27 of the TWC authorizes the commission to regulate injection wells and §27.019 authorizes the commission to adopt rules reasonably required for the regulation of injection wells. Section 330h(b)(1) of the federal SDWA requires that the EPA promulgate regulations for state underground injection programs containing minimum requirements for effective programs to prevent underground injection which endangers drinking water sources. The commission believes that the adopted rules do not exceed standards set by federal law. New federal requirements ban all new motor vehicle waste disposal wells and require existing motor vehicle waste disposal wells in groundwater protection areas or other sensitive groundwater areas to close or obtain a permit. The new federal requirement found in 40 CFR §144.87(c) provides: "States may also delineate other sensitive groundwater areas by January 1, 2004... If a state or EPA region fails to identify these additional sensitive groundwater areas by January 1, 2004, the new requirements of this rule will apply to all motor vehicle waste disposal wells in the state effective January 1, 2007..." Because the commission is choosing not to identify other sensitive groundwater areas, the requirements applicable to existing motor vehicle waste disposal wells must be implemented statewide by January 1, 2007. Under the adopted rules, all large capacity cesspools and new motor vehicle waste disposal wells are banned. Owners or operators of existing large capacity cesspools must close the cesspools under closure standards specified in these rules. Owners or operators of existing motor vehicle waste disposal wells must close the wells or apply for a permit.

The commission believes that the adopted rules do not exceed an express requirement of state law. Requirements for injection wells are found in TWC, §27.003, which provides that: "It is the policy of this state and the purpose of this chapter to maintain the quality of fresh water in the state to the extent consistent with the public health and welfare, the operation of existing industries, and the economic development of the state, to prevent underground injection that may pollute fresh water, and to require the use of all reasonable methods to implement this policy." However, TWC, Chapter 27 does not provide specific standards or requirements for large capacity cesspools or motor vehicle waste disposal wells. Therefore, the commission does not believe that an express requirement of state law has been exceeded in the adopted rules.

The commission has also determined that the adopted rules do not exceed a requirement of a delegation agreement or contract between the state and an agency of the federal government. The State of Texas has been delegated authority to administer the UIC Program in the state by the EPA under the federal SDWA. The SDWA requires the EPA to promulgate minimum requirements for effective state UIC Programs that prevent underground injection which endangers drinking water sources. The commission believes that the adopted rules do not exceed the new federal requirements for large capacity cesspools or motor vehicle waste disposal wells, nor exceed the requirements in the delegation agreement with the EPA for state authorization of the UIC Program.

The commission also believes that these rules are adopted under specific authority of the Injection Well Act, TWC, Chapter 27. Section 27.003 requires the use of all reasonable methods to implement the policy of the state to maintain the quality of fresh water in the state to the extent consistent with the public health and welfare, the operation of existing industries, and the economic development of the state, and to prevent underground injection that may pollute fresh water. Section 27.019 requires the commission to adopt rules reasonably required for the regulation of injection wells. These adopted rules implement requirements for certain types of Class V wells to prevent underground injection that may pollute fresh water.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's preliminary assessment indicates that Texas Government Code, Chapter 2007 does not apply to these adopted rules because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4). The State of Texas has received authorization from the EPA to administer the UIC Program in Texas. The SDWA, 42 USC §300h, requires that the administrator of the EPA promulgate regulations for state underground injection programs containing minimum requirements for delegated programs to prevent underground injection which endangers drinking water sources. The adopted rulemaking will provide consistency with new federal rules for two categories of Class V wells the EPA has determined to be a source of endangerment to drinking water.

Nevertheless, the commission further evaluated these adopted rules and performed a preliminary assessment of whether these adopted rules constitute a taking under Texas Government Code, Chapter 2007. The following is a summary of that evaluation and preliminary assessment. The primary purpose of these adopted rules is to implement federal requirements for large capacity cesspools and motor vehicle waste disposal wells. The adopted rules would substantially advance this purpose by banning new motor vehicle waste disposal wells and by requiring the owners and operators of existing motor vehicle waste disposal wells to close the wells or obtain a permit from the commission. Cesspools have already been banned in Texas.

Promulgation and enforcement of these adopted rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations 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 and reduce its value by 25% or more beyond which would otherwise exist in the absence of the regulations. In other words, these rules implement federal requirements for closure of motor vehicle waste disposal wells and large capacity cesspools, but because there are no inventoried motor vehicle waste disposal wells in the state and cesspools have already been banned, there will be no burden, restriction, or limitation on the owner's right to property. Additionally, a prohibition on such disposal wells and cesspools would not reduce property value by 25%.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The executive director reviewed the adopted rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), nor will they affect any action or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the CMP.

HEARING AND COMMENTERS

The commission held a public hearing on February 20, 2001; there were no commenters present at the hearing. The public comment period closed March 5, 2001. The following commenters submitted written comments: the RCT and the EPA.

RESPONSE TO COMMENTS

§331.11

The EPA commented that the proposed amendments to Chapter 331 do not contain equivalent language to 40 CFR §144.1(g)(1)(iii) that specifically includes wells injecting hazardous wastes under the scope of the UIC Program.

The commission disagrees with the comment and responds that §331.1 states that the chapter applies to all injection wells. Section 331.11(a)(1)(A) states that injection wells within the jurisdiction of the commission include Class I wells used by generators of hazardous waste, or owners or operators of hazardous waste facilities, other than Class IV wells. Section 331.1 and §331.11(a)(1)(A) when read together adequately provide that wells injecting hazardous waste are under the scope of the UICProgram. The commission believes that this language is equivalent to the federal language at 40 CFR §144.1(g)(1)(iii).

The EPA also commented that the proposed amendments to Chapter 331 do not contain equivalent language to 40 CFR §144.1(g)(2)(v) that specifically excludes from the UIC Program any dug hole, drilled hole, or bored shaft which is not used for the subsurface emplacement of fluids.

The commission disagrees with the comment and responds that §331.1 states that the chapter applies to all injection wells. Section 331.1 when read in conjunction with §331.2(97) which defines an injection well as "a well into which fluids are being injected" adequately clarifies that any hole or bored shaft not used for the subsurface emplacement of fluids is excluded from the UIC Program. The commission believes this language is equivalent to the federal language at 40 CFR §144.1(g)(2)(v).

The RCT commented that the proposed revision to §331.11(a)(4) is incorrect in that the proposed language limited the Class V wells within the jurisdiction of the RCT to wells used for in situ combustion of fossil fuels, recovery of geothermal energy to produce electricity, and geothermal wells used in heating and aquaculture. In addition to those listed types of Class V wells, the RCT commented that it has jurisdiction over Class V wells at groundwater remediation sites associated with oil and gas activities and fluid return wells at oilfield water supply operations. The RCT also stated that there may be other types of Class V wells associated with activities it regulates. The RCT suggested that §331.11(a)(4) should be changed to: "Except for wells associated with activities regulated by the Railroad Commission of Texas, Class V wells are under the jurisdiction of the commission and include, but are not limited to: etc."

The commission agrees with the commenter that the language in this section could be improved. The commission also agrees that there may be other wells under the RCT jurisdiction which are not listed, and the types of wells under the RCT jurisdiction may change over time necessitating another rule change to update the list. Therefore, the commission has adopted §331.11(a)(4) to read,"Except for Class V wells within the jurisdiction of the Railroad Commission of Texas, all Class V injection wells are within the jurisdiction of the commission and include, but are not limited to: ..."

Subchapter A. GENERAL PROVISIONS

The Texas Natural Resource Conservation Commission (commission) adopts amendments to Chapter 334, Subchapter C, Technical Standards, §334.54, Temporary Removal From Service; Subchapter J, Registration of Corrective Action Specialists and Project Managers for Product Storage Tank Remediation Projects, §334.460, Renewal of Certificate of Registration for Corrective Action Project Manager; and Subchapter K, Storage, Treatment, and Reuse Procedures For Petroleum- Substance Contaminated Soil, §334.503, Reuse of Petroleum-Substance Waste. Section 334.503 is adopted with changes to the proposed text as published in the April 20, 2001 issue of the Texas Register (26 TexReg 2945). Sections 334.54 and 334.460 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted rules will correct errors that were made in the major Chapter 334 rulemaking as published in the June 2, 2000 issue of the Texas Register (25 TexReg 5152), which culminated in a rule package that went into effect November 23, 2000. The corrections remove internal inconsistencies from each rule section at issue so that they will function as intended and remove confusion concerning the proper requirements under the rules.

SECTION BY SECTION DISCUSSION

Subchapter C. Technical Standards.

Adopted §334.54, Temporary Removal from Service is amended. At the proposal stage of the recent major Chapter 334 rulemaking, §334.54(d) and (e) was published correctly in the June 2, 2000 issue of the Texas Register (25 TexReg 5152). At the adoption stage, no public comment was received on this language and the commission intent was to adopt these rule subsections with the same language as at the proposal stage. While the fact that the language was not meant to change from proposal was reflected in the text of the adoption as published in the November 17, 2000 issue of the Texas Register (25 TexReg 11442), the actual rule text adopted at the commission's November 1, 2000 agenda was incorrect due to an administrative error. Language in §334.54(d)(1) - (3) that was to be deleted was instead maintained, and the proposed language for that same subsection was deleted. The current adopted amendment would correct this error, so §334.54(d)(1) will read, "All regulated substances have been removed as completely as possible by the use of commonly-employed and accepted industry procedures." Section 334.54(d)(2) will read, "Any residue from stored regulated substances which remains in the system (after the completion of the substance removal procedures under paragraph (1) of this subsection) shall not exceed a depth of 2.5 centimeters at the deepest point and shall not exceed 0.3% by weight of the system at full capacity." Section 334.54(d)(3) will read, "The volume or concentration of regulated substances remaining in the system would not pose an unreasonable risk to human health and safety or to the environment if a release occurs during the period when the system is temporarily out of service."

Correcting the errors in §334.54 restores the provisions which define the term "empty system" as it applies to temporarily out-of-service tanks. This should in turn reduce the likelihood of contamination because, without those provisions, excessive amounts of regulated substances or residues could leak into the environment after being left for extended periods in an unmonitored out-of-service tank. This contamination can have adverse effects on human health and safety through its entrance into public water supplies, private water wells, utility spaces, etc. Making the rule clear and enforceable concerning the term "empty system" should increase the compliance rate with the rule.

Subchapter J. Registration of Corrective Action Specialists and Project Managers for Product Storage Tank Remediation Projects.

Adopted §334.460, Renewal of Certificate of Registration for Corrective Action Specialist and Corrective Action Project Manager, is amended. Among the amendments made to this rule section during the recent Chapter 334 rulemaking were changes concerning a transition from a one-year to a two-year certificate renewal schedule. Section 334.460(a) contained language intended to explain how the transition period would work. Due to ambiguous sentence construction, there has been confusion concerning the last sentence in this subsection. Section 334.460(a) has been amended so that, in the last sentence, the word "issued" has been changed to "renewed"; the word "subchapter" has been changed to "section"; and the phrase "original date of issuance or two years from the" has been deleted, such that the final sentence will read, "Following this designated period, each certificate of registration renewed under this section shall expire two years from the last date of expiration." This change greatly clarifies the intent of the rule. Section 334.460(f)(2) has been amended to correct a typographical error in the second sentence in this paragraph, the number of days has been amended to read "30" rather than "60." This correction will make the paragraph consistent with the remainder of the rule section and thus clarify the section as a whole. Since the certificate is required by law for certain corrective action activities to be performed, it is vital to these contractors that there be a clear procedure for the timelines associated with license renewal. Correcting the errors will remove the internal inconsistency from the rule and thus ensure a predictable timeline. This also reduces the chances that a member of the public would hire such a contractor, only to find that his certificate was not in effect for part of the corrective action project (which could have implications for monetary reimbursements from the Petroleum Storage Tank Reimbursement Fund for the party hiring the contractor).

Subchapter K, Storage, Treatment, and Reuse Procedures For Petroleum-Substance Contaminated Soil.

Adopted §334.503, Reuse of Petroleum-Substance Waste, is amended. Section 334.503(c)(3)(E) concerns when it is appropriate for petroleum substance-waste to be used as fill and gives procedures for how this is determined. The current language could be read to give the mistaken impression that the subparagraph is speaking to a status of the waste called "clean" as something separate and apart from the appropriate use of the waste as fill. Consequently, to clarify this rule consistent with its intent, the phrase in the first sentence which reads, "will be considered clean, and" has been deleted. Correcting the error in this rule section should increase the compliance rate with the rule. Exposure to this waste may have adverse impacts on human health and safety, so it is vital that the proper procedures are followed for determining how this waste may be used. Administrative changes have been made from proposal to adoption for Texas Register purposes.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the adopted rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 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 adopted rules are not anticipated to 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 because the adopted rules are intended to simply correct errors from the Chapter 334 rulemaking that went into effect November 23, 2000. Correction of these errors removes internal inconsistencies from these rule sections and thus make them easier to read and understand.

TAKINGS IMPACT ASSESSMENT

The commission conducted a takings impact assessment for these adopted rules under Texas Government Code, §2007.043. The specific purpose of this rulemaking is simply to correct errors from the recently completed Chapter 334 rulemaking (which became effective November 23, 2000). Correction of these errors removes internal inconsistencies from these rule sections and thus make them easier to read and understand. This action does not create a burden on private real property, and does not burden, restrict, or limit an owner's right to property. The corrections in this rulemaking also will not be the cause of a reduction in market value of private real property, and do not constitute a takings under the Texas Government Code, Chapter 2007.

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 rulemaking will not have direct or significant adverse effect on any Coastal Natural Resource Areas, nor will the rulemaking have a substantive effect on commission actions subject to the CMP.

HEARINGS AND COMMENTERS

The public comment period closed on May 21, 2001 and no comments were received.

Subchapter C. TECHNICAL STANDARDS

Subchapter A. GENERAL PROVISIONS