Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 1.
PURPOSE OF RULES, GENERAL PROVISIONS
30 TAC §1.3, §1.4
The Texas Natural Resource Conservation Commission (commission
or agency) proposes amendments to §1.3 and §1.4. The commission's
name will change to the Texas Commission on Environmental Quality on September
1, 2002, and the proposed amendments reflect this change.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
During the 77th legislative session, the agency underwent the sunset review
process culminating in the enactment of House Bill (HB) 2912, which, among
other things, extended the term of the agency to September 1, 2013 and changed
its name to the Texas Commission on Environmental Quality.
House Bill 2912, §18.01(a), 77th Legislature, 2001, states that: "Effective
January 1, 2004: (1) the name of the Texas Natural Resource Conservation Commission
is changed to the Texas Commission on Environmental Quality, and all the powers,
duties, rights, and obligations of the Texas Natural Resource Conservation
Commission are the powers, duties, rights and obligations of the Texas Commission
on Environmental Quality;...."
House Bill 2912, §18.01(c) grants the commission latitude in phasing
in the name change. Section 18.01(c) provides: "The Texas Natural Resource
Conservation Commission shall adopt a timetable for phasing in the change
of the agency's name so as to minimize the fiscal impact of the name change.
Until January 1, 2004, to allow for phasing in the change of the agency's
name and in accordance with the timetable established as required by this
section, the agency may perform any act authorized by law for the Texas Natural
Resource Conservation Commission as the Texas Natural Resource Conservation
Commission or as the Texas Commission on Environmental Quality. Any act of
the Texas Natural Resource Conservation Commission acting as the Texas Commission
on Environmental Quality after the effective date of this Act and before January
1, 2004, is an act of the Texas Natural Resource Conservation Commission."
In accordance with a timetable adopted by the commission on November 9,
2001, formal, public phase in of the agency name change will begin September
1, 2002.
The current name of the agency appears in a number of the commission rules;
however, it is not feasible to change all these rules simultaneously to conform
with the new name. Rather, the commission will take a two-prong approach in
effectuating the name changes in its rules. First, the commission proposes
through this limited rulemaking to change key provisions of its rules, such
as the name on the seal and addresses of the agency and chief clerk in this
chapter and the definition of "commission" in 30 TAC Chapter 3 (being proposed
concurrently in this issue of the
Texas Register
), effective September 1, 2002. Secondly, the balance of the commission
rules in which the current name of the agency appears, or that of its predecessors
(Texas Water Commission and Texas Air Control Board), will be revised on a
chapter-by-chapter basis as rulemakings are convened to modify those chapters
for other reasons or as part of the quadrennial review of our rules in accordance
with Texas Government Code, §2001.039.
SECTION BY SECTION DISCUSSION
Section 1.3, Business Office and Mailing Address of the Agency, is proposed
to be amended in subsection (a) to add "Texas Commission on Environmental
Quality" to the agency mailing address, effective September 1, 2002. In subsection
(b) the name of the agency appearing in the chief clerk's address is proposed
to be amended to the Texas Commission on Environmental Quality, effective
September 1, 2002.
Section 1.4, Seal of the Commission, is proposed to be amended to change
the name of the agency to the Texas Commission on Environmental Quality, effective
September 1, 2002.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
determined that for the first five-year period the proposed rules are in effect,
there are anticipated to be no significant fiscal implications to units of
state or local government as a result of administration and enforcement of
the proposed rules.
This rulemaking is intended to implement certain provisions of HB 2912.
This bill changed the name of the commission to the Texas Commission on Environmental
Quality, effective January 1, 2004. In order to comply with the name change,
this rulemaking is intended to change the seal of the commission and the agency's
mailing address to reflect the new name, effective September 1, 2002.
The cost to the agency to comply with this rulemaking is not anticipated
to be significant. The proposed rulemaking only affects the agency. No other
units of state and local government should be affected by this proposal. The
commission does not anticipate significant fiscal implications due to implementation
of the proposed amendments by units of state and local government.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed rules are in effect, the public benefit anticipated from administration
of the proposed rules would be compliance with the terms of HB 2912 regarding
the change of the agency's name to the Texas Commission on Environmental Quality.
To comply with the name-change provision of HB 2912, this rulemaking is intended
to change the seal of the commission and the agency's mailing address to reflect
the new name, effective September 1, 2002.
The proposed rulemaking is intended to only affect the operations of the
agency by changing the seal of the commission and the agency's mailing address
to reflect the name change. No individuals or businesses should be significantly
affected by these changes; therefore, no significant costs are anticipated
to individuals and businesses due to implementation of this rulemaking.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There are anticipated to be no adverse fiscal implications to small or
micro-businesses as a result of the proposed amended sections, which are intended
to implement provisions of HB 2912 concerning the change of the agency's name
to the Texas Commission on Environmental Quality. To comply with the name-change
provision of HB 2912, this rulemaking is intended to change the seal of the
commission and the agency's mailing address to reflect the new name, effective
September 1, 2002.
The proposed rulemaking is intended to only affect the operations of the
agency by changing the seal of the commission and the agency's mailing address
to reflect the name change. No small or micro-businesses should be adversely
affected by these changes; therefore, no significant costs to small or micro-businesses
are anticipated due to implementation of this rulemaking.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has 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 rulemaking 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, 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 "major environmental rule" because the rulemaking
is not specifically intended to protect the environment or reduce risks to
human health from environmental exposure. This rulemaking merely proposes
to conform certain rules to state statutory requirements relating to the change
of the agency's name to the Texas Commission on Environmental Quality in accordance
with HB 2912. The commission invites public comment on the draft regulatory
impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed 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 the proposed rules because this is an action
that is reasonably taken to fulfill an obligation mandated by state law, which
is exempt under Texas Government Code, §2007.003(b)(4). The specific
purpose of the proposed rules is to modify certain chapters of the commission
rules to reflect the change of the agency's name to the Texas Commission on
Environmental Quality in accordance with HB 2912. Promulgation of the proposed
rules would be neither a statutory nor a constitutional taking of private
real property. Specifically, the subject proposed 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 that which would otherwise
exist in the absence of the regulations. In other words, no private property
will be affected in any way by these rules. There are no burdens imposed on
private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
rules are neither identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas
Coastal Management Program (CMP), nor will they affect any action/authorization
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11.
Therefore, the proposed rules are not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
2001-089-003-AD. Comments must be submitted by 5:00 p.m. on April 1, 2002.
For further information, please contact Auburn Mitchell, Office of Environmental
Policy, Analysis, and Assessment, (512) 239-1973.
STATUTORY AUTHORITY
The amendments are proposed under TWC, §5.103, which provides the
commission 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;
and §5.105, which authorizes the commission to establish and approve
all general policy of the commission by rule.
The proposed amendments implement HB 2912, 77th Legislature, 2001.
§1.3.Business Office and Mailing Address of the Agency.
(a)
Agency offices. The agency's offices are located at Park
35, 12100 North Interstate 35, Austin.
Effective September 1, 2002, the
[
(b)
Chief clerk's address.
Effective September 1, 2002,
the
[
§1.4.Seal of the Commission.
Effective September 1, 2002, the
[
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 February 15, 2002.
TRD-200200956
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 31, 2002
For further information, please call: (512) 239-4712
30 TAC §3.2
The Texas Natural Resource Conservation Commission (commission
or agency) proposes an amendment to §3.2. The commission's name will
change to the Texas Commission on Environmental Quality on September 1, 2002,
and the proposed amendment reflects this change.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
During the 77th legislative session, the agency underwent the sunset review
process culminating in the enactment of House Bill (HB) 2912, which, among
other things, extended the term of the agency to September 1, 2013 and changed
its name to the Texas Commission on Environmental Quality.
House Bill 2912, §18.01(a), 77th Legislature, 2001, states that: "
Effective January 1, 2004: (1) the name of the Texas Natural Resource Conservation
Commission is changed to the Texas Commission on Environmental Quality, and
all the powers, duties, rights, and obligations of the Texas Natural Resource
Conservation Commission are the powers, duties, rights and obligations of
the Texas Commission on Environmental Quality;...."
House Bill 2912, §18.01(c) grants the commission latitude in phasing
in the name change. Section 18.01(c) provides: "The Texas Natural Resource
Conservation Commission shall adopt a timetable for phasing in the change
of the agency's name so as to minimize the fiscal impact of the name change.
Until January 1, 2004, to allow for phasing in the change of the agency's
name and in accordance with the timetable established as required by this
section, the agency may perform any act authorized by law for the Texas Natural
Resource Conservation Commission as the Texas Natural Resource Conservation
Commission or as the Texas Commission on Environmental Quality. Any act of
the Texas Natural Resource Conservation Commission acting as the Texas Commission
on Environmental Quality after the effective date of this Act and before January
1, 2004, is an act of the Texas Natural Resource Conservation Commission."
In accordance with a timetable adopted by the commission on November 9,
2001, formal, public phase in of the agency name change will begin September
1, 2002.
The current name of the agency appears in a number of the commission rules;
however, it is not feasible to change all these rules simultaneously to conform
with the new name. Rather, the commission will take a two-prong approach in
effectuating the name changes in its rules. First, the commission proposes
through this limited rulemaking to change key provisions of its rules, such
as the name on the seal and address of the chief clerk in 30 TAC Chapter 1
(being proposed concurrently in this issue of the
Texas Register
) and the definition of "commission" in this chapter,
effective September 1, 2002. Secondly, the balance of the commission rules
in which the current name of the agency appears, or that of its predecessors
(Texas Water Commission and Texas Air Control Board), will be revised on a
chapter-by-chapter basis as rulemakings are convened to modify those chapters
for other reasons or as part of the quadrennial review of our rules in accordance
with Texas Government Code, §2001.039.
SECTION DISCUSSION
The name of the agency appearing in §3.2(8) concerning the definition
of the "commission" is proposed to be changed as of September 1, 2002 to the
Texas Commission on Environmental Quality. Paragraphs (5), (11), (15), (17),
(18), (21), (27), (31) - (33), and (35) - (38) are proposed to be amended
to make minor grammatical and administrative revisions.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
determined that for the first five-year period the proposed rule is in effect,
there will be no fiscal impacts to units of state or local government as a
result of administration and enforcement of the proposed rule.
This rulemaking is intended to implement certain provisions of HB 2912.
This bill changed the name of the commission to the Texas Commission on Environmental
Quality, effective January 1, 2004. In order to comply with the name change,
this rulemaking is intended to update the name of the agency in the existing
Chapter 3 definitions rule, effective September 1, 2002.
The proposed rulemaking only affects the agency. No other units of state
and local government are affected by this proposal. The commission does not
anticipate significant fiscal implications due to implementation of the proposed
amendment.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed rule is in effect, the public benefit anticipated from administration
of the proposed rule would be compliance with the terms of HB 2912 regarding
the change of the agency's name to the Texas Commission on Environmental Quality.
In order to comply with the name-change provision of HB 2912, this rulemaking
is intended to update the name of the agency in the existing Chapter 3 definitions
rule, effective September 1, 2002.
The proposed rulemaking only affects the agency. No individuals or businesses
should be affected by these changes; therefore, there are no anticipated costs
to individuals and businesses due to implementation of this rulemaking.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal impacts to small or micro-businesses as
a result of the proposed amended section, which is intended to implement provisions
of HB 2912 concerning the change of the agency's name to the Texas Commission
on Environmental Quality. In order to comply with the name-change provision
of HB 2912, this rulemaking is intended to update the name of the agency in
the existing Chapter 3 definitions rule, effective September 1, 2002.
The proposed rulemaking only affects the agency. No small or micro-businesses
should be affected by these changes; therefore, there are no anticipated costs
to small or micro-businesses due to implementation of this rulemaking.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has 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 rulemaking 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, 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 "major environmental rule" because the rulemaking
is not specifically intended to protect the environment or reduce risks to
human health from environmental exposure. This rulemaking merely proposes
to conform certain rules to state statutory requirements relating to the change
of the agency's name to the Texas Commission on Environmental Quality in accordance
with HB 2912. The commission invites public comment on the draft regulatory
impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rule 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 the proposed rule because this is an action
that is reasonably taken to fulfill an obligation mandated by state law, which
is exempt under Texas Government Code, §2007.003(b)(4). The specific
purpose of the proposed rule is to modify certain chapters of the commission
rules to reflect the change of the agency's name to the Texas Commission on
Environmental Quality in accordance with HB 2912. Promulgation of the proposed
rule would be neither a statutory nor a constitutional taking of private real
property. Specifically, the subject proposed 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 that which would otherwise exist in the absence of the
regulations. In other words, no private property will be affected in any way
by this rule. There are no burdens imposed on private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
rule is neither identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas
Coastal Management Program (CMP), nor will it affect any action/authorization
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11.
Therefore, the proposed rule is not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
2001-089-003-AD. Comments must be submitted by 5:00 p.m. on April 1, 2002.
For further information, please contact Auburn Mitchell, Office of Environmental
Policy, Analysis, and Assessment, (512) 239-1973.
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103, which provides the commission
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; and §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule.
The proposed amendment implements HB 2912, 77th Legislature, 2001.
§3.2.Definitions.
The following words and terms, when used in this part, shall have the
following meanings, unless the context clearly indicates otherwise.
(1) - (4)
(No change.)
(5)
CERCLA (Superfund)--Comprehensive Environmental Response,
Compensation, and Liability Act, 42 United States Code
(USC),
§§9601
- 9675 (1980, as amended).
(6) - (7)
(No change.)
(8)
Commission--
As of September 1, 2002, the agency's
name shall be the Texas Commission on Environmental Quality.
[
(9) - (10)
(No change.)
(11)
CWA--Clean Water Act, Federal Water Pollution Control
Act, 33
USC,
[
(12) - (14)
(No change.)
(15)
EPCRA--The Emergency Planning and Community Right-To-Know
Act, 42
USC,
[
(16)
(No change.)
(17)
FCAA--The Federal Clean Air Act, 42
USC,
[
(18)
FIFRA--The Federal Insecticide, Fungicide, and Rodenticide
Act, 7
USC,
[
(19) - (20)
(No change.)
(21)
NEPA--The National Environmental Policy Act, 42
USC,
[
(22) - (26)
(No change.)
(27)
PPA--Pollution Prevention Act, 42
USC,
[
(28) - (30)
(No change.)
(31)
RCRA--The Resource Conservation and Recovery Act, 42
USC,
[
(32)
SARA--Superfund Amendments and Reauthorization Act, Public
Law Number 99-499, 100 Stat. 1613 (codified as amended in scattered sections
of 10
USC
[
(33)
SDWA--Safe Drinking Water Act, 42
USC,
[
(34)
(No change.)
(35)
TCAA--The Texas Clean Air Act, Texas Health and Safety
Code
(THSC)
, Chapter 382.
(36)
TRCA--The Texas Radiation Control Act,
THSC
[
(37)
TSCA--Toxic Substances Control Act, 15
USC,
[
(38)
TSWDA--The Texas Solid Waste Disposal Act,
THSC
[
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 February 15, 2002.
TRD-200200957
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 31, 2002
For further information, please call: (512) 239-6087
Subchapter L. ON-SITE SEWAGE FACILITIES
30 TAC §35.901
The Texas Natural Resource Conservation Commission (commission)
proposes an amendment to §35.901, Emergency Order Concerning On-site
Sewage Disposal System. This proposal is published concurrently with a notice
of intention to review and readopt Chapter 35 as published in the Review of
Agency Rules section of this issue of the
Texas Register
.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The commission conducted a preliminary review of Chapter 35 in accordance
with Texas Government Code, §2001.039, and Senate Bill 178, 76th Legislature,
1999, which require state agencies to review and consider for readoption each
of their rules every four years. That review determined that the reasons for
the rules in Chapter 35 still exist, and the rules are still needed to implement
Texas Water Code (TWC), Chapter 5, Subchapter L, Emergency and Temporary Orders.
The review of Chapter 35 is published concurrently in the Review of Agency
Rules.
SECTION DISCUSSION
The review of Chapter 35 revealed that the language in §35.901, relating
to on-site sewage disposal systems, is unclear. The title of Subchapter L
and the heading for §35.901 are proposed for amendment to refer to on-site
sewage facilities (OSSFs), rather than on-site sewage disposal systems. The
proposed amendment to §35.901 clarifies that the commission may issue
an emergency order requiring the owner of an OSSF to cease operation of the
OSSF and that the commission may issue an emergency order to suspend the license
of an OSSF installer.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined for the first five-year period the proposed amendment is in
effect, there will be no fiscal implications for units of state and local
government due to administration and enforcement of the proposed amendment.
The proposed amendment revises existing commission emergency order rules to
clarify that in the case of an emergency, the commission could suspend the
license of an OSSF installer, or require the cessation of operation of an
OSSF.
On-site sewage facilities are one or more systems, typically used at residential
homes, schools, office buildings, restaurants, motels, and hospitals, that
treat and dispose of 5,000 gallons of wastewater or less each day and that
are only used for disposal of sewage where the system is located.
The proposed amendment is procedural in nature and does not introduce additional
regulatory requirements for units of state and local government that own or
operate OSSF systems; therefore, the commission anticipates no significant
fiscal impacts to units of state and local government due to implementation
of the proposed amendment.
PUBLIC BENEFITS AND COSTS
Mr. Davis also has determined for each year of the first five years the
proposed amendment is in effect, the public benefit anticipated from enforcement
of and compliance with the proposed amendment will be clarification that in
an emergency situation, the commission has the authority to suspend the license
of an OSSF installer, or require the cessation of operation of an OSSF.
The proposed amendment revises existing commission emergency order rules
to clarify that in the case of an emergency, the commission could suspend
the license of an OSSF installer, or require the cessation of operation of
an OSSF.
The proposed amendment is procedural in nature and does not introduce additional
regulatory requirements for individuals or businesses that own or operate
OSSF systems; therefore, the commission anticipates no significant fiscal
impacts to individuals or businesses due to implementation of the proposed
amendment.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Although many small and micro-businesses own or operate OSSF systems, there
will be no adverse fiscal implications to small or micro-businesses due to
implementation of the proposed amendment. This amendment is intended to revise
existing commission emergency order rules to clarify that in the case of an
emergency, the commission could suspend the license of an OSSF installer,
or require the cessation of operation of an OSSF.
The proposed amendment is procedural in nature and does not introduce additional
regulatory requirements for small or micro-businesses that own or operate
OSSF systems; therefore, the commission anticipates no significant fiscal
impacts to small or micro-businesses due to implementation of the proposed
amendment.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has 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 has reviewed the proposed 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 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 "major environmental rule" because the rulemaking
is not specifically intended to protect the environment or reduce risks to
human health from environmental exposure. Instead, the rulemaking is intended
to clarify existing procedural rules. Specifically, the proposed rulemaking
would clarify that the commission may issue an emergency order requiring the
owner of an OSSF to cease operation of the OSSF. Additionally, the proposed
rulemaking would clarify that the commission may issue an emergency order
to suspend the license of an OSSF installer.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these proposed
rules according to Texas Government Code, §2007.043. The specific purpose
of this rulemaking is to clarify that the commission may issue an emergency
order requiring the owner of an OSSF to cease operation of the OSSF. Additionally,
the proposed rulemaking would clarify that the commission may issue an emergency
order to suspend the license of an OSSF installer. The proposed amendment
will not burden private real property which is the subject of the rule because
the amendment clarifies existing rules.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has determined that the rulemaking is subject to the Texas
Coastal Management Program (CMP) and reviewed the rules for consistency in
accordance with the Coastal Coordination Act Implementation Rules 31 TAC Chapter
505, relating to Council Procedures for State Consistency with Coastal Management
Program Goals and Policies, and in particular, 31 TAC §505.11, relating
to Actions and Rules Subject to the Coastal Management Program, and identified
the rules as potentially affecting an action or authorization identified in
the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
The commission has conducted a preliminary consistency review of the rulemaking.
Applicable goals contained in 31 TAC §501.12 (Goals), include: 1) to
protect, preserve, restore, and enhance the diversity, quality, quantity,
functions, and values of coastal natural resource areas (CNRAs); 2) to ensure
sound management of all coastal resources by allowing for compatible economic
development and multiple human uses of the coastal zone; 3) to minimize loss
of human life and property due to the impairment and loss of protective features
of CNRAs; 4) to ensure and enhance planned public access to and enjoyment
of the coastal zone in a manner that is compatible with private property rights
and other uses of the coastal zone; 5) to balance the benefits from economic
development and multiple human uses of the coastal zone; the benefits from
protecting, preserving, restoring, and enhancing CNRAs; the benefits from
minimizing loss of human life and property; and the benefits from public access
to and enjoyment of the coastal zone; 6) to coordinate agency and subdivision
decision-making affecting CNRAs by establishing clear, objective policies
for the management of CNRAs; and 9) to make coastal management processes visible,
coherent, accessible, and accountable to the people of Texas by providing
for public participation in the ongoing development and implementation of
the Texas CMP.
The policy that is specifically applicable to on-site sewage disposal systems
is 31 TAC §501.14(g)(3), relating to nonpoint source water pollution,
which requires that on-site disposal systems and underground storage tanks
be located, designed, operated, inspected, and maintained so as to prevent
releases of pollutants that may adversely affect coastal waters. Location,
design, operation, and inspection or maintenance are not addressed in this
rulemaking.
The proposed amendment to §35.901 is an editorial change to clarify
the intent of the rule and is solely administrative; therefore, it will have
no significant effect on the activities governed by the rulemaking, nor will
it result in any significant adverse impacts to coastal resources.
Based on this review, the commission has determined that the rulemaking
will not have direct or significant adverse effect on any CNRAs; nor will
the rulemaking have a substantive effect on commission actions subject to
the CMP. The commission seeks public comment on this preliminary consistency
determination.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
2002-007-035-AD. Comments must be received by 5:00 p.m., April 1, 2002. For
further information or questions concerning this proposal, please contact
Debra Barber, Policy and Regulations Division, at (512) 239-0412.
STATUTORY AUTHORITY
The amendment is proposed under TWC, §§5.103, 5.105, and 5.513.
Section 5.103 provides the commission authority to adopt rules necessary to
carry out its powers and duties under the TWC and the Texas Health and Safety
Code. Section 5.105 grants the commission authority to establish and approve
the general policy of the commission by rule. Section 5.513 provides the commission
with the authority to issue emergency orders for OSSFs.
The proposed amendment implements TWC, §5.513, Emergency Order Concerning
On-Site Sewage Disposal System, which authorizes the commission to issue an
emergency order suspending the registration of the installer of an on-site
sewage disposal system, regulating an on-site sewage disposal system, or both,
if the commission finds that an emergency exists and that the public health
and safety is endangered because of the operation of an on-site sewage disposal
system that does not comply with Texas Health and Safety Code, Chapter 366,
or a rule adopted under that chapter.
§35.901.Emergency Order Concerning On-Site [
If the commission finds that an emergency exists and that the
public health and safety is endangered because the construction or operation
of an on-site sewage facility (OSSF) does not comply with Texas Health and
Safety Code, Chapter 366, or Chapter 285 of this title (relating to On-Site
Sewage Facilities); the commission may issue an emergency order that:
(1)
suspends the license of an
OSSF installer; or
(2)
requires cessation of operation of an OSSF.
[
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 February 15, 2002.
TRD-200200945
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 31, 2002
For further information, please call: (512) 239-5017
Subchapter B. OUTDOOR BURNING
30 TAC §111.209
The Texas Natural Resource Conservation Commission (commission)
proposes an amendment to §111.209.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
House Bill (HB) 2912, Article 17, 77th Legislature, 2001, amended the Occupation
Code by adding a new §801.361, Disposal of Animal Remains, to allow veterinarians
to dispose of animal remains by burial or burning under limited circumstances.
Occupation Code, §801.361, allows veterinarians to burn or bury animal
remains only if they do so on their own property; the property is in a county
with a population of less than 10,000; and they do not charge for the burning
or burial. The section also restricts the commission from adopting a rule
that prohibits conduct authorized by the section. The commission is proposing
an amendment to Chapter 111, Control of Air Pollution from Visible Emissions
and Particulate Matter, in order to make existing rules on burning consistent
with the new legislation. The revisions necessary in 30 TAC Chapter 330 to
make existing rules on burial consistent with the new legislation are being
proposed in a future rulemaking.
The existing rules in Chapter 111 prohibit outdoor burning in the State
of Texas except as provided by Subchapter B, Outdoor Burning, or by orders
or permits of the commission. The existing exceptions in Subchapter B regarding
disposal of animal carcasses allows only for the burning of diseased animal
carcasses when burning is the most effective means of controlling the spread
of disease. The commission proposes adding an additional exception to implement
the authorization added by HB 2912.
SECTION DISCUSSION
The proposed amendment to §111.209, Exception for Disposal Fires,
is necessary to implement the burning authorization provided by HB 2912. The
proposed amendment adds a new paragraph (3) to provide an exception to the
prohibition of outdoor burning for animal remains burning by a veterinarian
if the burning is conducted on property owned by the veterinarian; the property
is in a county with a population of less than 10,000; and the veterinarian
does not charge for the burning. Animal remains refer to an animal that dies
in the care of the veterinarian and does not include any other type of medical
waste.
Texas Government Code, §311.005, General Definitions, defines "population"
to mean population according to the most recent federal decennial census.
Therefore, the population figure of 10,000 specified in the proposed rule
amendment is based on the most recent federal decennial census.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed rule is in
effect, there will be no fiscal impacts to units of state or local government
as a result of administration and enforcement of the proposed rule.
This rulemaking is intended to implement certain provisions of HB 2912.
This bill allows a veterinarian to dispose of animal remains by burial or
burning only if the disposal occurs on property owned by the veterinarian,
the veterinarian does not charge for the disposal, and if the disposal occurs
in a county with a population of less than 10,000. In order to comply with
the legislation, this rulemaking is intended to add an additional exemption
to existing commission outdoor burning rules to implement the authorization
added by HB 2912.
The provisions in this rulemaking are voluntary and only apply to veterinarians
in counties with a population less than 10,000. The commission does not anticipate
this rulemaking will affect any units of state or local government.
PUBLIC BENEFIT AND COSTS
Mr. Davis also has determined that for each year of the first five years
the proposed rule is in effect, the public benefit anticipated from administration
of the proposed rule would be compliance with the terms of HB 2912 regarding
the authority for a veterinarian that meets certain conditions to dispose
of animal remains on-site through burial or burning.
This rulemaking is intended to implement certain provisions of HB 2912,
which allows a veterinarian to dispose of animal remains by burial or burning
only if the disposal occurs on property owned by the veterinarian, the veterinarian
does not charge for the disposal, and if the disposal occurs in a county with
a population of less than 10,000. In order to comply with the legislation,
this rulemaking is intended to add an additional exemption to existing commission
outdoor burning rules to implement the authorization added by HB 2912.
The proposed voluntary provisions do not add additional regulatory requirements
for affected individuals and businesses and only apply to veterinarians in
counties with a population less than 10,000. This rulemaking is intended to
increase disposal flexibility by providing qualifying veterinarians authorization
to dispose of animal remains on-site. This authorization could result in cost
savings for veterinarians that would no longer be required to have animal
remains shipped and disposed of offsite. Additionally, individuals that have
deceased animals disposed of by veterinarians on-site would not have to pay
for the disposal. According to a random sampling of veterinarians by the Texas
Veterinary Medical Association, the cost for offsite animal disposal ranges
between approximately $30 to $250, depending on the location of disposal site
and the size of the animal being disposed.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal impacts to small or micro-businesses as
a result of the proposed amended section, which is intended to implement provisions
of HB 2912, which allows a veterinarian to dispose of animal remains by burial
or burning only if the disposal occurs on property owned by the veterinarian,
the veterinarian does not charge for the disposal, and if the disposal occurs
in a county with a population of less than 10,000. In order to comply with
the legislation, this rulemaking is intended to add an additional exemption
to existing commission outdoor burning rules to implement the authorization
added by HB 2912.
The proposed voluntary provisions do not add additional regulatory requirements
for affected small and micro-businesses and only apply to veterinarians in
counties with a population less than 10,000. This rulemaking is intended to
increase disposal flexibility by providing qualifying veterinarians authorization
to dispose of animal remains on-site. This authorization could result in cost
savings for veterinarians that would no longer be required to have animal
remains shipped and disposed of offsite. Additionally, individuals that have
deceased animals disposed of by veterinarians on-site would not have to pay
for the disposal. According to a random sampling of veterinarians by the Texas
Veterinary Medical Association, the cost for offsite animal disposal ranges
between approximately $30 to $250, depending on the location of disposal site
and the size of the animal being disposed.
LOCAL EMPLOYMENT IMPACT
The commission has 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 rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
The proposed amendment to §111.209 is only intended to make existing
commission rules consistent with the new legislative changes made to the Occupation
Code, and the rule will not 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. Therefore, the proposed amendment
does not qualify as a "major environmental rule." Furthermore, the analysis
required by §2001.0225(c) does not apply because the proposed rule does
not meet any of the four applicability requirements of a major environmental
rule. The proposed rule 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 rule is proposed specifically to comply with HB 2912, and does not exceed
the requirements of that bill. The commission invites public comment on this
draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rule and performed a preliminary
assessment of whether the proposed rule constitutes a taking under Texas Government
Code, Chapter 2007. The specific purpose of the proposed rule is to make existing
commission rules consistent with the new legislative changes made to the Occupation
Code by HB 2912. The proposed rule would substantially advance this purpose
by allowing veterinarians doing business in sparsely populated counties to
dispose of an animal that dies in the care of the veterinarian.
Promulgation and enforcement of the proposed rule would be neither a statutory
nor a constitutional taking of private real property. Specifically, the proposed
rule will not affect private real property rights because it will not burden,
restrict, or limit an owner's property rights which would otherwise exist
in the absence of the regulation. The proposed rule will actually expand the
allowable uses of a veterinarian's private real property. Consequently, the
proposed rule does not meet the definition of a taking under Texas Government
Code, §2007.002(5).
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the proposal
is a rulemaking identified in Coastal Coordination Act Implementation Rules,
31 TAC §505.11, or will affect an action/authorization identified in
Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and, therefore,
will require that applicable goals and policies of the Texas Coastal Management
Program (CMP) be considered during the rulemaking process. In accordance with
the regulations of the Coastal Coordination Council, the commission reviewed
the proposed rulemaking for consistency with the CMP goals and policies. The
CMP goal applicable to this rulemaking is the goal to protect, preserve, and
enhance the diversity, quality, quantity, functions, and values of coastal
natural resource areas (CNRAs) (31 TAC §501.12(l)). The CMP policy applicable
to this rulemaking is the policy (31 TAC §501.14(q)) that commission
rules comply with federal regulations in 40 Code of Federal Regulations to
protect and enhance air quality in the coastal area (31 TAC §501.14(q)).
The specific purpose of the proposed rule is to make existing commission
rules consistent with the new legislative changes made to the Occupation Code
by HB 2912. The proposed rule authorizes veterinarians to burn animal remains
if they do so on their own property; the property is in a county with a population
of less than 10,000; and they do not charge for the burning. Because of the
limited circumstances under which burning is authorized, the commission anticipates
that promulgation and enforcement of the proposed rule will not have a direct
or significant adverse effect on any CNRAs, nor will the rulemaking have a
substantive effect on commission actions subject to the CMP. Therefore, the
rulemaking is consistent with the applicable goals and policy. The commission
seeks public comment on this preliminary consistency determination.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Austin on March 28, 2002
at 2:00 p.m. at the commission's central office in Building F, Room 2210,
located at 12100 Park 35 Circle. The hearing will be structured for the receipt
of oral or written comments by interested persons. Individuals may present
oral statements when called upon in order of registration. There will be no
open discussion during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes prior to the hearing and will
answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, Office of Environmental Policy,
Analysis, and Assessment, MC 205, Texas Natural Resource Conservation Commission,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 2001-088-111-AI. Comments must be
received by 5:00 p.m., April 1, 2002. For further information, please contact
Jill Burditt, Regulation Development Section, (512) 239-0560.
STATUTORY AUTHORITY
The amendment is proposed under Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to administer the requirements of the TCAA; §382.012,
which provides the commission the authority to develop a comprehensive plan
for the state's air; §382.017, which authorizes the commission to adopt
rules consistent with the policy and purposes of the TCAA; §382.018,
which authorizes the commission to control outdoor burning; §382.085,
which prohibits unauthorized air emissions; and Texas Water Code, §5.103,
which authorizes the commission to adopt rules.
The proposed amendment implements Texas Health and Safety Code, TCAA, §382.002,
concerning Policy and Purpose; §382.011, concerning General Powers and
Duties; §382.012, concerning State Air Control Plan; §382.017, concerning
Rules; §382.018, concerning Outdoor Burning of Waste and Combustible
Material; Texas Water Code, §5.103, concerning Rules; and Occupation
Code, §801.361, concerning Disposal of Animal Remains.
§111.209.Exception for Disposal Fires.
Outdoor burning shall be authorized for:
(1) - (2)
(No change.)
(3)
Animal remains burning by a
veterinarian if the burning is conducted on property owned by the veterinarian;
the property is in a county with a population of less than 10,000; and the
veterinarian does not charge for the burning. Animal remains refer to an animal
that dies in the care of the veterinarian and does not include any other type
of medical waste.
(4)
[
(5)
[
(6)
[
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 February 15, 2002.
TRD-200200943
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 31, 2002
For further information, please call: (512) 239-5017
The Texas Natural Resource Conservation Commission (commission) proposes
amendments to §213.4, Application Processing and Approval; and §213.23,
Plan Processing and Approval.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The 77th Legislature, 2001, passed House Bill (HB) 2912, §10.04 which
amended Texas Water Code (TWC), §26.137 to provide for a 30-day comment
period in the review process for protection plans in the contributing zone
of the Edwards Aquifer as provided in Subchapter A, §213.4(a)(2).
Rules under 30 TAC Chapter 213 Subchapter A, concerning the Edwards Aquifer
in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties
apply to all regulated developments within the recharge zone and to certain
activities within the transition zone and to point source wastewater discharges
in the recharge zone and up to ten miles upstream of the recharge zone within
the aquifer's contributory watersheds. Regulated development includes any
construction-related or post-construction activity on the recharge or transition
zones of the Edwards Aquifer having the potential for polluting the Edwards
Aquifer and hydrologically-connected surface streams. These activities include,
but are not limited to, the construction of residential or commercial sites,
utility lines, roads and highways, sewage collection systems, or aboveground
or underground storage tank facilities for static hydrocarbons or hazardous
substances. Clearing, excavation, or any other activity which alters or disturbs
the topographic, geologic, or existing recharge characteristics of a site
is also considered regulated activity.
Currently in §213.4(a)(1), no person may commence the construction
of any regulated activity until an Edwards Aquifer protection plan or modifications
to the plan have been filed with the appropriate regional office, and the
application has been reviewed and approved by the executive director. Section
213.4(c)(1) requires that an original and three copies of the application
must be submitted to the appropriate regional office. Under §213.4(a)(2),
the regional office then provides copies of the application to affected incorporated
cities, groundwater conservation districts, and counties in which the proposed
regulated activity will be located. These copies are required to be distributed
within five days of the application being determined to be administratively
complete. The executive director must declare that the application is administratively
complete or deficient within 30 days of receipt by the appropriate regional
office. Any person may file comments within 30 days of the date the application
is mailed to the local governmental entities. The executive director reviews
all comments that are timely filed. The executive director must complete the
review of an application within 90 days after determining that it is administratively
complete.
Effective June 1, 1999, the commission implemented new Chapter 213, Subchapter
B to regulate activities in the contributing zone to the Edwards Aquifer having
the potential for polluting surface streams which recharge the Edwards Aquifer.
United States Geological Survey hydrogeologic studies show that, on average,
80 to 85% of the recharge to the Edwards Aquifer takes place in the stream
beds that cross the recharge zone. The regulation of activities that can affect
the quality of water flowing into the recharge zone protects the quality of
the groundwater in the Edwards Aquifer, thus protecting the existing and potential
uses of these water resources.
Regulated activities under Subchapter B include any construction-related
or post-construction activity occurring in the contributing zone of the Edwards
Aquifer that has the potential for contributing pollution to surface streams
that enter the Edwards Aquifer recharge zone. These activities include, but
are not limited to, the construction of residential or commercial sites, utility
lines, roads and highways, or aboveground or underground storage tank facilities
for static hydrocarbons or hazardous substances. Clearing, excavation, or
any other activity which alters or disturbs the topographic, geologic, or
existing stormwater runoff characteristics of a site is also considered regulated
activity. Subchapter B rules apply only to regulated activities disturbing
at least five acres, or regulated activities disturbing less than five acres
which are part of a larger common plan of development or sale with the potential
to disturb cumulatively five or more acres.
Currently under Subchapter B, no person may commence the construction of
any regulated activity until a contributing zone plan or modifications to
the plan have been filed with the appropriate regional office, and the application
has been reviewed and approved by the executive director.
An original and one copy of the application must be submitted to the appropriate
regional office. The executive director must complete the review of an application
for contributing zone plan approval within 15 calendar days of receipt by
the appropriate regional office. If the executive director fails to issue
a letter approving or denying the application within 16 calendar days after
receipt of the application, the application shall be deemed to be granted.
This rulemaking proposes to change the number of copies required to be
submitted for Edwards Aquifer protection plans submitted under Subchapter
A to allow the executive director to comply with the requirement to provide
copies of the application to affected incorporated cities, groundwater conservation
districts, and counties in which the proposed regulated activity will be located.
The current requirement of submitting an original and three copies does not
allow for a copy to be kept by the appropriate regional office after the other
copies have been distributed.
For Subchapter B, this rulemaking proposes to provide for a 30-day comment
period for contributing zone plans as required under HB 2912. The rulemaking
also proposes to change the number of copies of an application which an applicant
must submit to ensure the executive director can comply with the new requirement.
Further, to accommodate the proposed 30-day review process, this rulemaking
proposes to eliminate the 16-day automatic approval of a contributing zone
plan and move to a 90-day approval process. The statute does not require the
commission to change the 16-day automatic approval. However, program staff
experiences have shown that the 16-day automatic approval following the 30-
day comment period does not allow adequate time for further review by program
staff or additional work that may be required by the applicant's consultants
to address comments received. Subchapter A rules currently provide for a 90-day
review time after the 30-day comment period for applications submitted for
the recharge and transition zones. This proposed change will make the review
time for the contributing zone plans consistent with the review time for the
recharge and transition zone plans.
Finally, this rulemaking would change the language in §213.23(e)(2),
relating to grounds for denying a contributing zone application, and add it
to the proposed §213.23(e). The denial language currently provides the
executive director a mechanism to deny, within 15 days, an application submitted
for the contributing zone. However, with deletion of the 16-day approval language,
this language would no longer apply because the proposed changes would allow
construction in the contributing zone to begin only after the agency issues
an approval letter.
SECTION BY SECTION DISCUSSION
Subchapter A: Edwards Aquifer in Medina, Bexar,
Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties
The commission proposes to amend §213.4, Application Processing and
Approval, by changing the submission requirement in §213.4(c)(1) from
an original and three copies of the application to an original and one copy
for the executive director to review. Additionally, one copy for each affected
incorporated city, groundwater conservation district, and county in which
the proposed regulated activities will be located, would be required. The
rule further clarifies that all the copies must be sent to the appropriate
regional office. This allows the executive director to comply with §213.4(a)(2),
which requires the regional office to provide copies of the applications to
affected incorporated cities, groundwater conservation districts, and counties
in which the proposed regulated activity will be located. Past practice has
shown that three copies may not be adequate to distribute to all of these
entities and to retain a copy at the region office.
In addition, with the creation of new groundwater conservation districts
during the 77th Legislative Session, 2001, the executive director cannot specify
the exact number of copies needed. Thus, the rule has been changed from requiring
a specific number to requiring, "additional copies as needed." The number
of copies needed is dependent upon the location of the project, because the
project could potentially fall under the jurisdiction of more than one groundwater
district, in addition to a county and municipality. To assist applicants in
determining the number of copies they need to submit, the agency has developed
guidance that is available on the agency's web page at
http://www.tnrcc.state.tx.us/EAPP/review.html
. Additionally, applicants
that have a project in Hays, Travis, or Williamson Counties can call the Austin
Regional Office at (512) 339-2929 for assistance in determining the number
of copies they need to submit. Applicants that have projects in Kinney, Uvalde,
Medina, Bexar, or Comal Counties can call the San Antonio Regional Office
at (210) 409-3096 for assistance.
Subchapter B: Contributing Zone to The Edwards
Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hayes, Travis and Williamson
The commission proposes to amend the title of Subchapter B by correcting
the misspelling of Hays County. The commission proposes to change the title
from "Contributing Zone to The Edwards Aquifer in Medina, Bexar, Comal, Kinney,
Uvalde, Hayes, Travis and Williamson" to "Contributing Zone to The Edwards
Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson."
The commission proposes to amend §213.23(a) by adding language which
will create a new paragraph (2) and renumbering the existing paragraph (2)
to paragraph (3). The new language in paragraph (2) requires the appropriate
regional office to provide copies of applications to affected incorporated
cities, groundwater conservation districts, and counties in which the proposed
regulated activity will be located. Additionally, the rule proposes that the
regional office distribute the copies within five days of the application
being determined to be administratively complete. Further, the new language
proposes to allow any person to file comments within 30 days of the date the
application is mailed to local governmental entities. Finally, the rule proposes
to require the executive director to review all comments that are timely filed.
The commission proposes these changes to incorporate the requirements of HB
2912, §10.04, which as codified in TWC, §26.137, requires the commission
to provide a 30-day comment period in the review process for the protection
plans in the contributing zone of the Edwards Aquifer as provided in §213.4(a)(2).
Additionally, these changes will make the Subchapter B comment period requirements
and review period consistent with Subchapter A.
The commission proposes to amend §213.23(c)(1) by changing the submission
requirement in subsection (c)(1) from an original and one copy of the application
to an original and one copy of the application for the executive director
to review and one copy for each affected incorporated city, groundwater conservation
district, and county in which the proposed regulated activities will be located.
Once the copies are received, the executive director will distribute them
to the affected local governmental entities for review and comment. These
changes are required under HB 2912, §10.04, which requires the regional
offices to provide copies of the applications to parties listed in §213.4(a)(2).
The commission proposes to amend §213.23(e) by deleting paragraphs
(1) - (3) and adding language to require that the executive director must
complete the review of an application within 90 days after determining that
it is administratively complete. Further, the proposed rule requires the executive
director to declare that the application is administratively complete or deficient
within 30 days of receipt by the appropriate regional office. Finally, the
proposed rule provides that grounds for a deficient application include, but
are not limited to, failure to include all information listed in this section
and failure to pay all applicable application fees. These proposed changes
reflect the language in current §213.23(e)(2) which is proposed to be
deleted and added to revised §213.23(e).
The commission proposes these changes to allow adequate time for both the
agency to review and respond to comments and for the applicant to respond
to questions or requests for information that the agency may have based on
comments received during the 30-day comment period. The executive director
believes that 90 days will be adequate time for any needed investigation by
the executive director's staff or any additional work that may need to be
performed by the applicant's consultants. Subchapter A rules currently provide
for a 90-day review time for applications submitted for the recharge and transition
zones, which the executive director has found to be adequate.
Since the Subchapter B rules became effective June 1, 1999, review of these
plans has proven to be similar to that of plans submitted under Subchapter
A. It was originally thought that the plans submitted for the contributing
zone would allow for an abbreviated review process, since the plans were certified
by a licensed professional engineer and no geologic assessment was required.
Even though the plans are certified, additional information is frequently
needed by the executive director to evaluate the adequacy of the plan. Thus,
these rules propose to make the review time consistent between both Subchapters
A and B.
Additionally, the current automatic approval for contributing zone plans
causes a delay in review and approval for plans submitted for the recharge
and transition zones under Subchapter A. Plans are reviewed in the order received
to ensure fairness to all applicants. However, when contributing zone plans
are submitted, due to the automatic approval after 15 days, staff must re-prioritize
and focus on the review of the contributing zone plan first, and the recharge
and transition zone plans that are currently under review must be delayed.
This change in prioritization may cause further delays and associated costs
for the recharge and transition zone projects. If all the plans are reviewed
under the same time frame, plans will be reviewed fairly in the order received.
Currently, the agency is able to exercise more flexibility in accepting
recharge and transition zone plans at the time of plan submittal. If a plan
is accepted as administratively complete but additional technical information
is needed, there is flexibility in the review schedule to obtain the additional
technical information needed. Automatic approval on contributing zone plans
removes this flexibility. Plans are currently turned away at time of submittal
due to the lack of time to receive the additional information needed for the
review.
In addition, without adequate time to respond to comments for both the
executive director and the applicant, the executive director might be forced
to deny plans that would otherwise be approved with additional investigation
time. If the executive director denies a plan, the applicant will need to
not only resubmit the plan which will start the review process over but also
pay an additional application fee for that plan.
It has become increasingly more difficult for the executive director to
meet the 15-day review time for submitted contributing zone plans, because
of the increase in the total number of contributing zone plans being received.
For example, in the Austin Regional Office the number of contributing zone
plans received increased from 24 in Fiscal Year (FY) 2000 to 51 in FY 2001.
In addition, the Edwards Aquifer Protection Program has seen an increase in
plans submitted for the recharge and transition zones as well as the contributing
zone. The number of plans submitted for the recharge and transition zones
in the Austin Regional Office increased from 305 in FY 2000 to 327 in FY 2001
and in the San Antonio Regional Office, the number increased from 198 to 244.
FISCAL NOTE: COST TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed rules are
in effect, there will be no significant fiscal implications for units of state
and local government due to administration and enforcement of the proposed
rules.
These proposed rules are intended to implement certain provisions of HB
2912 (an act relating to the continuation and functions of the commission;
providing penalties), 77th Legislature, 2001. The bill required the commission
to implement a 30-day comment period in the review process for protection
plans submitted for regulated activities in the contributing zone of the Edwards
Aquifer. This comment period was implemented on September 1, 2001. These proposed
rules would also change the number of copies of protection plans required
to be submitted to the commission's regional offices for activities within
the recharge, transition, and contributing zones of the Edwards Aquifer and
would delete the 16-day automatic approval of contributing zone protection
plans, replacing it with a 90-day review time after the close of the 30-day
comment period. No significant fiscal implications for the commission are
anticipated due to the repeal of the 16-day automatic approval provision.
A protection plan consists of blueprints and various applications/plans
including water pollution abatement plans, contributing zone plans, organized
sewage collection system plans, aboveground/underground storage tank facility
plans, modifications to existing plans, or exception requests. These plans
have to be approved by the commission before any construction activity in
the affected areas can start.
The Edwards Aquifer recharge, transition, and contributing zones are located
in portions of Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson
Counties. All regulated activities within the recharge, transition, and contributing
zones of the Edwards Aquifer would be affected by this rulemaking. Regulated
activities, under Subchapter A, include any construction-related or post-construction
activity that include, but are not limited to, the following: construction
of buildings, utility stations, utility lines, roads, highways, or railroads;
clearing, excavation, or any other activity that alters or disturbs the topographic,
geologic, or existing recharge characteristics of a site; any installation
of aboveground or underground storage tank facilities on the recharge or transition
zone of the Edwards Aquifer; or any other activities that may pose a potential
for contaminating the Edwards Aquifer and hydrologically-connected surface
streams. Regulated activities under Subchapter B are similar to those under
Subchapter A, but apply only to activities disturbing at least five acres,
or disturbing less than five acres which are part of a larger common plan
of development or sale with the potential to disturb cumulatively five or
more acres.
The proposed rules will change the requirement for copies of protection
plans from requiring a specific number to requiring copies as needed. Currently,
the commission requires an original and three copies of a recharge or transition
zone protection plan and an original and one copy of a contributing zone protection
plan. Upon receiving these copies from applicants for projects located over
the recharge or transition zone, the commission's regional offices distribute
the copies to affected incorporated cities, groundwater conservation districts,
and counties in which the regulated activity will be located. The proposed
rules would remove the specific copy criteria and instead require an original
and one copy for the commission and one copy for each affected incorporated
city, groundwater conservation district, and county in which the regulated
activity will be located.
In order to provide the commission with sufficient time to review and analyze
comments submitted during the new 30-day comment period, this rulemaking would
delete the 16- day automatic approval of contributing zone protection plans.
Currently, if the executive director does not issue a letter approving or
denying a protection plan submitted for a regulated activity in the contributing
zone of the Edwards Aquifer within 16 days, the plan is automatically approved.
The proposed timing changes would make the review period for contributing
zone protection plans the same as protection plans submitted for regulated
activities in the recharge and transition zones of the Edwards Aquifer, which
already require a 30-day comment period.
The commission annually processes approximately 70 contributing zone protection
plans and approximately 570 recharge and transition zone protection plans.
Out of this total, approximately ten contributing and 50 recharge and transition
zone protection plans are submitted by units of state and local government.
The new 30-day comment period for contributing zone protection plans is
not anticipated to result in significant fiscal implications for units of
state and local government that are required to submit protection plans for
construction activities in the contributing zone of the Edwards Aquifer. As
mandated by HB 2912, the 30-day comment period was implemented on September
1, 2001. The majority of contributing zone plans affected by this provision
are not submitted by units of state and local government. Out of the 18 contributing
zone plans submitted for review so far in FY 2002, only three have been submitted
by units of government. Two of these plans are still pending, awaiting the
completion of the 30-day comment period. The commission has received no information
that would indicate that this delay has resulted in significant fiscal impacts
for any affected unit of government. Future applications for construction
activity in the contributing zone of the Edwards Aquifer are anticipated to
incorporate the 30-day comment period and the 90-day review time after the
comment period into overall construction plans, which should not result in
significant fiscal implications.
The requirement to provide additional copies of protection plans as needed
is also not anticipated to result in significant fiscal implications for units
of state and local government that are required to submit protection plans
for construction activity over the Edwards Aquifer. The commission anticipates
that the highest number of copies that will need to be made in order to provide
a copy of the protection plan to the commission and all affected incorporated
cities, groundwater conservation districts, and counties is approximately
six copies with one original, which is four copies more than currently required
for contributing zone plans and two copies more than for recharge and transition
zone plans. The commission estimates the requirement to reproduce six copies
will be rare, and that the average number of copies required to be reproduced
will be closer to four. Given the size of the protection plans, which can
be as many as 100 pages including blueprints, the commission anticipates affected
units of state and local government will pay an additional $60 per copy to
comply with the proposed rules.
PUBLIC BENEFIT AND COSTS
Mr. Davis has also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rules will be increased time for the public
and affected units of local government to comment on potential environmental
impacts of construction activity over the Edwards Aquifer or in the contributing
zone to the Edwards Aquifer, resulting in potentially increased water quality
protection of the Edwards Aquifer.
This rulemaking is intended to implement certain provisions of HB 2912,
77th Legislature, 2001, which required the commission to implement a 30-day
comment period in the review process for protection plans submitted for regulated
activities in the contributing zone of the Edwards Aquifer. This rulemaking
would also increase the number of copies of protection plans required to be
submitted to the commission's regional offices for activities within the recharge,
transition, and contributing zones of the Edwards Aquifer and would delete
the 16-day automatic approval of contributing zone protection plans, replacing
it with a 90-day review time after the close of the 30-day comment period.
The commission annually processes approximately 70 contributing zone protection
plans and approximately 570 recharge and transition zone protection plans.
Out of this total, approximately 60 contributing and 520 recharge and transition
zone protection plans are submitted by individuals and businesses.
As mandated by HB 2912, the 30-day comment period was implemented on September
1, 2001. The new 30-day comment period for contributing zone protection plans
is not anticipated to result in significant fiscal implications for individuals
and businesses that are required to submit protection plans for construction
activity over the Edwards Aquifer. The commission has received 18 contributing
zone protection plans so far in FY 2002. All but three of these applications
have already been approved and processed by the commission. None of the pending
three applications were submitted by individuals or larger businesses. The
commission has received no information that would indicate that the additional
30-day comment period has resulted in significant fiscal impacts for any affected
individual or business since it was implemented on September 1, 2001. Future
applications for construction activity in the contributing zone of the Edwards
Aquifer are anticipated to incorporate the 30-day comment period and the 90-day
review time after the 30-day comment period into overall construction plans,
which should not result in significant fiscal implications.
The requirement to provide additional copies of protection plans as needed
is also not anticipated to result in significant fiscal implications for individuals
and businesses that are required to submit protection plans for construction
activity over the Edwards Aquifer. The commission anticipates that the highest
number of copies that will need to be made in order to provide a copy of the
protection plan to the commission and all affected incorporated cities, groundwater
conservation districts, and counties is approximately six copies with one
original. The commission estimates the requirement to reproduce six copies
will be rare, and that the average number of copies required to be reproduced
will be closer to four. Given the size of the protection plans, which can
be as many as 100 pages including blueprints, the commission anticipates affected
individuals and businesses will pay an additional $60 per copy to comply with
the proposed rules.
SMALL AND MICRO-BUSINESS ASSESSMENT
There may be adverse fiscal implications, which are not anticipated to
be significant, for small and micro-businesses due to implementation of the
proposed rules, which are intended to implement provisions of HB 2912, 77th
Legislature, 2001. This bill required the commission to implement a 30- day
comment period in the review process for protection plans submitted for regulated
activities in the contributing zone of the Edwards Aquifer.
Additionally, this rulemaking would increase the number of copies of protection
plans required to be submitted to the commission's regional offices for activities
within the recharge, transition, and contributing zones of the Edwards Aquifer
and would delete the 16-day automatic approval of contributing zone protection
plans, replacing it with a 90-day review time after the close of the 30-day
comment period.
The commission annually processes approximately 70 contributing zone protection
plans and approximately 570 recharge and transition zone protection plans.
Out of this total, approximately 60 contributing and 520 recharge and transition
zone protection plans are submitted by industry, some of which may be small
or micro-businesses.
As mandated by HB 2912, the 30-day comment period was implemented on September
1, 2001. The new 30-day comment period for contributing zone protection plans
is not anticipated to result in significant fiscal implications for small
or micro-businesses that are required to submit protection plans for construction
activity over the Edwards Aquifer. The commission has received 18 contributing
zone protection plans so far in FY 2002. Of the 18 plans submitted, at least
one has been submitted by a small business. This plan is currently pending,
awaiting the completion of the 30-day comment period. The commission has received
no information that would indicate that the additional 30-day comment period
has resulted in significant fiscal impacts for any small or micro-businesses
since implemented on September 1, 2001. Future applications for construction
activity in the contributing zone of the Edwards Aquifer are anticipated to
incorporate the 30-day comment period and the 90-day review time after the
30-day comment period into overall construction plans, which should not result
in significant fiscal implications.
The requirement to provide additional copies of protection plans as needed
is also not anticipated to result in significant fiscal implications for small
and micro-businesses that are required to submit protection plans for construction
activity over the Edwards Aquifer. The commission anticipates that the highest
number of copies that will need to be made in order to provide a copy of the
protection plan to the commission and all affected incorporated cities, groundwater
conservation districts, and counties is approximately six copies with one
original. The commission estimates the requirement to reproduce six copies
will be rare, and that the average number of copies required to be reproduced
will be closer to four. Given the size of the protection plans, which can
be as many as 100 pages including blueprints, the commission anticipates affected
small and micro-businesses will have to pay an additional $60 per copy to
comply with the proposed rules.
The following is an analysis of the potential cost per employee for small
or micro-businesses affected by the proposed rules. Small and micro-business
are defined as having fewer than 100 or 20 employees respectively. A small
business that is required to provide four additional copies of a contributing
zone protection plan would spend an additional $3.00 per employee while a
micro-business would spend an additional $12 per employee to comply with the
proposed rules.
LOCAL EMPLOYMENT IMPACT
The commission has 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 has reviewed the proposed rulemaking in light of the regulatory
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 §2001.0225(g)(3).
The rulemaking only makes the following procedural changes: 1) increases the
number of copies of an application which an applicant must submit; 2) corrects
the misspelling of Hays County; 3) provides for a 30-day comment period in
the review process for protection plans in the contributing zone; and 4) substitutes
a 90-day approval process for contributing zone plans instead of the 16-day
automatic approval. None of these proposed rules are expected 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. Furthermore, even if the proposed rules did
meet the definition of a "major environmental rule," the proposed rules are
not subject to §2001.0225 because they do not accomplish any of the four
results specified in §2001.0225(a). First, there are no federal law standards
relating to or applicable to the protection of groundwater quality in the
Edwards Aquifer. Therefore, there are no applicable standards set by federal
law that could be exceeded by these rules. Second, the requirements of these
proposed rules seek to carry out the commission's statutory responsibility
to protect the quality of the aquifer pursuant to TWC, §26.046 and §26.0461
and in accordance with §26.137 and §26.011. Therefore, the rulemaking
does not exceed an express requirement of state law. Third, the commission
is not a party to a delegation agreement with the federal government concerning
a state and federal program that would be applicable to requirements set forth
in these rules. Therefore, there are no delegation agreement requirements
that could be exceeded by these rules. Fourth, the commission proposes these
rules to protect the Edwards Aquifer pursuant to and in furtherance of its
requirements under the specific state law of TWC, §§26.137, 26.046,
and 26.0461. Therefore, the commission does not propose these rules solely
under the commission's general powers.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this proposal
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purposes of this rulemaking are to implement
HB 2912, §10.04 and to make the procedural requirements of the contributing
zone plan approvals consistent with the recharge and transition zone plan
approvals. The proposed rulemaking advances these purposes by changing the
number of copies of an application which an applicant must submit, correcting
the misspelling of Hays County, providing for a 30-day comment period in the
review process for protection plans in the contributing zone, and substituting
a 90-day approval process for contributing zone plans instead of the 16-day
automatic approval. This proposed rulemaking will not create any additional
burden on private real property and will not constitute a taking. House Bill
2912, §10.04 specifically requires a 30-day comment period for contributing
zone plans. The commission decided to propose the 90-day approval process
rather than a longer or shorter period because the 16-day automatic approval
does not allow program staff adequate time for review and the 90-day approval
process will make the rules consistent with the rules of the recharge and
transition zone plans.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rules
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, nor will they affect any action/authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC 505.11. Therefore,
the proposed rules are not subject to the Texas Coastal Management Program.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in San Antonio
on March 20, 2002 at 7:00 p.m., in the City Council Chambers located in the
Municipal Plaza Building, 103 Main Plaza as well as in Austin on April 3,
2002 at 10:00 a.m., Texas Natural Resource Conservation Commission, 12100
Park 35 Circle, Building F, Room 2210. The hearing will be structured for
the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not occur during the hearing; however, an agency staff member
will be available to discuss the proposal 30 minutes prior to the hearing
and answer questions before and after the hearing.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Natural Resource Conservation Commission,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 2001-086-213-WT. Comments must be
received by 5:00 p.m., April 15, 2002. For further information, please contact
Kathy Ramirez, Regulation Development Section, at (512) 239-6757.
Subchapter A. EDWARDS AQUIFER IN MEDINA, BEXAR, COMAL, KINNEY, UVALDE, HAYS, TRAVIS, AND WILLIAMSON COUNTIES
30 TAC §213.4
STATUTORY AUTHORITY
The amendment is proposed under HB 2912, §10.04, which amended TWC, §26.137
to provide for a 30-day comment period in the review process for protection
plans in the contributing zone of the Edwards Aquifer. Additionally, the amendment
is proposed under TWC, §5.103, which provides the commission with the
authority to promulgate rules necessary for the exercise of its jurisdiction
and powers provided by the TWC and other laws of Texas; §5.105, which
directs the commission to establish and approve all general policy of the
commission by rule; §26.046, which requires the commission to receive
public comment on actions the commission should take to protect the Edwards
Aquifer from pollution; and §26.0461, which allows the commission to
impose fees for inspecting the construction and maintenance of projects covered
by plans and for processing plans or amendments that are subject to review
or approval under the commission's Edwards Aquifer rules. Texas Water Code, §26.011
provides that the commission will administer the provisions of TWC, Chapter
26 and establishes the level of quality to be maintained and controls the
quality of the water in the state. Additionally, §26.121 prohibits unauthorized
discharges; §26.401 gives the goal for groundwater protection in the
state; and §28.011 authorizes the commission to make and enforce rules
for the protection and preservation of groundwater.
The proposed amendment implements TWC, §§5.103, 5.105, 26.011,
26.0461, 26.121, 26.137, 26.401, and 28.011.
§213.4.Application Processing and Approval.
(a) - (b)
(No change.)
(c)
Application submittal.
(1)
Submit one original and one copy for the executive
director's review and additional copies as needed for each affected incorporated
city, groundwater conservation district, and county in which the proposed
regulated activities will be located. The copies must be submitted to the
appropriate regional office.
[
(2)
(No change.)
(d)- (k)
(No change.)
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 February 14, 2002.
TRD-200200931
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 31, 2002
For further information, please call: (512) 239-4712
30 TAC §213.23
STATUTORY AUTHORITY
The amendment is proposed under HB 2912, §10.04, which amended TWC, §26.137
to provide for a 30-day comment period in the review process for protection
plans in the contributing zone of the Edwards Aquifer. Additionally, the amendment
is proposed under TWC, §5.103, which provides the commission with the
authority to promulgate rules necessary for the exercise of its jurisdiction
and powers provided by TWC and other laws of Texas; §5.105, which directs
the commission to establish and approve all general policy of the commission
by rule; §26.046, which requires the commission to receive public comment
on actions the commission should take to protect the Edwards Aquifer from
pollution; and §26.0461, which allows the commission to impose fees for
inspecting the construction and maintenance of projects covered by plans and
for processing plans or amendments that are subject to review or approval
under the commission's Edwards Aquifer rules. Texas Water Code, §26.011
provides that the commission will administer the provisions of TWC, Chapter
26 and establishes the level of quality to be maintained and controls the
quality of the water in the state. Additionally, §26.121 prohibits unauthorized
discharges; §26.401 gives the goal for groundwater protection in the
state; and §28.011 authorizes the commission to make and enforce rules
for the protection and preservation of groundwater.
The proposed amendment implements TWC, §§5.103, 5.105, 26.011,
26.0461, 26.121, 26.137, 26.401, and 28.011.
§213.23.Plan Processing and Approval.
(a)
Approval by executive director.
(1)
(No change.)
(2)
The appropriate regional office shall provide copies
of applications to affected incorporated cities, groundwater conservation
districts, and counties in which the proposed regulated activity will be located.
These copies will be distributed within five days of the application being
determined to be administratively complete. Any person may file comments within
30 days of the date the application is mailed to local governmental entities.
The executive director shall review all comments that are timely filed.
(3)
[
(b)
(No change.)
(c)
Submission of application.
(1)
Submit one original and one copy for the executive
director's review and additional copies as needed for each affected incorporated
city, groundwater conservation district, and county in which the proposed
regulated activities will be located. The copies must be submitted to the
appropriate regional office.
[
(2)
(No change.)
(d)
(No change.)
(e)
Executive director review.
The executive director
must complete the review of an application within 90 days after determining
that it is administratively complete. The executive director must declare
that the application is administratively complete or deficient within 30 days
of receipt by the appropriate regional office. Grounds for a deficient application
include, but are not limited to, failure to include all information listed
in this section and failure to pay all applicable application fees.
[
[
[
(f) - (k)
(No change.)
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 February 14, 2002.
TRD-200200932
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 31, 2002
For further information, please call: (512) 239-4712
Subchapter A. GENERAL PROVISIONS
The commission's
] mailing address is
: Texas Commission
on Environmental Quality,
P.O. Box 13087, Austin, Texas 78711-3087.
The
] chief clerk's mailing address is: Office of Chief
Clerk,
Texas Commission on Environmental Quality
[
Texas Natural
Resource Conservation Commission
], Mail Code 105, P.O. Box 13087, Austin,
Texas 78711-3087. The chief clerk's office is located in Austin, Park 35,
Building F, 12015 North Interstate 35.
The
] seal of
the commission will bear the words
"Texas Commission on Environmental
Quality"
[
"Texas Natural Resource Conservation Commission"
]
encircling the oak and olive branches common to other official state seals.
Chapter 3.
DEFINITIONS
The Texas Natural Resource Conservation Commission.
] In these rules,
the term "commission" means the commissioners acting in their official capacity.
United States Code
] §§1251 -
1387 (1977, as amended).
United States Code
] §§11001
- 11050 (1986).
United States Code
] §§7401 - 7671q (1970, as amended).
United States Code
] §§135 - 136y
(1972, as amended).
United States Code
] §§4321 - 4370e (1969,
as amended).
United States Code
] §§13101 - 13109 (1990).
United States Code
] §§6901 - 6991i (1976,
as amended).
United States Code
], 26
USC
[
United States Code
], and 42
USC
[
United States Code
]) (1986).
United States Code
] §§300f - 300j-26 (1974, as amended).
Texas Health and Safety Code
], Chapter 401.
United States Code
] §§2601 - 2692 (1976, as amended).
Texas Health and Safety Code
], Chapter 361.
Chapter 35.
EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS On-site ] Sewage Facilities [ Disposal System ].
The commission may issue an emergency order suspending the registration
of the installer of an on-site sewage disposal system, regulating an on-site
sewage disposal system, or both, if the commission finds that an emergency
exists and that the pubic health and safety is endangered because of the operation
of an on-site sewage disposal system that does not comply with Texas Health
and Safety Code, Chapter 366, or a rule adopted under that chapter.
]
Chapter 111.
CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER
(3)
] On-site burning of trees,
brush, and other plant growth for right-of-way maintenance, landclearing operations,
and maintenance along water canals when no practical alternative to burning
exists and when the materials are generated only from that property. Structures
containing sensitive receptors must not be negatively affected by the burn.
Such burning shall be subject to the requirements of §111.219 of this
title (relating to General Requirements for Allowable Outdoor Burning). When
possible, notification of intent to burn should be made to the appropriate
commission regional office prior to the proposed burn. For a single project
entailing multiple days of burning, an initial notice delineating the scope
of the burn is sufficient if the scope does not constitute circumvention of
the rule for a continual burning situation. Commission notification or approval
is not required.
(4)
] Crop residue burning for agricultural
management purposes when no practical alternative exists. Such burning shall
be subject to the requirements of §111.219 of this title, and structures
containing sensitive receptors must not be negatively affected by the burn.
When possible, notification of intent to burn should be made to the appropriate
commission regional office prior to the proposed burn. Commission notification
or approval is not required. This section is not applicable to crop residue
burning covered by an administrative order.
(5)
] Brush, trees, and other plant
growth causing a detrimental public health and safety condition may be burned
by a county or municipal government at a site it owns upon receiving site
and burn approval from the executive director. Such a burn can only be authorized
when there is no practical alternative, and it may be done no more frequently
than once every two months. Such burns cannot be conducted at municipal solid
waste landfills unless authorized under §111.215 of this title (relating
to Executive Director Approval of Otherwise Prohibited Outdoor Burning), and
shall be subject to the requirements of §111.219 of this title.
Chapter 213.
EDWARDS AQUIFER
An original and three copies of the
application must be submitted to the appropriate regional office.
]
Subchapter B. CONTRIBUTING ZONE TO THE EDWARDS AQUIFER IN MEDINA, BEXAR, COMAL, KINNEY, UVALDE, HAYS, TRAVIS, AND WILLIAMSON COUNTIES
(2)
] A complete application for
approval of a contributing zone plan, as described in this section, must be
submitted with a copy of the notice of intent and the appropriate fee as specified
in §213.27 of this title (relating to Contributing Zone Plan Application
and Exception Fees). The application may be submitted to the executive director
for approval prior to the submittal of the notice of intent to the EPA.
An original and one copy of the application
must be submitted to the appropriate regional office.
]
(1)
The executive director must
complete the review of an application for contributing zone plan approval
within 15 calender days of receipt by the appropriate regional office.]
(2)
Grounds for denial of an application
include, but are not limited to, failure to pay the application fee and failure
to include all information listed in this section.]
(3)
If the executive director
fails within 16 calendar days after receipt of the application to issue a
letter approving or denying the application, the application shall be deemed
to be granted.]
Chapter 285.
ON-SITE SEWAGE FACILITIES