31 TAC §601.10
The Texas Groundwater Protection Committee (committee) proposes
new §601.10, Form and Content of Groundwater Contamination Notice.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
House Bill 3030, 78th Legislature, 2003, added §26.408 to the Texas
Water Code (TWC), Chapter 26. The new section contains the following provisions:
1.) a requirement that a state agency notify the Texas Commission on Environmental
Quality (TCEQ) if a case of groundwater contamination under TWC, §26.406(a),
is documented that may affect a drinking water well; 2.) a requirement that
the TCEQ make every effort to provide notice to the owners of private drinking
water wells that may be affected by the contamination and to applicable groundwater
conservation districts by first-class mail within 30 days of receiving a notification
or of obtaining independent knowledge of groundwater contamination; and 3.)
a requirement that the committee prescribe by rule, the form and content of
the groundwater contamination notice. This rulemaking implements the third
requirement by establishing the form and content of the notices that are to
be provided by TCEQ under TWC, §26.408.
SECTION DISCUSSION
The committee proposes new §601.10, Form and Content of Groundwater
Contamination Notice, in new Subchapter B, Notice of Groundwater Contamination.
When required by TWC, §26.408, the proposed rule prescribes the form
and content of a written notice to be provided by TCEQ to the owner of a private
drinking water well that may be affected by contamination and to each applicable
groundwater conservation district.
The proposed rule uses the existing definition of contamination contained
in §601.3(7) of this chapter (relating to Definitions). Under that definition,
which was derived from TWC, Chapter 26, contamination is the detrimental alteration
of the naturally occurring physical, thermal, chemical, or biological quality
of groundwater. Furthermore, the definition of groundwater contamination is
limited to: 1.) contamination reasonably suspected of having been caused by
activities or by entities under the jurisdiction of the agencies on the committee
having responsibilities related to the protection of groundwater; and 2.)
is limited to groundwater that contains a concentration of less than, or equal
to, 10,000 milligrams per liter (mg/L) of dissolved solids, or to groundwater
with greater than 10,000 mg/L of dissolved solids that is currently extracted
for beneficial use such as domestic, industrial, or agricultural purposes,
or is hydrologically connected with, and has the potential for contaminant
movement to, a surface water body or another zone of groundwater that has
a concentration of less than, or equal to, 10,000 mg/L of dissolved solids.
An exception to the definition is provided in the case of an underground source
of drinking water granted an aquifer exemption by TCEQ with concurrence from
the United States Environmental Protection Agency.
The proposed rule requires that the written notice contain the following
information: 1.) the name of the contaminant or contaminants; 2.) the range
of analytical results for the contaminant or contaminants measured in the
area or well to date; 3.) possible health effects of the contaminant or contaminants;
4.) possible source or sources for this type of contamination; 5.) suggested
actions and precautions potentially impacted well owners could take; and 6.)
who to contact for more information.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Mary Ambrose, designated chairman of the committee, determined that, during
the first five-year period the proposed new section is in effect, there will
be no fiscal implications for state and local government as a result of the
administration of the proposed section. The rule implements a requirement
of TWC, §26.408, by prescribing by rule the form and content of certain
notices to be provided by TCEQ under certain conditions. The provisions in
the rule are not expected to add substantially more information to the notices
nor to require substantially more staff time to prepare the notices than would
be required under TWC, §26.408. Because the rule only applies to the
notices provided by TCEQ, no impact is expected for other units of government.
PUBLIC BENEFITS AND COSTS
Ms. Ambrose also determined that, for the first five years the new section
as proposed is in effect, the public benefit anticipated as a result of this
proposed rule will be improved information for private well owners and applicable
groundwater conservation districts regarding contamination that may affect
drinking water wells. No costs to individuals from this proposed rule are
anticipated because the new section only prescribes the form and content of
certain notices to be provided by TCEQ.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal implications for small businesses or micro-businesses
as a result of implementation of the proposed new section, which is intended
to specify the form and content of certain notices provided by TCEQ, as required
by TWC, §26.408(c).
LOCAL EMPLOYMENT IMPACT STATEMENT
The committee reviewed this proposed rulemaking and determined that a local
employment impact statement is not required because the proposed rule, which
prescribes the form and content of certain groundwater contamination notices
provided by TCEQ, 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 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 implements legislative requirements in new TWC, §26.408(c),
regarding the content of certain notices to be provided by TCEQ. Because the
proposed new section only prescibes the form and content of the notice, it
is 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 rule did meet the definition of a "major environmental rule,"
the proposed rule is not subject to §2001.0225 because it does 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 that prescribes the form and content
of a notice to a groundwater conservation district or to the owner of a private
of drinking water well that may be affected by contamination. Second, this
proposal does not exceed an express requirement of state law. The committee
is specifically authorized under new TWC, §26.408(c), as added by House
Bill 3030, 78th Legislature, 2003, to adopt a rule defining the form and content
of the notices to be provided by TCEQ to the owner of a private drinking water
well that may be affected by contamination and to each applicable groundwater
conservation district. 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 notice 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 new section is specifically proposed under TWC, §26.408(c).
The committee invites public comment on the draft regulatory impact analysis
determination.
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 define the form and content of the written notice to the owner of a
private drinking water well that may be affected by contamination and each
applicable groundwater conservation district to be provided by TCEQ. The rule
provides the form and the minimum content of notices to be provided by TCEQ,
as required by new TWC, §26.408(b), concerning Notices of Groundwater
Contamination. Because the rule governs the actions of a member agency 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 committee reviewed the proposed rulemaking and found that the rule
is neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, nor will it affect any action or authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore,
the proposed rule is not subject to the Texas Coastal Management Program.
SUBMITTAL OF COMMENTS
Because TCEQ provides all administrative assistance to the committee, written
comments may be submitted to Lola Brown, Texas Commission on Environmental
Quality, 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 2003-044-601-WT. Comments must be received
by 5:00 p.m., September 22, 2003. For further information or questions concerning
this proposal, please contact Mary Ambrose, designated chairman of the committee,
TCEQ, Office of Environmental Policy, Analysis, and Assessment, at (512) 239-4813
or Joseph Thomas, TCEQ, Office of Environmental Policy, Analysis, and Assessment,
at (512) 239-4580.
STATUTORY AUTHORITY
The new section is proposed under House Bill 3030, 78th Legislature, 2003,
and TWC, §26.408, which authorizes the committee to prescribe the form
and content of the notices to be provided by TCEQ to the owner of a private
drinking water well that may be affected by contamination and to each applicable
groundwater conservation district. In addition, the new section is proposed
under TWC, §26.405, which establishes the general powers and duties of
the committee, as well as under TWC, §26.406, which establishes the committee's
authority to adopt rules defining the conditions that constitute groundwater
contamination for purposes of including such information in files available
for public inspection as well as in the joint report required to be filed
by the committee in conjunction with member agencies having responsibilities
related to the protection of groundwater.
The proposed new section implements TWC, §26.408.
§601.10.Form and Content of Groundwater Contamination Notice.
When notice of groundwater contamination, as defined in §601.3(7)
of this title (relating to Definitions), is provided under Texas Water Code, §26.408
to the owner of a private drinking water well that may be affected by the
contamination and to each applicable groundwater conservation district, the
notice shall:
(1)
be in writing; and
(2)
contain, at a minimum, the following information:
(A)
the name of the contaminant or contaminants;
(B)
the range of analytical results for the contaminant or
contaminants measured in the area or well to date;
(C)
possible health effects of the contaminant or contaminants;
(D)
possible source or sources for this type of contamination;
(E)
suggested actions and precautions potentially impacted
well owners could take; and
(F)
who to contact for more information.
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 August 8, 2003.
TRD-200304908
Stephanie Bergeron
Director, Environmental Law Division
Texas Groundwater Protection Committee
Earliest possible date of adoption: September 21, 2003
For further information, please call: (512) 239-0348