31 TAC §§601.1 - 601.5
The Texas Groundwater Protection Committee (committee) proposes
amendments to §§601.1 - 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 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 proposed 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 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
Administrative and grammatical changes are proposed 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 proposed 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." Proposed 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 proposed 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 proposed amendment to §601.3, relating to Definitions, removes
ambiguity in the use of the definitions throughout the chapter. The proposed
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 proposed
amendment to §601.3(2) deletes reference to the Texas Natural Resource
Conservation Commission. The proposed 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 proposed 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 proposed 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.
Proposed 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 proposed 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 proposed 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).
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 purpose of the proposed amendments
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. The effects of the proposed rule 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 will be
improved public knowledge of committee activities. No public costs of the
proposed rule changes are anticipated because the 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.
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 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.
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 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 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
or for maintaining public files containing documented cases 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 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 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 proposal
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 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 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 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."
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 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 Kathleen McCormack, Groundwater Planning and
Assessment, MC 147, Texas Commission on Environmental Quality, P.O. Box 13087,
Austin, Texas 78711-3087, or faxed to (512) 239-4450. 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., June 12, 2006. 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, which provides the
committee with rulemaking authority.
The proposed amendments implement TWC, §§26.401 - 26.408.
§601.1.Purposes of Rules.
The
purposes
[
purpose
] of
this chapter are:
[
these sections is
]
(1)
to implement duties and responsibilities assigned
to the committee under [
the
] Texas Water Code, §26.406, concerning
the maintenance by
member
[
certain state
] agencies of
public files containing documented cases of groundwater contamination and
the publication by the committee, in conjunction with the commission, of annual
groundwater monitoring and contamination reports
;
[
and
]
(2)
to establish general policies of the committee
to guide
that
[
such
] implementation
; and
[
.
]
(3)
to specify the form and content
of the notice of groundwater contamination required under Texas Water Code, §26.408.
§601.2.Applicability.
These rules specifically apply to each state agency or organization
having membership on the committee. The committee is composed of
:
(1)
the [
Texas Natural Resource Conservation
Commission (or effective September 1, 2002, the
] Texas Commission on
Environmental Quality
;
[
),
]
(2)
the [
Texas
] Department of
State
Health
Services;
[
,
]
(3)
the Texas Department of Agriculture
;
[
,
]
(4)
the Railroad Commission of Texas
;
[
,
]
(5)
the Texas Water Development Board
;
[
,
]
(6)
the Texas Alliance of Groundwater Districts
;
[
,
]
(7)
the Texas Agricultural Experiment Station
;
[
,
]
(8)
the Bureau of Economic Geology of the University
of Texas at Austin
;
[
,
]
(9)
the State Soil and Water Conservation Board
;
[
,
] and
(10)
the Water Well Drillers and Water Well Pump
Installers Program of the Texas Department of Licensing and Regulation.
§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)
Act--House Bill 1458 (71st
Legislature, 1989
[
Session
]) codified
, with amendments,
as Texas Water Code
,
§§26.401 -
26.408
[
26.407
].
(2)
Commission--[
Texas Natural Resource Conservation Commission
(or effective September 1, 2002, the
] Texas Commission on Environmental
Quality[
)
].
(3)
(No change.)
(4)
Documented groundwater contamination--A case of groundwater
contamination
in which a member
[
where an
] agency has
an established procedure for making a determination based on the quality of
groundwater and the information pertinent to making the determination is maintained
by
that member
[
the
] agency under §601.4(b) of
this title (relating to Public Files).
(5)
Enforcement action--Any action of the
member
agencies,
identified in §601.2 of this title (relating to Applicability),
that
[
which
] accomplishes or requires the identification,
documentation, monitoring, assessing, or remediation of groundwater contamination.
(6)
(No change.)
(7)
Groundwater contamination--The detrimental alteration of
the naturally occurring physical, thermal, chemical, or biological quality
of groundwater.
Except for an underground source of drinking water granted
an aquifer exemption by the commission with concurrence from the United States
Environmental Protection Agency in accordance with 40 Code of Federal Regulations
Parts 144 - 146, and 30 TAC Chapter 331 (relating to Underground Injection
Control)
[
Furthermore
], groundwater contamination, for purposes
of inclusion of cases in the public files and the joint groundwater monitoring
and contamination report,
is
[
shall be
] limited to contamination
reasonably suspected of having been caused by activities or by entities under
the jurisdiction of the
member
agencies identified in
§601.2
[
§601.4(b)
] of this title (relating to
Applicability
[
Public Files
])[
, except in the case of an underground
source of drinking water granted an aquifer exemption by the commission with
concurrence from the United States Environmental Protection Agency in accordance
with 40 Code of Federal Regulations, Parts 144, 145, and 146, and 30 TAC Chapter
331 (Underground Injection Control);
] and affecting groundwater
that
[
which
] contains a concentration of:
(A)
(No change.)
(B)
greater than 10,000 mg/liter
of dissolved solids
if
it is:
(i)
(No change.)
(ii)
hydrologically connected with, and with the potential
for contaminant movement to, a surface water body or another zone of groundwater
that
[
which
] has a concentration of less than or equal to
10,000 mg/liter of dissolved solids.
(8)
Member agency--A state agency
or organization designated by law under Texas Water Code, §26.403(c),
to serve on the committee and be subject to its rules. Member agencies are
listed in §601.2 of this title (relating to Applicability). Member agencies
having responsibilities related to protection of groundwater include the commission,
the Department of Agriculture, the Railroad Commission of Texas, and the State
Soil and Water Conservation Board.
§601.4.Public Files.
(a)
Subject to the limitations provided by [
the
]
Texas Water Code, §§26.401 -
26.408
[
26.407
] (the Act), and the
Texas Public Information Act, Texas
Government Code, Chapter 552
[
Open Records Act, Texas Civil Statutes,
Article 6252-17a
], information collected, assembled, or maintained by
the committee and the
member
agencies having responsibilities related
to protection of groundwater under the Act is
a
public record open
to inspection and copying during regular business hours.
(b)
Each
member
agency having [
the
] responsibilities
related to the protection of groundwater under the Act shall maintain a public
file of all documented cases of groundwater contamination that are reasonably
suspected of having been caused by activities regulated by the
member
agency.
§601.5.Joint Groundwater Monitoring and Contamination Report.
In conjunction with the 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)
describe the current status of groundwater monitoring programs
conducted by or required by each
member
[
committee
]
agency [
or organization
] at regulated facilities or in connection
with regulated facilities;
(2) - (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 April 28, 2006.
TRD-200602373
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services, TCEQ
Texas Groundwater Protection Committee
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 239-0348