30 TAC §§322.1 - 322.6
The Texas Natural Resource Conservation Commission (TNRCC
or commission) adopts the repeal of Chapter 322, Community Wastewater Planning,
which includes §322.1, Definitions; §322.2, Scope and Applicability; §322.3,
Municipality Request for Implementation of a Regional Plan; §322.4, Application
Requirements; §322.5, Notification; and §322.6, Commission Consideration
of Regional Plans. The purpose of the repeal is to remove unnecessary and
unused rules. The proposed repeal was published in the May 4, 2001 issue of
the
Texas Register
(26 TexReg 3376).
The commission is also adopting, in concurrent action, the rules review
of Chapter 322 as required by Texas Government Code, §2001.039, and the
General Appropriations Act, Article IX, §9-10.13, 76th Legislature, 1999.
The adopted rules review can be found in the Review of Agency Rules section
of this issue of the
Texas Register
.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEALS
The commission's review of Chapter 322 revealed that the rules in this
chapter have not proven to be an effective mechanism for promoting regionalization.
Chapter 322 was originally adopted in response to a request from the City
of Houston to assist in implementing its long-term wastewater regional plan.
In the years since its adoption in 1992, neither the City of Houston, nor
any other municipality has asked the TNRCC to use the authority under this
chapter.
The commission is committed to promoting the development and use of regional
and area-wide wastewater systems as required by the Texas Water Code (TWC);
however, it believes these rules are unnecessary because there are other more
effective mechanisms for promoting regionalization already in place. For example,
in accordance with TWC, §26.027, and 30 TAC Chapter 305, the TNRCC executive
director has revised the wastewater permit application to require applicants
to submit detailed explanations regarding whether there is a wastewater treatment
and collection system, within three miles of the area to be serviced by the
proposed facility, that is willing and able to service the area and, if so,
to submit an economic justification as to why the applicant is pursuing a
permit rather than connecting to the existing system. Furthermore, TWC, Chapter
13, Subchapter G, Certificates of Convenience and Necessity, allows districts
to apply for certificates of convenience and necessity (CCNs), although districts
are not required to obtain such a certificate. The commission has adopted
a detailed policy statement and rules that address regionalization through
the CCN process (
see
30 TAC §291.102(b),
effective October 19, 2000). Regionalization for districts and other entities
is available through this process, as well as through the process set forth
in TWC, Chapter 26, Subchapter C, Regional and Area-wide Systems, to promote
regional and area-wide waste collection, treatment, and disposal systems.
For these reasons, rather than readopt unnecessary and unused rules, the commission
adopts the repeal of Chapter 322.
SECTION BY SECTION DISCUSSION
Section 322.1, Definitions; §322.2, Scope and Applicability; §322.3,
Municipality Request for Implementation of a Regional Plan; §322.4, Application
Requirements; §322.5, Notification; and §322.6, Commission Consideration
of Regional Plans are repealed because the rules are unnecessary and unused.
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 the repeal of Chapter
322 will not result in a rule which meets 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. Because the specific intent of the adopted rulemaking is to
repeal unnecessary and unused rules, and does not add regulatory requirements
to existing rules, the rulemaking is not anticipated to have an adverse material
effect on 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, this repeal is not intended to protect the environment
or reduce risks to human health from environmental exposure. Therefore, this
rulemaking does not meet the definition of a "major environmental rule." In
addition, §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 rulemaking is adopted
specifically to repeal unnecessary and unused rules and does not meet any
of these four criteria of a "major environmental rule." The commission invited
public comment on the draft regulatory impact analysis determination, and
no comments were received.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted repeals and performed a final assessment
of whether the repeals constitute a taking under Texas Government Code, Chapter
2007. The following is a summary of that assessment. The specific purpose
of the rulemaking is to repeal Chapter 322 because the rules are unnecessary
and unused. The adopted repeals do not affect private real property, restrict
or limit the owner's right to property that otherwise would exist in the absence
of the rulemaking, or cause a reduction in the market value of private real
property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that it does affect an
action or authorization identified in Coastal Coordination Act Implementation
Rules, 31 TAC §505.11, because the Chapter 322 rules concern commission
consideration of regional plans when evaluating domestic wastewater discharge
permit applications. Therefore, applicable goals and policies of the Texas
Coastal Management Program (CMP) were considered during the rulemaking process.
The commission reviewed the repeal for consistency with the CMP goals and
policies in accordance with the regulations of the Coastal Coordination Council
and determined that the rulemaking is consistent with the goals and policies
of the CMP. Because this adoption of the repeal of Chapter 322 repeals unnecessary
and unused rules, it does not have direct or significant adverse effect on
any coastal natural resource areas, nor does the rulemaking have a substantive
effect on commission actions subject to the CMP.
HEARING AND COMMENTERS
The public comment period closed on June 4, 2001, and no comments were
received. A public hearing was not held.
STATUTORY AUTHORITY
The repeals are adopted under TWC, §5.102, which provides the commission
with the general powers to carry out its duties under TWC, and §5.103,
which provides the commission with the authority to adopt any rules necessary
to carry out the powers and the duties under the provisions of TWC and other
laws of this state. The repeals are adopted as a result of a rules review
done in accordance with the requirements of Texas Government Code, §2001.039,
and in accordance with the requirements of the General Appropriations Act,
Article IX, §9-10.13, 76th Legislature, 1999, which require state agencies
to review and consider for readoption each of their rules every four years.
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 July 12, 2001.
TRD-200104001
Ramon Dasch
Acting Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: August 1, 2001
Proposal publication date: May 4, 2001
For further information, please call: (512) 239-5017