31 TAC §§601.1 - 601.5
The Texas Groundwater Protection Committee (committee) adopts
amendments to §§601.1 - 601.5, concerning General Provisions Relating
to Public Files and Joint Report. These sections are adopted without changes
to the proposed text in the May 12, 2006, issue of the
Texas Register
(31 TexReg 3841) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED 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 calendar 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 rules also specify the form and content of notices of
groundwater contamination that must be mailed to each owner of a private drinking
water well that may be affected by documented cases of groundwater contamination
and to each applicable groundwater conservation district as directed by TWC, §26.408.
The purpose of the adopted amendments is to make grammatical and phrasing
changes to conform with guidelines in the
Texas Legislative
Council Drafting Manual
, November 2004, for drafting statutes and rules,
to make changes in the current names of agencies, to correct legal citations,
and to clarify what agencies are subject to the rules.
The committee also is adopting, in concurrent action, the review of Chapter
601 as required by Texas Government Code, §2001.039. The adopted notice
of review can be found in the Review of Agency Rules section in this issue
of the
Texas Register
.
SECTION BY SECTION DISCUSSION
Administrative and grammatical changes are adopted throughout the sections
to bring the existing rule language into agreement with Texas Register requirements
and guidance provided in the
Texas Legislative Council
Drafting Manual
.
The adopted amendment to §601.1, relating to Purposes of Rules, clarifies
that the purposes of the rules apply to the whole Chapter 601 since the addition
of Subchapter B, relating to Notice of Groundwater Contamination, in 2003.
The two existing purposes and one new purpose are split out as separately
numbered paragraphs. In new paragraph (1), the form of a legal citation is
corrected, the use of the term "certain state agencies" is clarified by use
of the term "Member agency" that will be defined in §601.3(8), the paragraph
is ended by a semicolon, and the word "and" is deleted. In new paragraph (2),
the archaic demonstrative adjective "such" is replaced with the more proper
demonstrative pronoun "that," the paragraph is ended by a semicolon, and conjoined
with new paragraph (3) by "and." Adopted new paragraph (3) adds the purpose
to specify the form and content of the notice of groundwater contamination
required under TWC, §26.408, that was added in 2003 and implemented by
adoption of §601.10, relating to Form and Content of Groundwater Contamination
Notice, that same year.
The adopted amendment to §601.2, relating to Applicability, splits
out the state agencies and organizations having membership on the committee
as separately numbered paragraphs. New paragraph (1) deletes reference to
the Texas Natural Resource Conservation Commission. New paragraph (2) corrects
the name of the Department of State Health Services.
The adopted amendment to §601.3, relating to Definitions, removes
ambiguity in the use of the definitions throughout the chapter. The adopted
amendment to §601.3(1) corrects the legal citation of House Bill 1458
and extends the definition to include amendments to the TWC in 2003. The adopted
amendment to §601.3(2) deletes reference to the Texas Natural Resource
Conservation Commission. The adopted amendment to §601.3(4) clarifies
that documentation of groundwater contamination is made by one of the committee’s
member agencies, as newly defined, and clarifies that the information pertinent
to making a determination of groundwater contamination is maintained by the
same agency making the determination. The adopted amendment to §601.3(5)
clarifies that an enforcement action is made by one of the committee’s
member agencies and is restricted to action that accomplishes or requires
the identification, documentation, monitoring, assessing, or remediation of
groundwater contamination. The adopted amendment to §601.3(7) moves the
exception for an aquifer exemption to the beginning of the second sentence
rather than the middle of that sentence and corrects the two legal citations
in that exception, conforms to the guidelines in the
Texas Legislative Council Drafting Manual
to draft rules in the present
tense rather than the future tense, restricts the aquifer exemption to those
conditions in subparagraphs (A) or (B), clarifies that the quantity specified
in the condition in subparagraph (B) refers to dissolved solids, and restricts
the hydrological connection in clause (ii) of subparagraph (B) to a surface
water body or another zone of groundwater that has a concentration less than
or equal to the specified level.
Adopted new §601.3(8) defines "Member agency" as one of the ten entities
constituting the committee specified by TWC, §26.403 and §601.2,
whether those entities consider themselves or in fact are legally separate
agencies of the state. The new definition also specifies that not all member
agencies have legal responsibilities related to the protection of groundwater,
and specifies that those which do have responsibilities are those listed in
TWC, §26.406(b).
The adopted amendment to §601.4, relating to Public Files, corrects
the two legal citations and restricts the application of that rule to member
agencies having responsibilities related to the protection of groundwater
as newly defined in §601.3(8).
The adopted amendment to §601.5, relating to Joint Groundwater Monitoring
and Contamination Report, specifies that the report describe the current status
of groundwater monitoring programs conducted by or required by each member
agency as newly defined in §601.3(8).
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The committee reviewed the 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 adopted rulemaking only makes grammatical and phrasing changes to conform
with guidelines in the
Texas Legislative Council
Drafting Manual
for drafting statutes and rules, to make changes in
the current names of agencies, to correct legal citations, and to clarify
what agencies are subject to the rules. 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 adopted
rules did meet the definition of a "major environmental rule," the adopted
rules are not subject to §2001.0225 because they do not accomplish any
of the four results specified in §2001.0225(a).
First, the adoption does not exceed a standard set by federal law because
there is no equivalent federal statute for the reporting of groundwater contamination
or for maintaining public files containing documented cases of groundwater
contamination.
Second, this adoption 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 adopted changes only make grammatical and phrasing changes to conform
with guidelines in the
Texas Legislative Council
Drafting Manual
for drafting statutes and rules, to make changes in
the current names of agencies, to correct legal citations, and to clarify
what agencies are subject to the rules.
Third, this adoption 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 adoption
only makes grammatical and phrasing changes to conform with guidelines in
the
Texas Legislative Council Drafting Manual
for
drafting statutes and rules, to make changes in the current names of agencies,
to correct legal citations, and to clarify what agencies are subject to the
rules. Finally, this adoption does not adopt a rule solely under the general
powers of the committee instead of under a specific state law. The amendments
are specifically adopted under TWC, §26.406(d).
No comments were received on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The committee prepared a takings impact assessment for the rules in accordance
with Texas Government Code, §2007.043. The purpose of this rulemaking
is to make grammatical and phrasing changes to conform with guidelines in
the
Texas Legislative Council Drafting Manual
for
drafting statutes and rules, to make changes in the current names of agencies,
to correct legal citations, and to clarify what agencies are subject to the
rules.
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
Texas Commission on Environmental Quality (TCEQ), of annual groundwater monitoring
and contamination reports and 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 rules.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The adopted 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."
31 TAC §505.11(a)(6) and (b)(2), which corresponds directly with NRC, §33.2051
and §33.2053, describes 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 Program (CMP). The committee is described as "an interagency
committee" in TWC, §26.403, with the power to adopt rules under TWC, §26.406(d).
TWC, §26.403(b), designates the TCEQ as the lead agency for the committee,
and provides that the TCEQ shall administer the activities of the committee;
however, the committee is given separate statutory power to adopt rules under
TWC, §26.406(d) and §26.408(c). 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 TCEQ’s adoption of rules, none of the adopted
rules fall 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.
PUBLIC COMMENT
The proposed rules were published for comment in the May 12, 2006, issue
of the
Texas Register
(31 TexReg 3841). No
public hearing was held. The comment period closed June 12, 2006. No comments
were received.
STATUTORY AUTHORITY
The amendments are adopted under TWC, §26.406, which provides the
committee with rulemaking authority.
The adopted amendments implement TWC, §§26.401 - 26.408.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 27, 2006.
TRD-200603949
Robert Martinez
Director, Environmental Law Division, TCEQ
Texas Groundwater Protection Committee
Effective date: August 16, 2006
Proposal publication date: May 12, 2006
For further information, please call: (512) 239-0348