31 TAC §§601.2, 601.3, 601.5
The Texas Groundwater Protection Committee (committee) proposes
amendments to §§601.2, 601.3, and 601.5, concerning General Provisions
Relating to Public Files and Joint Report.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The rules in Chapter 601 define the conditions that constitute groundwater
contamination for the purpose of inclusion of cases in the public files for
each state agency having responsibilities related to the protection of groundwater.
The rules also describe the contents of the committee's Joint Groundwater
Monitoring and Contamination Report required under Texas Water Code (TWC), §26.406.
The report describes the current status of groundwater monitoring activities
conducted by or required by each agency at regulated facilities or associated
with regulated activities; contains a description of each case of groundwater
contamination documented during the previous calender year; contains a description
of each case of contamination documented during the previous year for which
enforcement action was incomplete at the time of issuance of the preceding
report; and indicates the status of enforcement action for each case of contamination
which is listed.
The purpose of the proposed amendments is to implement legislative changes
to TWC, §26.403(c) regarding committee membership and to update the rules
to reflect the change of agency name from the Texas Natural Resource Conservation
Commission (TNRCC) to the Texas Commission on Environmental Quality (effective
September 1, 2002).
The committee also is proposing, in concurrent action, the review of Chapter
601 as required by Texas Government Code, §2001.039. The proposed notice
of review can be found in the Review of Agency Rules section in this issue
of the
Texas Register
.
SECTION BY SECTION DISCUSSION
The proposed amendment to §601.2, relating to Applicability, adds
the Water Well Drillers and Water Well Pump Installers Program of the Texas
Department of Licensing and Regulations to reflect the current membership
of the committee as revised by the 76th Legislature, 1999, House Bill (HB)
1848, which amended TWC, §26.403(c). The name of the Texas Natural Resource
Conservation Commission has been revised to the Texas Commission on Environmental
Quality (effective September 1, 2002) to reflect the agency name change as
required by HB 2912, §18.01, 77th Legislature, 2001.
The proposed amendment to §601.3, relating to Definitions, changes
to the term "commission," reflect an agency name change from the Texas Natural
Resource Conservation Commission to the Texas Commission on Environmental
Quality as required by HB 2912, 77th Legislature.
The proposed amendment to §601.5, relating to Joint Groundwater Monitoring
and Contamination Report, reflects the agency name change of the Texas Natural
Resource Conservation Commission to the Texas Commission on Environmental
Quality.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Ms. Mary Ambrose, designated chairman of the committee, determined that
during the first five- year period the amendments are in effect, there will
be no fiscal implications to state and local government as a result of the
administration of the proposed amendments. The effects of this proposed rule
change to reflect the change in committee membership and agency name changes
are not anticipated to be significant for any individual agency or organization
that is a member of the committee or impose substantial costs. Similarly,
fiscal implications are not anticipated to be significant for units of local
government that are currently providing information for the report. Because
the rules govern the actions of the committee member agencies and organizations,
no fiscal implications or employment impacts are anticipated for any other
party.
PUBLIC BENEFITS AND COSTS
Ms. Mary Ambrose, designated chairman of the committee, also determined
that for the first five years these sections as proposed are in effect, the
public benefit anticipated as a result of this proposed rule change, to reflect
the change in committee membership and an agency name change, and the publication
of the report will be improved public access to information regarding groundwater
contamination. The report describes the current status of groundwater monitoring
activities conducted by or required by each agency at regulated facilities
or associated with regulated activities; contains a description of each case
of groundwater contamination documented during the previous calender year;
contains a description of each case of contamination documented during the
previous year for which enforcement action was incomplete at the time of issuance
of the preceding report; and indicates the status of enforcement action for
each case of contamination which is listed. No public costs of this proposed
rule change is anticipated because the changes only add an agency to the list
of those required to provide information to the report and change the name
of Texas Natural Resource Conservation Commission to the Texas Commission
on Environmental Quality (effective September 1, 2002.)
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal implications for small or micro-businesses
as a result of implementation of the proposed amendments, which are intended
to revise the committee's rules to conform to legislative provisions.
LOCAL EMPLOYMENT IMPACT STATEMENT
The committee 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 committee reviewed the proposed rulemaking in light of the regulatory
impact 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 §2001.0225(g)(3).
The proposed rulemaking only implements legislative changes to TWC, §26.403(c)
regarding committee membership and updates the rules to reflect the new agency
name for the Texas Natural Resource Conservation Commission (TNRCC) to the
Texas Commission on Environmental Quality (effective September 1, 2002). These
amendments are not 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, the proposal does not exceed a standard set by federal law because
there is no equivalent federal statute for the reporting of groundwater contamination.
Second, this proposal does not exceed an express requirement of state law.
The committee is specifically authorized under TWC, §26.406(d) to adopt
rules defining the conditions that constitute groundwater contamination for
purposes of inclusion of cases in the public files and the joint report. Also,
the proposed changes reflect the requirements of state law which in HB 1848,
76th Legislature, 1999, added a member to the committee under revised TWC, §26.403(c)
and under HB 2912, 77th Legislature, 2001, changed the name of TNRCC, a member
on the committee.
Third, this proposal does not exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program because this report is
not part of a delegation agreement or contract between the state and a federal
program. Finally, this proposal does not adopt a rule solely under the general
powers of the committee instead of under a specific state law. The amendments
are specifically proposed under TWC, §26.406(d).
TAKINGS IMPACT ASSESSMENT
The committee prepared a takings impact assessment for this rule in accordance
with Texas Government Code, §2007.043. The purpose of this rulemaking
is to revise the membership of the committee to reflect legislative additions
to membership and agency name changes.
These rules provide for a listing of the duties and responsibilities assigned
to the committee under TWC, §26.406, concerning the maintenance by certain
state agencies of public files containing documented cases of groundwater
contamination and the publication by the committee, in conjunction with the
TNRCC, of annual groundwater monitoring and contamination reports and to establish
general policies of the committee to guide such implementation.
Because the rule governs the actions of the member agencies and organizations
on the committee, it does not affect private real property and does not, in
whole or in part, or temporarily or permanently, restrict or limit a property
owner's right to the property that would otherwise exist in the absence of
the rule.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The proposed committee rulemaking does not authorize actions contained
in the Coastal Coordination Act Implementation Rules in 31 TAC §505.11(a)(6)
or (b)(2) or the Natural Resources Code (NRC), Chapter 33. The NRC, §33.205(a)
states that "An agency or subdivision that takes an agency or subdivision
action described by §33.2051 or §33.2053 that may adversely affect
a coastal natural resource area shall comply with the goals and policies of
the coastal management program."
Title 31 TAC §505.11(a)(6) or (b)(2), which correspond directly with
NRC, §33.2051 and §33.2053, describe agency rulemaking actions that
require certain agencies to comply with NRC, §33.205(a) and (b) when
adopting or amending a rule governing certain activities. However, these provisions
do not list the committee as an agency subject to the provisions of NRC, §33.205(a)
and (b) or that must demonstrate compliance with the goals and policies of
the Coastal Management Plan (CMP). The committee is described as "an interagency
committee" in TWC, §26.403, with the power to adopt rules under TWC, §26.406(d).
Texas Water Code, §26.403(b) designates the TNRCC as the lead agency
for the committee, and provides that the TNRCC shall administer the activities
of the committee; however, the committee is given separate statutory power
to adopt rules under §26.406(d). Therefore, cited provisions of the TAC
and the NRC do not apply to the committee's adoption of rules.
Nonetheless, should the rulemaking actions of the committee be interpreted
for any reason as the TNRCC's adoption of rules, none of the proposed rules
falls under the actions described in 31 TAC §505.11(a)(6) and (b)(2)
or NRC, §33.2051 or §33.2053. Therefore, the requirements of the
CMP do not apply to this rulemaking.
SUBMITTAL OF COMMENTS
Written comments on the proposal should reference TGWPC-Groundwater Contamination
Report and may be submitted to Patricia Durón, Texas Natural Resource
Conservation Commission, 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 sent by fax must be followed by an original, signed hard copy
for the committee's records. Comments must be received by 5:00 p.m., April
15, 2002. For further information concerning this proposal, please contact
Mary Ambrose, Designated Chairman, Texas Groundwater Protection Committee,
at (512) 239-4813.
STATUTORY AUTHORITY
The amendments are proposed under TWC, §26.406(d), which provides
the committee with the authority to promulgate rules defining the conditions
that constitute groundwater contamination for the purposes of inclusion of
cases in the public files and the joint report under TWC, §26.406.
The proposed amendments implement TWC, §§26.401 - 26.407.
§601.2.Applicability.
These rules specifically apply to each state agency or organization
having membership on the committee. The committee is composed of the Texas
Natural Resource Conservation Commission
(or effective September 1, 2002,
the Texas Commission on Environmental Quality)
, the Texas Department
of Health, the Texas Department of Agriculture, the Railroad Commission of
Texas, the Texas Water Development Board, the Texas Alliance of Groundwater
Districts, the Texas Agricultural Experiment Station, the Bureau of Economic
Geology of the University of Texas at Austin, [
and
] the State Soil
and Water Conservation Board
, and the Water Well Drillers and Water Well
Pump Installers Program of the Texas Department of Licensing and Regulations
.
§601.3.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings unless the context clearly indicates otherwise.
(1)
(No change.)
(2)
Commission -- Texas Natural Resource Conservation Commission
(or effective September 1, 2002, the Texas Commission on Environmental Quality)
.
(3) - (7)
(No change.)
§601.5.Joint Groundwater Monitoring and Contamination Report.
In conjunction with the
commission
[
Texas Natural Resource
Conservation Commission
], the committee shall publish not later than
April 1 of each year a joint groundwater monitoring and contamination report
covering the activities and findings of the committee made during the previous
calendar year. The report must:
(1) - (3)
(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 27, 2002.
TRD-200201239
Stephanie Bergeron
Director, Environmental Law Division, Texas Natural Resource Conservation
Commission
Texas Groundwater Protection Committee
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 239-6087