PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 115. CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS
SUBCHAPTER E. SOLVENT-USING PROCESSES
DIVISION 7. MISCELLANEOUS INDUSTRIAL ADHESIVES
30 TAC §§115.470, 115.471, 115.473
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to 30 Texas Administrative Code (TAC) §§115.470, 115.471, and 115.473.
Amended §§115.470, 115.471, and 115.473 are adopted without changes to the proposed text as published in the July 19, 2024, issue of the Texas Register (49 TexReg 5320) and therefore will not be republished.
The amended sections will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the State Implementation Plan (SIP).
Background and Summary of the Factual Basis for the Adopted Rules
Effective November 7, 2022, EPA reclassified nonattainment areas under the 2008 ozone National Ambient Air Quality Standards (NAAQS) (87 Federal Register (FR) 60926). A 10-county Dallas-Fort Worth (DFW) area (Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties) and an eight-county Houston-Galveston-Brazoria (HGB) area (Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties) were reclassified from serious to severe nonattainment with a 2026 attainment year and an attainment deadline of July 20, 2027. Reclassification to severe nonattainment triggered emission control evaluation, emission reduction quantification, rule writing, and SIP submission requirements for the DFW and HGB 2008 ozone NAAQS nonattainment areas that were submitted to EPA on May 7, 2024, to meet the deadline established in EPA's reclassification action for the 2008 ozone NAAQS.
The adopted rule revisions address federal Clean Air Act (FCAA) contingency measure requirements for the DFW and HGB ozone nonattainment areas. Contingency measures are control requirements that will take effect and result in emissions reductions if an area fails to attain a NAAQS by the applicable attainment date or fails to demonstrate reasonable further progress (RFP). Requirements for SIP contingency measures are established under FCAA, §172(c)(9) and §182(c)(9). This rule adoption specifically addresses the requirement for contingency measures that will take effect if either or both of the DFW and HGB nonattainment areas fail to attain or fail to demonstrate RFP under the 2008 eight-hour ozone NAAQS. Contingency measures for the DFW and HGB 2008 eight-hour ozone nonattainment areas were developed and submitted to EPA in a 30 TAC Chapter 115 rulemaking (Project No. 2023-116-115-AI) and three SIP revisions adopted April 24, 2024: the DFW 2008 Ozone NAAQS Severe Attainment Demonstration (AD) SIP Revision (Project No. 2023-107-SIP-NR), the HGB 2008 Ozone NAAQS Severe AD SIP Revision (Project No. 2023-110-SIP-NR), and the DFW-HGB 2008 Ozone NAAQS Severe RFP SIP Revision (Project No. 2023-108-SIP-NR). The contingency measures included in this rulemaking were inadvertently omitted from the Chapter 115 rulemaking adopted April 24, 2024.
Prior to adoption of the previous Chapter 115 rulemaking (Project No. 2023-116-115-AI), TCEQ staff determined there were omissions and incorrect limits in 30 TAC Chapter 115, Subchapter E, Division 7 rule revisions relating to Miscellaneous Industrial Adhesives. Omissions and incorrect limits in the rulemaking for the industrial adhesive volatile organic compounds (VOC) category resulted in an adopted industrial adhesive contingency measure that was insufficient to achieve the intended emission reductions in the associated SIP revisions. The industrial adhesives contingency measure was developed and intended to achieve VOC emissions reductions of 3.31 tons per day (tpd) in the DFW area and 3.12 tpd in the HGB area. However, the April 24, 2024, rulemaking implemented a measure that would only achieve 1.05 tpd in the DFW area and 0.99 tpd in the HGB area. The adopted rules, if triggered for contingency, will result in additional VOC emissions reductions of 2.26 tpd in the DFW area and 2.13 tpd in the HGB area. These additional SIP contingency emissions reductions, together with the previously adopted measures (Project No. 2023-116-115-AI), achieve the total contingency emissions reductions originally intended, 3.31 tpd in the DFW area and 3.12 tpd in the HGB area. Therefore, this rulemaking restores the emissions reductions to the amounts described in the contingency plan narratives in the adopted DFW AD SIP revision (Project No. 2023-107-SIP-NR), the HGB AD SIP revision (Project No. 2023-110-SIP-NR), and the DFW-HGB RFP SIP revision (Project No. 2023-108-SIP-NR).
The adopted contingency measures apply independently and separately for the DFW and HGB 2008 ozone NAAQS nonattainment areas. Implementation of a contingency measure will be triggered upon EPA publication of a notice in the Federal Register that the specified area(s) failed to meet the applicable ozone NAAQS by the applicable attainment date or demonstrate RFP and the commission's subsequent publication in the Texas Register that compliance with the contingency measure is required. Affected sources will be required to comply with the contingency rules by no later than 270 days after Texas Register publication.
Demonstrating Noninterference under Federal Clean Air Act, §110(l)
Under FCAA, §110(l), EPA cannot approve a SIP revision if it "would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of." The commission provides the following information to demonstrate why the adopted changes to the Chapter 115, Subchapter E, Division 7 rules in §115.470 (relating to Applicability and Definitions) and §115.473 (relating to Control Requirements) will not negatively impact the state's progress towards attainment, interfere with control measures, or prevent reasonable further progress toward attainment of the ozone NAAQS in the DFW or HGB nonattainment areas.
The commission adopts changes to Subchapter E, Division 7, Miscellaneous Industrial Adhesives, to implement a SIP contingency measure, as required by FCAA, §172(c)(9) and §182(c)(9). This measure, if triggered, will reduce VOC emissions in the DFW and/or HGB areas by revising VOC content limits on various types of industrial adhesives. The changes add new and revised VOC content limits in 30 TAC §115.473(e) and (f) that will apply if the contingency measure is triggered for the DFW or HGB area, respectively. These limits will, upon triggering, replace the current Chapter 115 VOC content limits in §115.473(a) for the DFW and/or HGB areas with limits taken from South Coast Air Quality Management District (SCAQMD) Rule 1168, as amended November 4, 2022.
Existing limits for industrial adhesives in 30 TAC §115.473(a) were developed to meet reasonably available control technology (RACT) requirements established by the 2008 EPA Control Techniques Guidelines (CTG) for Miscellaneous Industrial Adhesives. The emission limit recommended in the CTG is based on the 2005 version of SCAQMD Rule 1168. Since 2005, SCAQMD Rule 1168 has been amended to establish emission limits for bonding specific substrates. After the 2005 amendment of SCAQMD Rule 1168, several industry groups commented that no available adhesives could meet the VOC content limits for several categories of materials, and SCAQMD amended the rule in 2005 to allow higher interim VOC content adhesives while lower VOC content adhesives were being developed. This process continued through 2022, with multiple studies, interim limits, and revised lower VOC content limits once compliant adhesives were developed.
The six VOC content limits reduced in this rule adoption are beyond the limits in the rulemaking adopted April 24, 2024, (Project No. 2023-116-115-AI), which were set at the interim limits for those materials categories in SCAQMD Rule 1168. The adopted limits will replace the Rule 1168 interim limits previously adopted April 24, 2024, with the SCAQMD Rule 1168 final limits for those materials categories. Changes in SCAQMD Rule 1168 since 2005 for pressure sensitive adhesive primers, adhesives to join two specialty plastics, adhesives used in the manufacturing of computer diskettes, and adhesives for structural wood components have increased VOC content limits beyond the VOC content in §115.473(a). The adhesive applications in these categories were new subcategories of previous SCAQMD Rule 1168 and TCEQ adhesive rule categories. TCEQ chose its industrial adhesive contingency measure VOC content limits to equal the SCAQMD Rule 1168 limits adopted November 4, 2022, because TCEQ agrees with SCAQMD's analysis on technological feasibility for these limits. SCAQMD's analysis can be found in SCAQMD's Preliminary Draft Staff Report for Rule 1168 - Adhesive and Sealant Applications, dated August 2022.
Calculated emissions reductions for this measure sum the reductions in some adhesive categories and the increases in other categories to produce net emission reductions. In this adopted rulemaking, TCEQ provides the contingency measure emission reductions in a manner that avoids negatively impacting the status of the state's progress towards attainment or preventing reasonable further progress toward attainment of the ozone NAAQS in the DFW and HGB nonattainment areas or any other applicable requirement of the FCAA.
Section by Section Discussion
In addition to the information provided above for a background and summary of the adopted rules, including a demonstration of noninterference with §110(l) of the FCAA, the commission also adopts non-substantive changes to update the rules in accordance with current Texas Register style and format requirements, improve readability, establish consistency in the rules, and conform to the standards in the Texas Legislative Council Drafting Manual, September 2020. The specific substantive changes are discussed in greater detail in this Section by Section Discussion in the corresponding portions related to the affected rule sections.
Subchapter E: Solvent-Using Processes
Division 7. Miscellaneous Industrial Adhesives
The commission adopts amendments to Subchapter E, Division 7 to establish lower contingency VOC content limits for some existing industrial adhesive source categories, to add new subcategories of industrial adhesives with associated contingency measure VOC content limits, and to specify that the contingency VOC content limits, if triggered, will apply to adhesives used in the field. All contingency measure VOC content limits adopted in this rulemaking are the same or lower than the contingency measure limits added in the rulemaking adopted April 24, 2024, (Project No. 2023-116-115-AI). These amendments will be implemented in the DFW and/or HGB 2008 ozone NAAQS nonattainment areas if triggered for SIP contingency purposes.
In the rulemaking adopted April 24, 2024, (Project No. 2023-116-115-AI), staff inadvertently used interim higher VOC content limits from SCAQMD Rule 1168 for six industrial adhesive categories in Figures 30 TAC §115.473(e) and §115.473(f): acrylonitrile-butadiene-styrene (ABS) to polyvinyl chloride (PVC) Transition Cement, chlorinated polyvinyl chloride (CPVC) Welding Cement, Higher Viscosity CPVC, PVC Welding Cement, Rubber Vulcanization Adhesive, and Top and Trim Adhesive. This rulemaking corrects each of these unintended VOC content limits with limits that are more stringent, as previously intended. The rulemaking specifies that the contingency VOC content limits, if triggered, will apply to adhesives used in the field. The adopted VOC content limits and applicability specification align the SIP contingency rules in Chapter 115 with the limits used to calculate SIP contingency measure VOC emission reductions in the SIP revisions adopted April 24, 2024: the DFW AD SIP revision (Project No. 2023-107-SIP-NR), the HGB AD SIP revision (Project No. 2023-110-SIP-NR), and the DFW-HGB RFP SIP revision (Project No. 2023-108-SIP-NR).
Four of the contingency VOC content limits included in the Chapter 115 rulemaking adopted April 24, 2024, (Project No. 2023-116-115-AI) are revised in this rulemaking to be higher than the associated non-contingency VOC content limits in existing §115.473(a): ABS to PVC Transition Cement, PVC Welding Cement, Rubber Vulcanization Adhesive, and Top and Trim Adhesive. These changes will not interfere with meeting FCAA requirements in the DFW or HGB areas, as described elsewhere in this preamble, with all changes collectively producing net emission reductions.
This rulemaking also adds 20 industrial adhesive subcategories and establishes industrial adhesive VOC content limits that, if triggered for SIP contingency purposes, will achieve VOC emissions reductions consistent with the limits used to calculate VOC emissions reductions in the SIP revisions adopted April 24, 2024: the DFW AD SIP revision (Project No. 2023-107-SIP-NR), the HGB AD SIP revision (Project No. 2023-110-SIP-NR), and the DFW-HGB RFP SIP revision (Project No. 2023-108-SIP-NR). The 20 industrial adhesive category VOC content limits were inadvertently omitted from the Chapter 115 rulemaking adopted April 24, 2024, (Project No. 2023-116-115-AI).
§115.470 Applicability and Definitions
The commission adopts this rulemaking to add a provision to §115.470(a) which, upon triggering for SIP contingency purposes for either the DFW or HGB area, or both, will make adhesives and adhesive primers applied for compensation subject to this rule division. This is intended to exclude consumer use while including institutional, commercial, and industrial uses. It will also exclude use by volunteers such as Habitat for Humanity home builders or volunteers repairing homes without compensation. Home building and remodeling contractors will be included since they are compensated for their work applying adhesives. Adhesive use in commercial, institutional, and industrial settings is included because those uses are assumed to be for compensation. Emissions from consumer use were not included in the emissions reduction calculations for this contingency measure. Affected entities are required by §115.478(b)(1) to maintain records of VOC content to demonstrate compliance with the applicable VOC limits in §115.473(a), (e), or (f). Prior to triggering for contingency, field use of adhesives will continue not to be subject to the division.
The commission adopts this rulemaking to add 43 new definitions and to amend three existing definitions in §115.470(b). The new definitions were inadvertently omitted from the Chapter 115 rulemaking adopted April 24, 2024, (Project No. 2023-116-115-AI) and are necessary to implement VOC content limits for the industrial adhesive source categories. New definitions differentiate the new application-specific adhesives VOC content limits in adopted §115.473(e) and (f); to clarify the lower VOC content limits for existing application-specific adhesive content limits in adopted §115.473(e) and (f); to clarify the applicability of existing control requirements in §115.473(b); and to clarify the applicability of exemptions in existing §115.471(d)(2)(A), §115.471(d)(2)(G), and §115.471(d)(2)(I).
New definitions are adopted for architectural application; building envelope; building envelope membrane adhesive; carpet pad adhesive; chlorinated polyvinyl chloride (CPVC) welding or CPVC welding cement for life safety systems; computer diskette manufacturing; dry wall adhesive; ethylene propylene diene terpolymer (EPDM) and thermoplastic polyolefin (TPO) single-ply roof membrane adhesive; glass, porcelain, and stone tile adhesive; hot applied modified bitumen or built up roof adhesive; modified bituminous material; modified bituminous primer; panel adhesive; roof adhesive primer; rubber flooring adhesive; rubber vulcanization adhesive; shingle laminating adhesive; structural glazing adhesive; structural wood member adhesive; subfloor adhesive; vinyl compositions tile (VCT); vinyl compositions tile or VCT adhesive; and wood flooring adhesive. The adopted definitions in §115.470(b) specify the meaning of VOC limits for the application-specific adhesives included in the tables in adopted §115.473(e) and §115.473(f).
The commission also adopts new definitions in §115.470(b) for acrylonitrile-butadiene-styrene (ABS); acrylonitrile-butadiene-styrene or ABS to polyvinyl chloride (PVC) transition cement; acrylonitrile-butadiene-styrene or ABS welding cement; edge glue; fiberglass; higher viscosity CPVC welding cement; pressure sensitive adhesive; tire tread adhesive; top and trim adhesive; traffic marking tape; and vehicle glass adhesive primer. The adopted definitions clarify which adhesives and primers will be subject to the lower VOC content limits in adopted §115.473(e) and (f) if triggered for contingency purposes.
The commission also adopts new definitions in §115.470(b) for dip coat; electrostatic spray; flow coat; hand application methods; high volume low-pressure (HVLP) spray; and transfer efficiency. The adopted definitions clarify the applicability of control requirements in existing §115.473(b).
The commission also adopts new terms and definitions for adhesive tapes; shoe repair, luggage, and handbag adhesive; and solvent welding in §115.470(b). The adopted terms and definitions clarify the applicability of exemptions in existing §115.471(d)(2)(A), §115.471(d)(2)(G), and §115.471(d)(2)(I).
The commission adopts amendments to three existing definitions in §115.470(b). Language is added to the definition for chlorinated polyvinyl chloride or CPVC welding to clarify that the VOC content limit in §115.473 (e) and (f) applies to adhesives used in CPVC components for shower pan liner, drain, closet flange, and backwater valve systems as well as CPVC pipe and fittings. The commission also adopts amendments to the definitions for the existing terms indoor floor covering installation adhesive and multipurpose construction adhesive. The commission adopts amendments to each of these two definitions that maintain the existing definitions for use with the existing exemption provisions in §115.471(a) - (c) and add revised definitions for use with the exemption provisions in §115.471(d) and the control requirements in §115.473(e) and (f) if a contingency scenario is triggered in the DFW area, the HGB area, or both areas. Existing definitions in §115.470 are renumbered and reordered accordingly but are not otherwise substantively changed.
§115.471 Exemptions
The commission adopts an amendment to the last sentence of §115.471(d) to reference §115.479(c) or (d), rather than §115.479(c) or (e). This amendment correctly stipulates the compliance schedule for a contingency scenario in either the DFW or HGB area, or both areas.
§115.473 Control Requirements
The commission adopts adjustments to the VOC content limits associated with the miscellaneous industrial adhesives to correct contingency measure deficiencies in existing subsection §115.473(e) for the DFW area and §115.473(f) for the HGB area. The existing contingency control requirements are the same for both areas and specify that the limits must be met by applying low-VOC adhesives or adhesive primers. Adopted changes correct some VOC content limits included in a Chapter 115 rulemaking adopted April 24, 2024, and add VOC content limits meant to be included in that previous rulemaking. The adopted revisions establish emissions limits in §115.473(e) and §115.473(f) that are consistent with the current SCAQMD Rule 1168, as originally intended for the previously adopted rulemaking.
Adopted VOC content limits in the architectural applications category consist of building envelope membrane adhesive; carpet pad adhesive; ceramic tile installation adhesive; cove base installation adhesive, dry wall adhesive, glass, porcelain, and stone tile adhesive; multipurpose construction adhesives; and panel adhesive.
Adopted VOC content limits in the roofing category consist of hot applied modified bitumen or built up roof adhesive, ethylene propylene diene terpolymer (EPDM) and thermoplastic polyolefin (TPO) single-ply roof membrane adhesive, single-ply roof installation and repair membrane adhesive (except EPDM and TPO), shingle laminating adhesive, and all other roof adhesives.
Other individual VOC content limits for application-specific adhesives are adopted for rubber floor adhesive, structural glazing adhesive, structural wood member adhesive, subfloor adhesive, vinyl compositions tile (VCT) and asphalt tile adhesive, wood flooring adhesive, all other indoor floor covering adhesives, and all other outdoor floor covering adhesives.
Final Regulatory Impact Determination
The commission reviewed the rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "Major environmental rule" as defined in that statute, and in addition, if it did meet the definition, is not subject to the requirement to prepare a regulatory impact analysis. 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. Additionally, the adopted rules do not meet any of the four applicability criteria for requiring a regulatory impact analysis for a "Major environmental rule", which are listed in Tex. Gov't Code Ann., § 2001.0225(a). Section 2001.0225 of the Texas Government Code applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) 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; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.
The specific intent of these adopted rules is to comply with federal requirements for the implementation of control strategies necessary to attain and maintain the National Ambient Air Quality Standards (NAAQS) for ozone mandated by 42 United States Code (USC), 7410, Federal Clean Air Act (FCAA), §110, and required to be included in operating permits by 42 USC, §7661a, FCAA, §502, as specified elsewhere in this preamble. The rulemaking addresses contingency measure requirements for the DFW and HGB 2008 eight-hour ozone nonattainment areas, as discussed elsewhere in this preamble. States are required to adopt State Implementation Plans (SIPs) with enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the FCAA. As discussed in the FISCAL NOTE portion of the proposal preamble, the adopted rules are not anticipated to add any significant additional costs to affected individuals or businesses, beyond what is necessary to attain the ozone NAAQS, on 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.
If a state does not comply with its obligations under 42 USC, §7410, FCAA, §110 to submit SIPs, states are subject to discretionary sanctions under 42 USC, §7410(m) or mandatory sanctions under 42 USC, §7509, FCAA, §179; as well as the imposition of a federal implementation plan (FIP) under 42 USC, §7410, FCAA, §110I. Under 42 USC, §7661a, FCAA, §502, states are required to have federal operating permit programs that provide authority to issue permits and assure compliance with each applicable standard, regulation, or requirement under the FCAA, including enforceable emission limitations and other control measures, means, or techniques, which are required under 42 USC, §7410, FCAA, §110. Similar to requirements in 42 USC, §7410, FCAA, §110, states are not free to ignore requirements in 42 USC, §7661a, FCAA, §502 and must develop and submit programs to provide for operating permits for major sources that include all applicable requirements of the FCAA. Lastly, states are also subject to the imposition of sanctions under 42 USC, §7661a(d) and (i), FCAA, §502(d) and (i) for failure to submit an operating permits program, the disapproval of any operating permits program, or failure to adequately administer and enforce the approved operating permits program.
The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th legislative session in 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as "Major environmental rules" that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a "Major environmental rule" that exceeds a federal law. Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule proposed by the commission to meet a federal requirement was considered to be a "Major environmental rule" that exceeds federal law, then each of those rules would require the full regulatory impact analysis (RIA) contemplated by SB 633. Requiring a full RIA for all federally required rules is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the adopted rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA, and in fact creates no additional impacts since the adopted rules do not impose burdens greater than required to demonstrate attainment of the ozone NAAQS as discussed elsewhere in this preamble. For these reasons, the adopted rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law.
The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 4 89 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).) The commission's interpretation of the RIA requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard.
As discussed in this analysis and elsewhere in this preamble, the commission has substantially complied with the requirements of Texas Government Code, §2001.0225. The adopted rules implement the requirements of the FCAA as discussed in this analysis and elsewhere in this preamble. The adopted rules were determined to be necessary meet FCAA SIP requirements to attain the ozone NAAQS and are required to be included in permits under 42 USC, §7661a, FCAA, §502, and will not exceed any standard set by state or federal law. These adopted rules are not an express requirement of state law. The adopted rules do not exceed a requirement of a delegation agreement or a contract between state and federal government, as the adopted rules, if approved by EPA, will become federal law as part of the approved SIP required by 42 U.S.C. §7410, FCAA, §110. The adopted rules were not developed solely under the general powers of the agency but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the regulatory impact analysis determination.
Takings Impact Assessment
Under Texas Government Code, §2007.002(5), taking means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The commission completed a takings impact analysis for the rulemaking action under the Texas Government Code, §2007.043.
The primary purpose of this rulemaking action, as discussed elsewhere in this preamble, is to meet federal requirements for the implementation of control strategies necessary to attain and maintain the NAAQS for ozone mandated by 42 United States Code (USC), §7410, FCAA, §110, and required to be included in operating permits by 42 USC, §7661a, FCAA, §502. The rulemaking addresses contingency measure requirements for the DFW and HGB 2008 eight-hour ozone nonattainment areas, as discussed elsewhere in this preamble. States are required to adopt SIPs with enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the FCAA. If a state does not comply with its obligations under 42 USC, §7410, FCAA, §110 to submit SIPs, states are subject to discretionary sanctions under 42 USC, §7410(m) or mandatory sanctions under 42 USC, §7509, FCAA, §179; as well as the imposition of a federal implementation plan under 42 USC, §7410, FCAA, §110(c). Under 42 USC, §7661a, FCAA, §502, states are required to have federal operating permit programs that provide authority to issue permits and assure compliance with each applicable standard, regulation, or requirement under the FCAA, including enforceable emission limitations and other control measures, means, or techniques, which are required under 42 USC, §7410, FCAA, §110. Similar to requirements in 42 USC, §7410, FCAA, §110, regarding the requirement to adopt and implement plans to attain and maintain the national ambient air quality standards, states are not free to ignore requirements in 42 USC, §7661a, FCAA, §502 and must develop and submit programs to provide for operating permits for major sources that include all applicable requirements of the FCAA. Lastly, states are also subject to the imposition of sanctions under 42 USC, §7661a(d) and (i), FCAA, §502(d) and (i) for failure to submit an operating permits program, the disapproval of any operating permits program, or failure to adequately administer and enforce the approved operating permits program.
The adopted rules will not create any additional burden on private real property beyond what is required under federal law as the rules, if approved by EPA, will become federal law as part of the approved SIP required by 42 U.S.C. §7410, FCAA, §110. The adopted rules will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adopted rules also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the rulemaking will not cause a taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the rulemaking and found that it is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the rule adoption in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §29.22 and found the rulemaking is consistent with the applicable CMP goals and policies. The CMP goal applicable to the rulemaking is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §26.12(l)). The CMP policy applicable to the rulemaking is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC §26.32). The rulemaking will not increase emissions of air pollutants and is therefore consistent with the CMP goal in 31 TAC §26.12(1) and the CMP policy in 31 TAC §26.32. Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rules are consistent with these CMP goals and policies and because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas. Therefore, in accordance with 31 TAC §29.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.
The commission invited public comment regarding consistency with the CMP during the public comment period. No comments were received regarding the CMP.
Effect on Sites Subject to the Federal Operating Permits Program
Chapter 115 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program. If the rulemaking is adopted, owners or operators of affected sites subject to the federal operating permit program must, consistent with the revision process in Chapter 122, upon the effective date of the rulemaking, revise their operating permit to include the new Chapter 115 requirements.
Public Comment
The public comment period for the proposed rulemaking opened June 14, 2024, and closed July 29, 2024. TCEQ offered a virtual public hearing on July 25, 2024, at 10:00 a.m.; however, no individuals registered to provide testimony, and the hearing was not opened. During the comment period, the commission received comments from Texans for Environmental Awareness (TEA) recommending changes to the rule revision.
In this response to comments, the commission uses "HGB area" to refer to the 2008 eight-hour ozone nonattainment area, consisting of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties, unless otherwise specified. "DFW area" refers to the 2008 eight-hour ozone nonattainment area consisting of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties, unless otherwise indicated.
Response to Comments
Comment
TEA recommended that the commission implement limits that align with EPA's Control Techniques Guidelines for Miscellaneous Industrial Adhesives and provided example limits from those guidelines: general adhesives limits of 30 grams/liter (g/l) or lower; contact adhesives limits of 70 g/l or lower; and adhesive primer limits of 250 g/l or lower.
Response
TCEQ's existing industrial adhesive VOC limits in 30 TAC §115.473(a) mirror EPA's Control Techniques Guidelines for Miscellaneous Industrial Adhesives Reasonably Available Control Technology (RACT) limits. The industrial adhesive contingency measure VOC content limits in this rulemaking parallel the South Coast Air Quality Management District's (SCAQMD's) most recent (2023) limits. The SCAQMD's limits produce lower emissions from this sector than EPA's Control Techniques Guidelines for Miscellaneous Industrial Adhesives.Changes made to the VOC content limits do not adversely affect emission reductions and are intended to produce net emission reductions for the DFW and HGB areas when triggered for SIP contingency purposes, as described in the rule preamble.
Two of the three example CTG limits TEA provided are not consistent with EPA's Control Techniques Guidelines for Miscellaneous Industrial Adhesives. TEA correctly stated EPA's CTG limit for general adhesives primers, which is also the contingency limit at existing §115.473(e) and (f), the limit in adopted §115.473(e) and (f), and is consistent with the existing non-contingency limit at §115.473(a). TEA's example limit for general adhesives, 30 g/l or lower, does not correspond to EPA's CTG limit for general adhesives of 250 g/l. The contingency general adhesive limits in existing and adopted §115.473(e) and (f) match the CTG, and the non-contingency limit at existing §115.473(a) is also consistent with the CTG limit. This matches the SCAQMD limit, and TCEQ agrees that this is the lowest VOC content currently feasible for general adhesives.
TEA's recommended 70 g/l or lower limit for contact adhesives is also not the limit included in EPA's CTG, which is 250 g/l. The non-contingency limit at §115.473(a) is consistent with the CTG limit, but the contingency limit in existing and adopted §115.473(e) and (f) will lower that limit to 80 g/l if triggered for SIP contingency purposes. This matches the SCAQMD limit, and TCEQ agrees that this is the lowest VOC content currently feasible for general contact adhesives.
No changes were made in response to this comment.
Comment
TEA recommended the use of application methods and equipment to minimize VOC emissions, including systems that use brush, roll coat, and automated spray application methods.
Response
Existing control requirements for industrial adhesives require use of high transfer efficiency application methods that limit VOC emissions. These methods, outlined in §115.473(b), include electrostatic spray, high-volume, low-pressure spray (HVLP), flow coat, roll coat, hand application (including brush coat), dip coat, airless spray, and air-assisted airless spray. Other application methods must be equivalent or more efficient than HVLP spray applications.
No changes were made in response to these comments.
Comment
TEA recommended the implementation of monitors and detectors such as the Continuous Emissions Monitoring Systems (CEMS), photoionization detectors, and flame ionization detectors, to measure VOC concentrations continuously and accurately. TEA also commented that regular performance tests should be required to ensure properly functioning monitoring equipment.
Response
Applicable testing and monitoring requirements for miscellaneous industrial adhesives are specified in §115.475 and §115.478, which are not included in this rulemaking. This comment is outside the scope of the rulemaking.
No changes were made in response to this comment.
Comment
TEA commented that proper ventilation, maintenance of equipment, and covered storage for VOC-containing materials should be part of required work practices.
Response
Existing work practice requirements for miscellaneous industrial adhesives are outlined in §115.473(c), wherein closed containers are required for VOC-containing materials during storage and mixing. VOC-containing materials must also be transported in closed containers or pipes. If a vapor control system is in place, owner/operators must maintain and test the equipment to comply with the required capture and control efficiencies outlined in existing §115.475(3) and (4). The reductions in VOC emissions associated with the adopted rules are intended to be achieved from lowering the VOC content of industrial adhesives with the current work practices.
Comment
TEA recommended that low-VOC or VOC-free adhesives or spray equipment that meets high-efficiency transfer standards be used.
Response
Use of low-VOC adhesives are required by existing §115.473(a)(1) according to the limits in Figure: 30 TAC §115.473(a). Provisions for spray equipment that meets high-efficiency transfer standards are currently required under §115.473(b). Under a contingency triggering scenario, VOC content limits in §115.473(e) and (f) would apply, as listed in Figure: 30 TAC §115.473(e) for the DFW area and Figure: 30 TAC §115.473(f) for the HGB area. These new limits are lower for some applications and include more categories of adhesives.
No changes were made in response to this comment.
Comment
TEA recommended that detailed logs of VOC use, emissions, and maintenance be required for full transparency and accountability.
Response
Applicable monitoring and recordkeeping requirements for miscellaneous industrial adhesives sufficient to assure compliance are specified in §115.478, which was not included in this rulemaking. This comment is outside the scope of the rulemaking.
No changes were made in response to this comment.
Comment
TEA commented on the need to implement more stringent regulations for emergency releases.
Response
Establishing stricter regulations for VOC emissions during emergency releases and requiring mandatory reporting and immediate corrective actions for emergency releases are considered outside the scope of this rule revision. Emergency release reporting and corrective action provisions are found in 30 TAC Chapter 101, Subchapter F.
No changes were made in response to this comment.
Comment
TEA recommended that the commission remove or minimize the exemptions for industrial processes currently allowed to emit significant amounts of VOC without regulation. TEA commented on small facility exemptions, recommending that small facilities contributing to VOC emissions be subject to monitoring and control techniques. TEA also commented that regulations should be applicable to all regions in Texas without exemptions.
Response
The purpose of this rulemaking is to amend/add provisions intended to be included in the previous rulemaking (Project Number 2023-116-115-AI) to implement contingency plans for the 2008 ozone NAAQS nonattainment areas. The current rule, with amendments recently adopted April 24, 2024, removed the 3.0 ton per year small facility exemption to generate emission reductions needed for SIP contingency purposes. Non-exempt sites would be subject to control and other applicable requirements if the contingency measure is triggered, as requested by TEA. Additional controls beyond those needed to achieve a complete contingency plan in the DFW and HGB areas, as included in the three SIP revisions adopted April 24, 2024, the DFW 2008 Ozone NAAQS Severe Attainment Demonstration (AD) SIP Revision (Project No. 2023-107-SIP-NR), the HGB 2008 Ozone NAAQS Severe AD SIP Revision (Project No. 2023-110-SIP-NR), and the DFW-HGB 2008 Ozone NAAQS Severe RFP SIP Revision (Project No. 2023-108-SIP-NR) are outside the scope of this rulemaking. If emission reductions are needed in other areas of Texas for other purposes, the commission may consider expanding the geographic applicability of these reduced VOC content limits and remove exemptions in subsequent rulemaking.
No changes were made in response to this comment.
Comment
TEA recommended that the commission involve communities in both monitoring and decision-making processes as well as in educational initiatives.
Response
TCEQ offers several opportunities for engaging with the local community and also provides educational outreach. For example, with regard to engagement of the public in the air monitoring area, the public can comment on TCEQ's annual air monitoring network plans and five year assessments, which are posted for 30 days to gather feedback from the public before submission to EPA. TCEQ also offers educational outreach related to air quality and pollution prevention through programs like "Take Care of Texas." TCEQ strives to offer engagement opportunities to all persons, including those in vulnerable communities, and strives to ensure that all persons can participate meaningfully in TCEQ programs and activities through public participation, including appropriate accommodations when needed to ensure language access needs and Title VI of the Civil Rights Act of 1964 requirements are met.
Opportunities for local communities to engage in and provide input on this rulemaking were offered to the public by means of a virtual public hearing on July 25, 2024, at 10:00 a.m., accessible to all populations. Hearing notices were published in The Dallas Morning News and the Houston Chronicle newspapers in English and in Al Día and La Voz newspapers in Spanish. Additionally, two Spanish language interpreters were present during the public hearing and provided interpretation services to be inclusive of persons with limited English proficiency. Various methods were made available for the public to provide comments on the rulemaking. Methods included providing comments in writing by mail, fax, e-mail, and online during the comment period, which closed on July 29, 2024.
No changes were made in response to this comment.
Comment
TEA recommended that the commission provide incentives and technical assistance to facilities that transition to low-VOC adhesives and technologies.
Response
The commission offers free technical assistance to small businesses from the section, including the EnviroMentor programs. Alongside others, these programs offered by the commission may assist facilities transitioning to low-VOC adhesives and new technologies.
No changes were made in response to this comment.
Statutory Authority
The amendments are adopted under Texas Water Code (TWC), §5.102, concerning general powers; §5.103, concerning Rules; TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §7.002, concerning Enforcement Authority, which authorizes the commission to enforce the provisions of the Water Code and the Health and Safety Code within the commission's jurisdiction; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act.
The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning the State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants; and THSC, §382.021, concerning Sampling Methods and Procedures.
The adopted amendments implement TWC, §§5.102, 5.103, and 7.002; and THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, and 382.021.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 22, 2024.
TRD-202405720
Charmaine K. Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 12, 2024
Proposal publication date: July 19, 2024
For further information, please call: (512) 239-2678
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to 30 Texas Administrative Code (TAC) §§230.1 - 230.11.
Sections 230.1, 230.3, 230.4, 230.5, 230.8, 230.10, and 230.11 are adopted with changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3696) and will be republished. Sections 230.2, 230.6, 230.7, and 230.9 are adopted without changes to the proposed text and will not be republished.
Background and Summary of the Factual Basis for the Adopted Rules
The purpose of this rulemaking adoption is to implement the provisions of Senate Bill (SB) 2440, passed during the 88th Texas Legislature's Regular Session in 2023. Local Government Code (LGC) §212.0101 and §232.0032 establish requirements for groundwater availability certification in the municipal and county plat application and approval process for proposed subdivisions when the groundwater beneath the land serves as the source of water supply. SB 2440 amended §212.0101(a) and §232.0032(a) to make groundwater availability certification a mandatory component of the plat application and approval process. SB 2440 also established specific circumstances under which a municipal or county authority may waive the certification requirement by adding §§212.0101(a)(1) and (a)(2) and §§232.0032(a)(1) and (a)(2). SB 2440 became effective on January 1, 2024, and requires that existing commission rules are continued in effect for plat applications filed before January 1, 2024.
The charge to TCEQ under LGC, §§212.0101(b) and (c) and §§232.0032(b) and (c) is limited to adopting rules that establish the form and content of a groundwater availability certification and require transmittal of specific information to the Texas Water Development Board and the applicable groundwater conservation district. Currently, 30 TAC §230.1 and §§230.3 - 230.11 include references to applicability and have embedded forms. Since applicability is addressed by LGC §§212.0101(a), (a)(1) and (a)(2) and §§232.0032(a), (a)(1) and (a)(2) and TCEQ is not charged by statute with further defining applicability, the adopted rulemaking replaces applicability provisions with general provisions that identify the purpose of the rule. And since the current rules specify transmittal requirements and groundwater availability certification contents, the adopted rulemaking removes the embedded forms and replace those with references to TCEQ forms so that the format of the forms can be updated as technology changes.
During rule proposal, the commission received several comments relating to waiver requirements. Specifically, stakeholders recommended the commission define the term "credible evidence" in rule. After further evaluation of the statute, the commission concluded that the statute does not charge TCEQ with defining applicability or waiver requirements. Because the statute defines applicability and waiver requirements and "credible evidence" is a part of waiver requirements as defined by LGC §§212.0101(a-1)(1) and 232.0032(a-1)(1), a definition was not included in the rule adoption.
Many comments were received that requested amendments or additions to the rules that are outside of the scope of this rulemaking. Although changes to the rule cannot be made based on these comments, the commission reviewed the merits of the comments, and provided responses where appropriate.
Some commentors requested amendments requiring groundwater district contact information to be submitted as part of the groundwater availability certification. Other comments were received requesting non-substantive clarifications of proposed and existing rule language. Changes to the rules were made in response to these comments.
Some comments supported the removal of embedded forms from the rule and replacing those with references to TCEQ forms so that the format of the forms can be updated as technology changes. Comments on the new TCEQ forms were also received and, where appropriate, changes to those forms were made in response to those comments.
Section by Section Discussion
§230.1, Applicability
LGC, §§212.0101(b) and (c) and §§232.0032(b) and (c) charge the commission with adopting rules that establish the form and content of a groundwater availability certification and require plat applicants to transmit specific information to the Texas Water Development Board and any applicable groundwater conservation district. TCEQ adopts amendments to this section that eliminate the applicability provisions because those are established by LGC, §§212.0101(a), (a)(1), and (a)(2) and §§232.0032(a), (a)(1), and (a)(2). The adopted rule replaces applicability provisions with general provisions that identify the purpose of the rule consistent with LGC, §§212.0101(b) and (c) and §§232.0032(b) and (c).
The commission also adopts amendments to remove the form embedded at §230.1(c)(2) and instead require submittal of Plat Attesting Form (TCEQ-20983). Removing the form from the rule allows for the format to change with technology over time. Conforming changes are adopted throughout 30 TAC §230.1.
§230.1(a) is adopted with changes to the proposed text to add new language at the end of the paragraph to clarify the purpose of the rule: ", which requires certification that adequate groundwater is available for a proposed subdivision if groundwater under that land is to be the source of water supply."
§230.2, Definitions
The adopted amendment removes the definition of "executive administrator" at §230.2(6), because "executive administrator" is not used independently from "of the Texas Water Development Board" within the chapter and, therefore, the definition is not necessary.
§230.3, Certification of Groundwater Availability for Platting
The adopted amendment makes conforming changes where these sections reference the provisions modified at §230.1. The adopted amendment also removes the form embedded at §230.3(c) and instead requires submittal of Certification of Groundwater Availability for Platting Form (TCEQ-20982). Removing the form from the rule allows for the format to change with technology over time. Conforming changes are adopted throughout 30 TAC §230.3.
Section 230.3(c) is adopted with changes to the proposed text to add clarifying language following the word "certification": "...of adequacy of groundwater under the subdivision required by this chapter..."
§230.4, Administrative Information
The commission adopts amendments to §230.4 to make a conforming citation where the plat applicant "must" now follow 30 TAC Chapter 230 rules, rather than "may" or "shall" follow 30 TAC Chapter 230 rules. The word "must," now replaces "may" and "shall," throughout §230.4. Additionally, amendments are adopted that make conforming changes where these sections reference the provisions modified at §230.1 and §230.3.
The commission adopts amendments to require an email address along with the existing contact information required by this section.
Section 230.4 is adopted with changes to the proposed text to add new §230.4(8) to require the name, address, phone number, email address, and facsimile number of the applicable groundwater conservation district(s).
§§230.5 - 230.11
The commission adopts amendments to §§230.5 - 230.11 to make a conforming citation where the plat applicant "must" now follow 30 TAC Chapter 230 rules, rather than "may" or "shall" follow 30 TAC Chapter 230 rules. The word "must," now replaces "may" and "shall," throughout §§230.5 - 230.11. Additionally, the commission adopts amendments that make conforming changes where these sections reference the provisions modified at §230.1 and §230.3.
Section 230.5(6) is adopted with changes to the proposed text to replace "which" with "must."
§230.8(a) is adopted with changes to the proposed text to add the TCEQ form number after the form title.
§230.10(c) is adopted with changes to the proposed text to clarify the information needed to determine the parameters of the aquifer(s) being considered to supply water to the proposed subdivision.
§230.11(b) is adopted with changes to the proposed text to replace "basis" with "conditions."
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking in consideration of the regulatory analysis requirements of Texas Government Code (TGC), §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 Texas Administrative Procedure Act. A "Major environmental rule" is a rule that is specifically intended 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.
This rulemaking does not meet the statutory definition of a "Major environmental rule" because it is not the specific intent of the rule to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the adopted rulemaking is to implement legislative changes enacted by SB 2440, which requires groundwater certification during the platting process.
In addition, the rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted rule will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, nor the public health and safety of the state or a sector of the state. The cost of complying with the adopted rule is not expected to be significant with respect to the economy.
Furthermore, the adopted rulemaking is not subject to TGC, §2001.0225 because it does not meet any of the four applicability requirements listed in TGC, §2001.0225(a). There are no federal standards governing groundwater certification in the plat application and approval process. Second, the adopted rulemaking does not exceed an express requirement of state law. Third, the adopted rulemaking 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. Finally, the adopted rulemaking is not an adoption of a rule solely under the general powers of the commission, as SB 2440 requires the adopted rules.
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received on the Draft Regulatory Impact Analysis Determination.
Takings Impact Assessment
The commission evaluated the rulemaking adoption and performed an assessment of whether the adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The specific intent of the adopted rulemaking is to implement legislative changes enacted by SB 2440, which requires groundwater certification during the platting process, with certain exceptions. The adopted rulemaking substantially advances this purpose by amending the Chapter 230 rules to incorporate the new statutory requirements.
Promulgation and enforcement of this adopted rule will be neither a statutory nor a constitutional taking of private real property. The adopted rule does not affect a landowner's rights in private real property because this rulemaking does not relate to nor have any impact on an owner's rights to property. The adopted rule will primarily affect landowners who plan to use only groundwater to supply water for subdivisions. This will not be an effect on real property. Therefore, the adopted rulemaking will not constitute a taking under TGC, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §§29.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §29.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program.
The commission invited public comment regarding the Consistency with the Coastal Management Program during the public comment period. No comments were received on the Consistency with the Coastal Management Program.
Public Comment
The commission held a public hearing on June 24, 2024 and the comment period closed on June 25, 2024. The commission received comments from Approach Environmental (Approach), Bluebonnet Groundwater Conservation District (GCD), CenterPoint Committee for Growth and Progress (CPCGP), Clearwater Underground Water Conservation District (CUWCD), Environmental Defense Fund (EDF), Greater Edwards Aquifer Alliance (GEAA), Headwaters GCD, Hill Country Alliance (HCA), Kerr County Engineering (Kerr County), Middle Trinity GCD (MTGCD), Northern Trinity GCD (NTGCD), Parker County Commissioners Court (Parker County), Prairielands GCD, Texas Alliance of Groundwater Districts (TAGD), Texas Association of Builders (TAB), Texas Groundwater Association (TGWA), Texas Rural Water Association (TRWA), Upper Trinity GCD (UTGCD), and Wise County Commissioners Court (Wise County).Response to Comments
Miscellaneous
Comment 1
TAGD, Upper Trinity GCD, and Prairielands GCD expressed their support for removing the form content language from the rule and providing a separate form that can be updated.
Response 1
The commission acknowledges this comment.
Comment 2
Prairielands GCD requested the rule set out the waiver criteria within the language of the rule, commenting that many platting authorities, applicants, and technical professionals will only look at the rule for guidance rather than the statute.
Response 2
The commission disagrees with this comment. The commission amended this section to eliminate the applicability provisions because those are established by Local Government Code (LGC), §§212.0101(a), (a)(1), and (a)(2) and §§232.0032(a), (a)(1), and (a)(2). The statute only identifies two charges for TCEQ: develop rules to establish the form and content of a certification to be attached to a plat application; and require a plat applicant to transmit certain information to the Texas Water Development Board and any applicable groundwater conservation district(s). Therefore, it is appropriate to reference the LGC in the rule rather than including specific applicability criteria in the rule. Additionally, since the waiver criteria are set out in the statute, it is appropriate that the rule reference the LGC rather than include specific criteria. No change was made in response to this comment.
Comment 3
Prairielands GCD commented that the rule should clarify that a waiver for subdivisions supplied with groundwater from the Gulf Coast Aquifer or the Carrizo-Wilcox Aquifer must be determined based on the boundaries of those aquifers as delineated by TWDB.
Response 3
The commission disagrees with this comment. As discussed in Response 2, the waiver requirements in the statute are part of the applicability requirements that were removed from the rule, as the statute only directs the commission to develop a rule establishing the form and content of the groundwater availability certification form. No change was made in response to this comment.
Comment 4
UTGCD requested that TCEQ correct a statement in the "Background and Summary of the Factual Basis for the Proposed Rules" section of the rulemaking to remove the term "primary" from the phrase "when the groundwater beneath the land serves as the primary source of water supply."
Response 4
The commission agrees with this comment and removed the word "primary" to be consistent with the language in LGC §§212.0101(a) and 232.0032(a).
Comment 5
Approach Environmental requested TCEQ add the constant drawdown pumping test method to the rule, which currently includes only a constant rate pumping test. The commentor stated that the constant drawdown method may be especially useful in low yield formations, fractured rock, or where the available drawdown is limited.
Response 5
Modification of this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. However, the commission did review the references provided and notes that in a constant drawdown aquifer test, the transmissivity estimate is within an order of magnitude; and the determination of the coefficient of storage cannot be accepted as it is highly sensitive to experimental error. The constant drawdown aquifer test would not be an appropriate method to add to the rule.
Comment 6
Bluebonnet GCD and GEAA requested the rule incorporate the latest TWDB-approved groundwater availability model. Bluebonnet GCD stated that the recent models incorporate the best available science and are beneficial because they account for a longer time span of 50 years, as opposed to 30 years described in 30 TAC Chapter 230. In addition, the Bluebonnet GCD stated that these models should be recognized within the rule or on the Groundwater Availability Certification form. GEAA stated they strongly support using the best available science within the Groundwater Availability Certification process and recommended TCEQ insert language requiring the use of the most current TWDB-approved groundwater availability model during the certification process, prior to approval.
Response 6
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. When developing the Groundwater Availability Certification, the licensed professional engineer or licensed professional geoscientist should determine which available information should be included.
Comment 7
Two commentors requested changes to the rule to assess cumulative impacts to groundwater:
Bluebonnet GCD requested that the rule require applicants to identify the cumulative impact of single wells on multiple subdivision lots as part of the Groundwater Availability Certification. Examples of cumulative impacts include drawdown, well interference, and subsidence, which could result in a need to tie into a PWS or find a new water supply. The commentor mentioned the Wilmeth Plat Analysis as an example that could be used on any scale of subdivision, stating that it includes common practices and techniques of professional engineers and professional geoscientists and relies on readily available data from groundwater availability models, which are not recognized in the current rule.
GEAA recommended TCEQ require a cumulative impacts assessment during the Groundwater Availability Certification process, prior to approval. GEAA stated that this impacts assessment should include an analysis of the cumulative impact of single wells across multiple subdivision lots and the impact of residential and non-residential development outside of the proposed subdivision on the availability of groundwater supplies.
Response 7
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission recognizes that cumulative impacts are a concern and encourages GCDs and TWDB to monitor incoming Groundwater Availability Certifications submitted by licensed professional engineers (PEs) or licensed professional geoscientists (PGs).
Comment 8
Clearwater UWCD requested TCEQ remove the requirement for drilling and completing an observation well from §230.8(c).
Response 8
Removing this requirement from the rule is outside of the scope of this rulemaking. No change was made in response to this comment. The commission disagrees with this requested amendment because an observation well is needed to determine the coefficient of storage. Estimating the coefficient of storage for a Groundwater Availability Certification is not sufficient.
Comment 9
EDF and HCA commented that given the increased pressure on groundwater resources in rural Texas and the fact that groundwater is often the only source of water for many rural communities as well as for agriculture, it is critical that the Groundwater Availability Certification rules be strengthened to provide local governments and developers with accurate groundwater data and information to make informed decisions about whether there is sufficient groundwater to accommodate development.
Response 9
The scope of this rulemaking was limited to the implementation of SB 2440, 88th Texas Legislature, and these comments are outside of the scope of this rulemaking. No changes were made in response to this comment. The commission recognizes the importance of groundwater in rural Texas and asserts that the existing requirements are sufficient for the licensed professional engineer or geoscientist to determine if sufficient groundwater is available. The commission encourages platting authorities and developers to work with applicable local groundwater conservation districts, TWDB, the licensed PE or PG, and other professionals to determine whether there is sufficient groundwater available for the subdivision.
Comment 10
EDF recommended that counties, especially those in PGMAs, be allowed in this rule to require new developments to prove long-term groundwater sustainability, not just 30-year water availability, so that the groundwater resources of Texas, and the unique communities that rely on them, can be preserved for multiple generations to come.
Response 10
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
Comment 11
Several commentors requested changes to the existing rule to reflect that the rule is no longer optional but required. Examples are to replace "shall" with "must," where appropriate; and to remove the phrase "if required by the municipal or county authority" when referring to delivery of the groundwater availability certification or supporting data.
Response 11
The commission acknowledges these comments and notes that the proposed rule package replaced "shall" with "must" throughout. No additional changes were made to the adopted rule package.
Comment 12
EDF suggested clarifying that all data, calculations, and information shall be provided in a format that allows for the replication of results (§§230.1(c), 230.6(d), and §230.8(d)).
Response 12
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The rule (§230.3) requires that a licensed professional geoscientist or licensed professional engineer prepare and sign the Certification of Groundwater Availability for Platting, which effectively attests to the accuracy and replicability of the information.
Comment 13
CPCGP commented that "full build out" assumptions are likely to be inadequate if focused only on the new subdivision and not the broader existing subdivision in which the new subdivision is located. For example, if every owner in an existing subdivision were to further subdivide their lots, then "full build out" would look quite different. At a minimum, CPCGP stated that this should be addressed in the assumptions where new development is the result of subdividing existing development.
Response 13
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission understands that in some cases the full build-out assumptions may be inadequate for the reasons listed. However, this issue is site-specific and should be resolved by the applicant, the platting authority, and the licensed professional engineer or licensed professional geoscientist who certifies the Groundwater Availability Certification.
Comment 14
CPCGP requested that TCEQ clarify how the proposed rules relate to a public water system (PWS). The commentor stated that some developers are avoiding the requirements with "workarounds," using historical, non-site specific, and irrelevant data; and stated that a groundwater availability study under 30 TAC Chapter 230 should be prepared for all PWSs.
Response 14
A change to this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
To clarify, 30 TAC §230.10(c), requires subdivisions utilizing individual water wells on individual lots to meet the requirements described in §230.8, relating to Obtaining Site-Specific Groundwater Data; but §230.8 also states that if the proposed method of water distribution is expansion of an existing PWS or installation of a new PWS, then site specific groundwater data must be developed under the requirements of 30 TAC Chapter 290, Subchapter D. The requirement to follow 30 TAC Chapter 290, Subchapter D rules for PWSs are in lieu of - and not in addition to - 30 TAC Chapter 230.
Regarding the request to require a study under 30 TAC Chapter 230 for all public water systems, the commission recognizes that PWSs have different requirements than private well owners. 30 TAC Chapter 290 requires that PWS wells meet strict well construction guidelines. In addition, the rules require each proposed new PWS to submit an engineering report describing the project and how the PWS plans to meet TCEQ's required minimum water system capacities. PWSs are also subject to periodic inspections by TCEQ, which includes verifying well conditions and capacity.
Comment 15
CPCGP commented that TCEQ could ask TWDB to keep a database of all groundwater availability studies, which could be used for planning and for use by developers to support new subdivisions where relevant provisions apply.
Response 15
This request is outside of the scope of this rulemaking. No changes were made in response to this comment. TCEQ forwarded this comment and request to TWDB.
§230.1.
Comment 16
TAGD, Middle Trinity GCD, and Northern Trinity GCD suggested TCEQ add language to this subsection regarding obtaining a waiver.
Response 16
See Response 2. No change was made in response to this comment.
Comment 17
Middle Trinity GCD requested TCEQ add "Purpose and.." before the word "Applicability" to the title of this section.
Response 17
In the rule proposal, the commission removed the specific applicability requirements and updated the title of this section to be "General." A subsection entitled "Purpose" was added to §230.1(a) during the rule proposal. No changes were made in response to this comment.
Comment 18
CPCGP recommended that in §230.1, the following language be used:
"(a) Purpose. This chapter establishes the form and content of a certification to be attached to a plat application that requires certification that adequate groundwater is available for a proposed subdivision if groundwater under that land is to be the source of water supply."
Response 18
The commission agrees that adding language from the statute in this introductory paragraph would add clarity, and has updated §230.1(a) as follows:
"(a) Purpose. This chapter establishes the form and content of a certification to be attached to a plat application under Texas Local Government Code, §212.0101 or §232.0032, which requires certification that adequate groundwater is available for a proposed subdivision if groundwater under that land is to be the source of water supply."
Comment 19
Texas Rural Water Association (TRWA) requested that §230.1(b) be revised to add §230.1(b)(3), to require that copies of any information provided to TWDB and applicable GCD(s) must also be provided to the applicable water utility. TRWA comments that developers do not routinely consult with the water utilities regarding groundwater availability and accessibility, and that the utilities need sufficient notice of a possible increase in groundwater demand. TRWA also requested that TCEQ add §230.1(c)(3) to require the plat attesting form be submitted to the applicable water utility.
Response 19
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission encourages the commentor to work with TWDB, applicable groundwater conservation districts, platting authorities, and utilities to share information.
Comment 20
TAGD requested edits to §230.1(b), relating to "Use of this chapter," including removing the phrase "If required by the municipal or county authority," from the first sentence and adding to the end of the last sentence the phrase "which may include, among other things, production limitations and well spacing requirements."
Response 20
In the rule proposal, the commission removed the applicability provisions described in §230.1(b) and instead referred to the LGC. No changes were made in response to this comment.
Comment 21
TAGD requested that TCEQ revise §230.1(c) (§230.1(b)) in the proposed rule) to include "Verification and" before the phrase "Transmittal of data."
Response 21
The commission disagrees with this comment. The commission asserts that adding the phrase "verification and" does not add clarity to the rule and therefore no change was made.
Comment 22
TAGD, Middle Trinity GCD, and Northern Trinity GCD requested that §230.1(c)(2) (§230.1(b)(2) in the proposed rule) be revised to require the plat applicant to attest that the information provided to meet the rule requirements is accurate and that a completed copy of the form must be submitted as part of an applicant's plat application and submitted to the platting authority prior to approval of the plat application.
Response 22
The commission disagrees with this comment. The rule at §230.1(c) requires the Plat Attesting Form (TCEQ-20983) be submitted with the groundwater availability certification. The current form requires the plat applicant to attest that the required information has been provided in accordance with 30 TAC Chapter 230. This form does not currently have a location for a signature, so for clarity the Plat Attesting Form (TCEQ-20983) will be updated to include a location for the plat applicant's signature following the certification statement. The commission notes that a Texas licensed professional engineer or licensed professional geoscientist must sign the Groundwater Availability Certification for Platting form (TCEQ-20982), which effectively attests to the accuracy of the information. No additional changes were made in response to the comment.
§230.2.
Comment 23
Middle Trinity GCD and Northern Trinity GCD requested TCEQ revise the definition of "Applicable groundwater conservation district or districts" to remove (A) related to having authority to regulate well spacing.
Response 23
The commission disagrees with this comment. The definition for "applicable groundwater conservation district or districts" used in the rule is consistent with the definition for "district" in the Texas Water Code (TWC), Chapter 36, related to Groundwater Conservation Districts. The statute, TWC §36.001(1), defines "District" as "any district or authority created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, that has the authority to regulate the spacing of water wells, the production from water wells, or both." No changes were made in response to this comment.
Comment 24
TRWA requested TCEQ add the following definition, as part of their general comment to require applicants to submit the groundwater platting application to TWDB and applicable GCDs:
"(2) Applicable Water Utility - any entity that has the authority to provide retail water service to any part of the plat applicant's proposed subdivision."
Response 24
See response to comment 19. No change was made in response to this comment.
Comment 25
TAGD requested that the following language be added to the end of the definition for "Aquifer test" at §230.2(3):
"(3) ... All aquifer tests required under this chapter, including the drilling, construction, operation and conversion or closure of any wells used to conduct such aquifer test, must be completed in accordance with the rules of the Texas Department of Licensing and Regulation and the applicable groundwater conservation district or districts."
Middle Trinity GCD and Northern Trinity GCD also requested TCEQ revise this definition, and requested the following addition:
"(3) ... All aquifer tests required under this chapter must be completed in accordance with the rules of the applicable groundwater conservation district or districts."
Response 25
Modifying this definition is outside of the scope of this rulemaking. No changes were made in response to this comment. Applicants must follow any relevant rules, including those of the Texas Department of Licensing and Regulation and the applicable GCD(s); but it is not necessary to include such statements in this rule.
Comment 26
The following commentors provided specific language for TCEQ to consider as a definition for credible evidence related to obtaining a waiver, referencing §230.1 of the proposed rule: Middle Trinity GCD, Texas Alliance of Groundwater Districts (TAGD), Bluebonnet GCD, Environmental Defense Fund (EDF); Greater Edwards Aquifer Alliance (GEAA), Hill Country Alliance (HCA), Clearwater UWCD, Prairielands GCD, and Northern Trinity GCD.
TAGD, Bluebonnet GCD, EDF, GEAA, HCA, and Northern Trinity GCD requested TCEQ add the following definition:
"at a minimum the results of an aquifer test demonstrating sufficient groundwater availability that was completed no more than 3 years before the date of the plat application within a ¼-mile radius of the proposed subdivision and was conducted in compliance with any applicable rules of any groundwater conservation district in which the proposed subdivision will be located, and any other information required under the rules of such groundwater conservation district and the municipal or county authority, the municipal or county authority determines that sufficient groundwater is available and will continue to be available to the subdivision tract of land."
In addition, TAGD commented that the proposed definition would ensure the evidence presented for a waiver would be recent and relevant to the specific location of the subdivision. Bluebonnet GCD requested that in the absence of adding a definition for credible evidence, TCEQ provide a list of factors or characteristics that could be considered in determining whether evidence provided by plat applicants is credible. Bluebonnet GCD commented that even a general outline would be useful but maintains some type of framework is important. EDF and HCA also commented that without guidance, counties and municipalities do not have the experience or expertise to evaluate what may constitute credible evidence.
Clearwater UWCD requested TCEQ add the following definition of credible evidence:
"A written statement from the applicable groundwater conservation district stating "sufficient groundwater is available and will continue to be available to the subdivided tract of land." If the tract is not within a groundwater conservation district, a report on the local groundwater availability prepared by a licensed professional engineer or geoscientist with a conclusion stating "sufficient groundwater is available and will continue to be available to the subdivided tract of land."
Middle Trinity GCD requested that credible evidence be defined as follows:
"A written statement from the applicable groundwater conservation district confirming that "sufficient groundwater is available and will continue to be available to the subdivided tract of land." If the tract is outside a groundwater conservation district, a report on local groundwater availability prepared by a licensed professional engineer or geoscientist must conclude that "sufficient groundwater is available and will continue to be available to the subdivided tract of land."
Prairielands GCD requested that the rule establish a minimum statewide standard for credible evidence and commented that without such a standard, counties and municipalities may be lobbied by plat applicants to bypass costly Groundwater Availability Certification requirements, possibly leaving homeowners without adequate groundwater supplies. They assert that during the legislative process for this rule, the language in the statute was left open-ended to gain consensus, with the expectation that the rulemaking would address such outstanding issues. Prairielands GCD also commented that credible evidence should require, at a minimum, a pump test, conducted on the tract proposed to be subdivided, utilizing a well that is no more than six months old. Similar to the paraments established in §230.8 for conducting aquifer testing, the district stated the rule should establish certain parameters for conducting pump tests and allow the results to be considered as credible evidence of sufficient groundwater availability.
Response 26
The commission disagrees with these comments. No changes were made in response to this comment. The LGC §§212.0101(a) and 232.0032(a) establish the requirement for plat applicants to include information on groundwater availability as part of their application. LGC §§ 212.0101(a-1) and 232.0032(a-1) provide an option for the platting authority (municipality or county) to waive the Groundwater Availability Certification requirements in certain cases if, based on credible evidence of groundwater availability in the vicinity of the proposed subdivision, the municipal authority or commissioner's court determines that sufficient groundwater is available and will continue to be available to the subdivided tract of land.
The charge to the commission under LGC §§212.0101(b) and (c) and §§232.0032(b) and (c) is limited to adopting rules that establish the form and content of a Groundwater Availability Certification and that require transmittal of specific information to the Texas Water Development Board and any applicable groundwater conservation district. The statute does not charge the commission with further defining either applicability or waiver requirements, and "credible evidence" is a part of waiver requirements. The platting authority must determine whether a waiver is appropriate, including what constitutes credible evidence.
Comment 27
Upper Trinity GCD, Parker County Commissioners Court (PCCC), and Wise County Commissioners Court (WCCC) requested TCEQ provide guidance on how to consider "credible evidence" for the purpose of obtaining a waiver. Upper Trinity GCD additionally encouraged TCEQ to at least outline a few items that could be submitted as credible evidence, believing it would help many people make decisions and would help landowners exercise their property rights and develop their property with the assurance to future purchaser there still is water below the property.
Response 27
See Response 26. No changes were made in response to this comment.
Comment 28
Texas Groundwater Association (TGWA) commented that any statements of credible evidence be addressed by the local GCD, or by TWDB in jurisdictions which do not have a GCD. TGWA commented that they recognize the need for effective groundwater management to ensure future availability and desire that access to groundwater be treated fairly and with minimal government intervention.
Response 28
See Response 26. No change was made in response to this comment.
Comment 29
TAB commented that they oppose including a definition for "credible evidence" and that it is beyond the scope of Texas statutes.
Response 29
See Response 26. No change was made in response to this comment.
Comment 30
Kerry County Engineering requested TCEQ add definitions for "expansion of an existing public water supply system" and "groundwater under the subdivision."
Response 30
Adding definitions for "expansion of an existing public water supply system" and "groundwater under the subdivision" is outside of the scope of this rulemaking. No changes were made in response this this comment. 30 TAC Chapter 290, Subchapter D defines public water system (PWS). The commission maintains that an "expansion" of a PWS as well as "groundwater under the subdivision" are self-evident and do not require further definition.
Comment 31
Prairielands GCD requested TCEQ add a definition for pump test to the rule:
"Pump test - a test in which a well, drilled within 6 months of the date of the plat application on the tract proposed to be subdivided, is pumped at a controlled rate to assess hydraulic properties of an aquifer system, the results of which shall include water-levels prior to pumping and flow rate, drawdown, and recovery conditions at 5 minute increments (or less) for the entirety of the pump test and until water-levels have recovered to at least 95% of static water-levels."
Response 31
Adding a definition for "pump test" is outside of the scope of this rulemaking. No changes were made in response this this comment. The commission asserts that adding and defining the term "pump test" to the current rule is not necessary. The rule includes a definition for aquifer test, which is sufficient for the purpose of this rulemaking.
§230.3.
Comment 32
CPCGP recommended the following update to §230.3(c):
"Submission of information. The certification of adequacy of groundwater under the subdivision required by this chapter must be submitted to the following...''
Response 32
The commission agrees and has added the requested language to §230.3(c).
Comment 33
Bluebonnet GCD requested that TCEQ update the Groundwater Availability Certification for Platting form to add "Groundwater Management Area Desired Future Condition adoption, and groundwater availability model" to the note on number 18 of the form: "General Groundwater Resource Information (30 TAC §230.7)."
Response 33
The Groundwater Availability Certification for Platting form is no longer incorporated into the rule. However, this question on the Groundwater Availability Certification for Platting form includes information that a user may refer to for obtaining aquifer information. The commission agrees that the requested reference could be helpful and therefore it was added as a reference to the note on number 18 of the Groundwater Availability Certification for Platting form (TCEQ-20982). No change was made to the rule in response to this comment.
Comment 34
Bluebonnet GCD commented that the general principles in the following sentence from §230.8(c) could be applied within the Groundwater Availability Certification for Platting form: "The aquifer test must provide sufficient information to allow evaluation of each aquifer that is being considered as a source of residential and non-residential water supply for the proposed subdivision." Bluebonnet GCD encouraged emphasizing and focusing on the evaluation of potential impacts such as drawdown (individually and cumulatively), subsidence, and spring flow; and states that the collection and review of this information in the planning state should provide clarity on the best practice to implement, individual wells and their minimum well depth or centralized distribution system and minimize costly alternative supply installation after the fact.
Response 34
The Groundwater Availability Certification for Platting form is no longer incorporated into the rule. However, the commission agrees that including the referenced sentence from §230.8(c) may be helpful to include on the form and will update the form to include this information. No change was made to the rule in response to this comment.
Comment 35
Related to §230.8(c)(8), Bluebonnet GCD stated that it is critical to adequately review and analyze potential impacts of the proposed subdivision in order to demonstrate groundwater availability. Bluebonnet GCD suggested that their district's guidance documents could provide standards and expectations for the investigations and reports to inform review and analysis. The district commented that these general principles could be applicable and applied within the TCEQ form.
Response 35
Adding the district's documents is outside the scope of this rulemaking. No change was made to the form or the rule in response to the comment. TCEQ may develop a list of resources that can be included on its webpage, which could include evaluating and linking existing guidance documents such as the district's.
Comment 36
CPCGP and Headwaters GCD commented on the choice of "Yes," "No," and "Not applicable" on the Groundwater Availability Certification for Platting Form (TCEQ-20982). CPCGP noted that in Questions 29 through 35 of the form, a certifying engineer is given the choice to claim either "yes" or "no" (or N/A) when asked if the required aquifer parameters under §230.10(c) have been determined; and commented that the "No" and "N/A" choices should be removed from the form given their comments on §230.10(c), the changes made by TCEQ at §230.7(b), and the groundwater availability requirement that must be determined under §230.10(d) for both individual and PWS. Similarly, Headwaters GCD stated they have seen Table 8 (§230.3) included in water availability studies where the boxes are filled in "not applicable," and state that more site specific and current data is needed on both existing and new PWSs.
Response 36
The Groundwater Availability Certification for Platting form is no longer incorporated into the rule. However, the commission agrees that the licensed professional engineer or licensed professional geoscientist responsible for the Groundwater Availability Certification should provide an explanation for any question on the form where they answered "No" or "Not Applicable." In response to the comment, the commission will update the Certification of Groundwater Availability Form (TCEQ-20982) to require the answer "No" or "Not Applicable" be explained where appropriate. No changes were made to the rule in response to this comment.
Comment 37
CPCGP states that the prior version of the Certification of Groundwater Availability for Platting form asked: "34. Has the anticipated method of water delivery, the annual groundwater demand estimates at full build out, and geologic and groundwater information been considered in making these determinations? Yes/No" and notes that this provision is not included on the new form.
Response 37
The Groundwater Availability Certification for Platting form is no longer incorporated into the rule. However, the commission acknowledges that this item was unintentionally omitted and has corrected the form to include the original item 34. No changes were made to the rule in response to this comment.
Comment 38
CPCGP notes that a correction should be made to question 30 of the form, as it refers to items "a. through i. below;" however, the form's questions only go through "h."
Response 38
The Groundwater Availability Certification for Platting form is no longer incorporated into the rule. However, the commission acknowledges this typographical error and has made the noted correction to question 30 of the Groundwater Availability for Platting Form (TCEQ-20982). No changes were made to the rule in response to this comment.
Comment 39
Bluebonnet GCD commented that with respect to §230.10(b), a critical consideration in groundwater availability determinations is the cumulative impact of wells over time and after full build out. Bluebonnet GCD stated that recommending minimum well depth and considering the cumulative impact will minimize the likelihood of well interference, localized drawdown, subsidence, and the need of a centralized distribution system to resolve these impacts in the future. The district also stated that addressing pumping concentration prior to construction would significantly alleviate stress and pressure on the property owner and stated that these general principles could be applicable and applied within the TCEQ form.
Response 39
Adding these technical requirements is outside of the scope of this rulemaking, and therefore the requirements cannot be included in the form. No changes were made in response to this comment. Also see Response 7.
Comment 40
In reference to §§230.10(c) & (d), Bluebonnet GCD commented that defining aquifer parameters is important, both to understanding the susceptibility to impacts in the project area and to assist the municipal or county authority in understanding groundwater availability. Bluebonnet GCD stated that their district guideline documents for preparing hydrogeologic reports could be used as a resource and noted that such an analysis would provide the extent that drawdown would affect all wells and would provide guidance on minimum well depth. Bluebonnet GCD commented that these general principles could be applied within the TCEQ form.
Response 40
Adding the district's documents is outside the scope of this rulemaking. No change was made to the form or the rule in response to the comment. TCEQ may develop a list of resources that can be included on its webpage, which could include evaluating and linking existing guidance documents such as the district's.
Comment 41
Bluebonnet GCD noted the importance of groundwater availability determination, referencing §230.11(b), and stating that properly determining these conditions is very important and reviewing criteria to understand the potential impacts at the plat design phase can significantly reduce time, effort, and costs for construction and application. Bluebonnet GCD also stated that recommending minimum well depth is appropriate and helpful and provided information on their district guidelines on preparing hydrologic reports as a resource for both the platting authority and the developer. The commentor recommended that these general principles could be applied within the TCEQ form.
Response 41
Adding the district's documents to the form is outside the scope of this rulemaking. No change was made to the form or the rule in response to the comment. The commission notes that the comment appears to be addressing §230.11(a) and recognizes that sensible project development and best management practices are useful to understanding potential impacts of the plat design. TCEQ may develop a list of resources that can be included on its webpage, which could include evaluating and linking existing guidance documents such as the district's. Also see Response 78 related to a clarification made to the adopted rule language.
§230.4.
Comment 42
TAGD, Middle Trinity GCD, and Northern Trinity GCD suggested adding contact information for the GCD to the list of general information that must be provided for a proposed subdivision under this chapter:
"(8) the name, address, phone number, and facsimile number of the applicable groundwater conservation district or districts and the name and email address of the general manager(s) of the district(s)."
Response 42
The commission agrees to add GCD contact information to the list of general information to be provided, and added the following language to §230.4(8), which differs slightly from the requested language:
"(8) the name, address, phone number, email address, and facsimile number of the applicable groundwater conservation district or districts."
Comment 43
Related to §§230.4(3)-(5), Kerr County questions the necessity of obtaining facsimile (fax) numbers as the industry standard currently is email.
Response 43
The commission acknowledges that email is a more common communication method and added email addresses in the proposed rule. However, the commission disagrees that facsimile numbers should be removed. The commission acknowledges that communication by fax is infrequent, but the commission will continue to receive such communications and notes that there may be occasion for a platting authority to send or receive information from an applicant by fax. No change was made in response to this comment.
§230.5.
Comment 44
Kerr County commented that the word "which" should be deleted from §230.5(6).
Response 44
The commission agrees and has removed "which" from the sentence in §230.5(6). A comma was also added after "provided."
Comment 45
TAGD requested TCEQ add a new §230.5(7) to the list of information that must be provided under this subchapter, and then move the paragraph to a new §230.5(8):
"(7) if the anticipated method of water distribution for the proposed subdivision requires a permit or permit amendment under the rules of the applicable groundwater conservation district, a description of how the proposed water supply and method of water distribution complies with Chapter 36, Texas Water Code, and the rules of the applicable groundwater conservation district or districts; and
(8) any additional information required by the municipal or county authority as part of the plat application."
Response 45
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission agrees that applicants must follow any relevant rules, including those of GCDs. However, as stated in Response 25, the commission maintains that it is not necessary to include such statements in this rule.
§230.6
Comment 46
TAGD requested that TCEQ revise §230.6(d) to require that "sources of information used, and calculations performed to determine the groundwater demand estimates as required by this section" be provided to the platting authority rather than just making the information available if requested. Middle Trinity GCD also asked that the phrase "if requested" be removed.
Response 46
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
§230.7.
Comment 47
TAGD requested that the following sentence be added to the beginning of §230.7(b), related to "Geologic and groundwater information:"
"The current groundwater availability model approved by the Texas Water Development Board provides baseline geologic and groundwater information and shall be included, as supplemented by site-specific data, for consideration."
Response 47
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. While TWDB groundwater availability models have relevant data that could be used in preparing the Groundwater Availability Certification, the licensed professional engineer or licensed professional geoscientist who certifies the availability of groundwater should determine which available information should be included.
Comment 48
Bluebonnet GCD commented on §§230.7(b)(1) - (4) that geologic and groundwater information used in planning and designing the aquifer test should address potential impacts such as drawdown (individually and cumulatively), subsidence, and spring flow where applicable. Bluebonnet GCD recommended a source of this information and impact analysis in the district's Guidelines for Submitting Data and Information and the Preparation of Hydrogeologic Reports in Support of Applications for the Permitted Use of Groundwater, which describe a Phase I report that evaluates the impacts of pumping using existing data and the existing regional groundwater flow model of the area for the aquifer in which the well(s) is to be completed.
Response 48
Adding the district's documents is outside the scope of this rulemaking. No change was made to the rule in response to the comment. TCEQ may develop a list of resources that can be included on its webpage, which could include evaluating and linking existing guidance documents such as the district's. Also see Response 7.
§230.8.
Comment 49
Kerr County requested that "(TCEQ-20982)" be added as the second word of §230.8(a) for clarification purposes.
Response 49
The commission agrees with the comment and added a reference to the form number in §230.8(a).
Comment 50
Kerr County asked TCEQ's intent in requiring site-specific groundwater data to be developed under Chapter 290, Subchapter D when an expansion of an existing public water supply system or installation of a new public water supply system is the proposed method of water distribution for the proposed subdivision. The commentor noted that 30 TAC Chapter 290 does not require an observation well, nor are there requirements regarding previous pump tests. Kerr County also stated that while site-specific data generated from a Chapter 290 pump test allows one to calculate a transmissivity value, a storativity value cannot be calculated without an observation well.
Response 50
The commission acknowledges that the requirements of Chapters 230 and 290 are different; however, making this type of change is outside of the scope of this rulemaking. No changes were made in response to this comment. Also see Response 14.
Comment 51
Headwaters GCD commented that groundwater availability has become critical in Kerr County and the county is identified by TCEQ as a Priority Groundwater Management Area (PGMA). As a result, Headwaters GCD requests clarification on the form and content needed regarding existing and new PWSs. Headwaters GCD states that §230.8(a) is not clear as written and asks for confirmation whether the intent is to allow Section 290 Subchapter D in lieu of §230.8, or in addition to it. Headwaters GCD commented that bypassing §230.8 will potentially have a negative effect on Kerr County's groundwater resources.
Response 51
30 TAC §230.10(c) requires that aquifer parameters be determined under §§230.7 and 230.8 unless the development is going to be a part of a new or existing PWS, in which case 30 TAC Chapter 290 must be met. Also see Response 14. No change was made in response to this comment.
Comment 52
TAGD requested TCEQ add language to §230.8(a) as follows:
"(a) Applicability of section. This section is applicable only if the proposed method of water distribution for the proposed subdivision is individual water wells on individual lots. If expansion of an existing public water supply system or installation of a new public water supply system is the proposed method of water distribution for the proposed subdivision, site-specific groundwater data shall be developed under the requirements of Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems), rules of any applicable groundwater conservation district, and the information developed in meeting these requirements shall be attached to the form required under §230.3 of this title (relating to Certification of Groundwater Availability for Platting)."
Response 52
See Response 25. No change was made in response to this comment.
Comment 53
In §230.8(b), related to the location of existing wells, TAGD requested to remove the word "known" before "existing, abandoned, ..." and requested that the following language be added to the end of the paragraph:
"All existing, abandoned, and inoperative wells within the proposed subdivision shall be identified, located, and mapped by on-site surveys. Existing well locations shall be illustrated on the plat required by the municipal or county authority. Such wells shall be identified with applicable well permit numbers from the applicable groundwater conservation district shall be provided. Any abandoned or inoperative wells must be reported to TDLR."
Response 53
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
Comment 54
In §230.8(c)(1), related to test well and observation well(s): TAGD requested that the following sentence be added to the end of the paragraph:
"Test and observation well(s) must be constructed, operated, and subsequently closed or converted in accordance with applicable rules of TDLR and any applicable groundwater conservation district."
Response 54
See Response 25. No change was made in response to this comment.
Comment 55
In §230.8(c)(3)(B), TAGD requested TCEQ add the following sentence to the end of the paragraph:
"The municipal or county authority may require additional log types to characterize the aquifer(s) for testing purposes."
Response 55
The commission notes that the existing paragraph includes the minimum requirements for a geophysical log, and that the licensed professional engineer or licensed professional geoscientist will be able to determine if additional logs are needed to properly characterize the aquifer. No change was made in response to this comment.
Comment 56
In §230.8(c)(4), related to well development and performance, TAGD and EDF requested TCEQ add the following sentence to the end of the paragraph:
"Test and observation well(s) must be constructed, operated, and subsequently closed or converted in accordance with the applicable rules of TDLR and any applicable groundwater conservation district."
Response 56
The commission agrees that applicants should comply with relevant rules, including those of TDLR and GCDs. As stated in Response 25, the commission maintains that it is not necessary to include such statements in this rule. No change was made in response to this comment.
Comment 57
In §230.8(c)(6), related to the duration of an aquifer test and recovery, TAGD and EDF requested the following sentences added before the final sentence of the paragraph:
"Aquifer tests shall be prohibited while nearby wells are pumping and during significant rain or recharge events. To ensure water levels are static, pre-test water-level measurements shall be conducted for at least 7 days prior to commencing an aquifer test under this section."
Response 57
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
Comment 58
TAGD requested to add the following phrase to the beginning of §230.8(c)(6)(A), related to the duration of aquifer test and recovery: "Unless expressly provided otherwise by rules of the applicable groundwater conservation district." In §§230.8(c)(7)(A) and (B), related to the use of existing wells and aquifer test data, TAGD requested to add the following phrase to the beginning of each paragraph: "Unless expressly prohibited by rules of the applicable groundwater conservation district."
Response 58
See Response 25. No change was made in response to this comment.
Comment 59
EDF, CPCGP, and TAGD provided comments regarding the use of existing aquifer tests:
EDF requested TCEQ add the following language to §230.8(c)(7):
"Use of existing aquifer tests and data should be time limited: (ii) the previous test was performed no more than 3 years before the date of the plat application;" and (vi) aquifer test data from the pumping well and observation well(s) from the previous test are available and calculations of hydraulic properties can be repeated and verified, which data and calculations shall be provided with the submission in accordance with 230.1(c)."
CPCGP requested that a new condition be added to the rule to prevent outdated information from being used, and suggested the following language be added as a new item §230.8(c)(7)(v):
"(v) the previous date of the TAC 230 test used is no older than 5 years from the anticipated certification date of the current TAC 230 groundwater availability study."
TAGD requested the following language be added as a new item (ii) under §230.8(c)(7):
"(ii) the previous test was performed no more than 3 years before the date of the plat application;"
Response 59
Adding these technical requirements is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission recognizes that in most cases, recent tests are necessary to determine groundwater availability. The licensed professional geoscientist or licensed professional engineer is encouraged to use data that matches current groundwater conditions.
Comment 60
TAGD requested that TCEQ add a new item §230.8(c)(7)(B)(vi), relating to the use of existing wells and aquifer test data:
"(vi) aquifer test data from the pumping well and observation well(s) from the previous test are available and calculations of hydraulic properties can be repeated and verified, which data and calculations shall be provided with the submission in accordance with 230.1(c)."
Response 60
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission understands the benefit of demonstrating why a previous aquifer test may be appropriate but asserts that the licensed professional geoscientist or licensed professional engineer should take the appropriate information into account when preparing the groundwater availability certification for platting.
Comment 61
In §230.8(c), TAGD requested that the following language be added to the paragraph on aquifer testing:
A municipal or county authority responsible for approving plats is encouraged to consult with any applicable groundwater conservation district in establishing any site-specific aquifer test requirements.
EDF provided similar comments to encourage applicants to consult with GCDs, noting that GCDs can often provide support.
Response 61
TCEQ encourages platting authorities to communicate with GCDs and others who may have useful information on reviewing applications related to the certification of groundwater availability; but asserts that it is not necessary to include such statements in this rule. No change was made in response to this comment.
Comment 62
TAGD and EDF requested to add the following sentence to the end of §230.8(c)(7):
"A municipal or county authority responsible for approving plats is encouraged to consult with any applicable groundwater conservation district, or the TWDB if there is no groundwater conservation district, to determine the suitability of accepting the results of a previous aquifer test in lieu of a new test."
Response 62
See Response 61. No change was made in response to this comment.
Comment 63
TAGD, Middle Trinity GCD, and Northern Trinity GCD requested TCEQ update 30 TAC 230.8(c)(7)(A) and (B) to add the following phrase to the beginning of this paragraph:
Unless expressly prohibited by rules of the applicable groundwater conservation district...
Response 63
See Response 25. No change was made in response to this comment.
Comment 64
Regarding §230.8(c)(8), TAGD, Middle Trinity GCD, and Northern Trinity GCD requested TCEQ add a phrase to ensure applicants coordinate with applicable GCDs to determine if additional information is needed. Specifically, the commentors requested the edits to the final sentence of this paragraph as follows:
"...To determine if additional information is needed, in coordination with the applicable groundwater conservation district or districts, best professional judgement must be used to consider these assumptions, the site-specific information derived from the aquifer test required by this section, the size of the proposed subdivision, and the proposed method of water delivery."
Response 64
See Response 61. No change was made in response to this comment.
Comment 65
TAGD, Northern Trinity GCD, Middle Trinity GCD, and EDF requested that §230.8(d) be revised to replace the phrase "made available" with "provided" and to delete the phrase "if requested."
Response 65
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
§230.9.
Comment 66
TAGD requested TCEQ add volatile organic compounds and radionuclides, in counties where testing for naturally occurring radionuclides is required under 30 TAC Chapter 290. Middle Trinity GCD requested TCEQ add testing for total coliform bacteria, benzene, and Northern Trinity GCD asked that benzene be added. In addition, TAGD, Middle Trinity GCD, and Northern Trinity GCD requested TCEQ add testing for radionuclides in counties where testing for naturally occurring radionuclides is required under 30 TAC Chapter 290.
Response 66
Adding these technical requirements is outside of the scope of this rulemaking. No changes were made in response to this comment.
Comment 67
TAGD, Middle Trinity GCD, and Northern Trinity GCD requested the rule include specific wording as a new §230.9(a)(4) regarding how sampling information should be submitted: including the sample date, collection entity, statement of reliability, and the name of the testing laboratory, if applicable. TAGD requested that the information be submitted in a spreadsheet or table format.
Response 67
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission recognizes that an organized format for the submitted water quality data may assist platting authorities in reviewing applications, and recommends applicants communicate with the platting authority prior to submitting an application to determine how best to submit the required information.
Comment 68
TAGD, Northern Trinity GCD, and EDF requested that §230.9(b) be revised to require that the information, data, and calculations required in this section be provided to the platting authority rather than just making the information available if requested.
Response 68
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
§230.10.
Comment 69
TAGD requested that §230.10(a) be revised to add the underlined phrase to the last sentence of the paragraph:
"Groundwater availability shall be determined for ten years, 30 years, the joint planning period for the current adopted desired future conditions for aquifers under Section 36.108 of the Texas Water Code, and for any other time frame(s) required by the municipal or county authority."
Response 69
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
Comment 70
TAGD and Northern Trinity GCD requested that §230.10(c) require the listed aquifer parameters to be provided in a spreadsheet format, and Middle Trinity GCD requested that the information be provided in a spreadsheet or a tabular format.
Response 70
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission recognizes the usefulness of a common format to report aquifer parameters to different entities and encourages the platting authority and licensed professional engineer or licensed professional geoscientist to work with the GCDs and TWDB to determine the best format. The commission also encourages TAGD to work with member districts to develop a format that could be used to report Groundwater Availability Certification data.
Comment 71
CPCGP commented that the rule should require current and site-specific data through drilling to determine the status of the aquifer underlying the new subdivision for both individual wells and for PWS. CPCGP stated that they understand developers may desire to avoid drilling a new well but maintains that the rule is a minimum standard requirement that should be applied for development to proceed. CPCGP requests the following clarification to §230.10(c):
"Determination of aquifer parameters. The parameters of the aquifer(s) being considered to supply water to the proposed subdivision must be determined utilizing the information considered under 230.7 of this title (relating to General Groundwater Resource Information) and data obtained during the aquifer test required (1) under §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data) for individual water wells or (2) under Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems) for new and existing public water systems; and reported on or attached to the Certification of Groundwater Availability Form (TCEQ-20982)..."
Response 71
The commission agrees that updating the referenced paragraph would clarify that determination of aquifer parameters must be made under §§230.7 and 230.8 unless the development is going to be a part of a new or existing PWS. The language of §230.10 was updated as provided, with one change. The commission added the phrase "one of the following" to clarify there are different requirements for subdivisions using individual water wells for each lot versus PWSs. Section §230.10(c) was revised as follows:
"Determination of aquifer parameters. The parameters of the aquifer(s) being considered to supply water to the proposed subdivision must be determined utilizing the information considered under §230.7 of this title (relating to General Groundwater Resource Information) and data obtained during the aquifer test required under one of the following: (1) §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data) for individual water wells or (2) Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems) for new and existing public water systems. The parameters must be reported on or attached to the Certification of Groundwater Availability Form (TCEQ-20982)..."
Comment 72
CPCGP commented that §230.10(c) is not clear on what "or acceptable modifications thereof" means regarding the determination of aquifer parameters. CPCGP requested the phrase be further clarified or removed.
Response 72
The commission disagrees with this comment. Licensed professional engineers and licensed professional geoscientists should be aware of groundwater industry standards and the commission asserts that the rule is clear about how and which methods should be used. No changes were made in response to this comment.
Comment 73
TAGD requested TCEQ add the underlined language to §230.10(d)(3)(B) related to well interference:
"(B) determine a recommended minimum spacing limit between individual wells, minimum well depth, and minimum well yields from the wells that will allow for the continued use of the wells for the time frames identified under subsection (a) of this section."
Response 73
Adding this technical requirement is outside of the scope of this rulemaking. No changes were made in response to this comment. The commission agrees that finding and providing the recommended minimum well depth is an important part of designing an efficient well, and that the licensed professional engineer or licensed profession geoscientist preparing the groundwater availability certification should utilize appropriate resources to prevent well interference.
Comment 74
TAGD, Middle Trinity GCD, and Northern Trinity GCD requested TCEQ add the following language as a new paragraph §230.10(f):
"(f) Determination of regulatory parameters. Groundwater availability determinations shall take into account the rules of the applicable groundwater conservation district or districts, including but not limited to rules regulating certain aquifer formations, well depth, well spacing, and well permitting to reliably determine whether the available groundwater is in fact accessible under the rules of the applicable groundwater conservation district or districts. If the proposed subdivision is to be located within a designated priority groundwater management area under Chapter 35 of the Texas Water Code, then groundwater availability determinations shall take into account any water availability requirements adopted by the county to prevent current or projected water use in the county from exceeding the safe sustainable yield of the county's water supply pursuant to §35.019 of the Texas Water Code (Water Availability)."
Response 74
See Response 25. No change was made in response to this comment.
Comment 75
TAGD, Upper Trinity Groundwater Authority, Middle Trinity GCD, EDF, and Northern Trinity GCD requested that §230.10(f) be revised to replace the phrase "made available" with "provided" and to delete the phrase "if requested."
Response 75
Adding this requirement is outside of the scope of this rulemaking. No changes were made in response to this comment.
§230.11.
Comment 76
TAGD requested §230.11(a) be revised by adding the following underlined language to the existing text:
"(a) Groundwater availability and usability statements. Based on and citing to the information developed under § 230.10 of this title (relating to Determination of Groundwater Availability), the following information shall be provided as specified in § 230.3(c) of this title (relating to Certification of Groundwater Availability for Platting):"
Response 76
The commission disagrees with this comment. The commission notes that the Groundwater Availability Certification is based on information developed under §230.10, which must be provided to the platting authority as part of the report from the licensed professional engineer or licensed professional geoscientist. The phrase "and citing to" does not provide added clarity. No change was made in response to this comment.
Comment 77
TAGD, Northern Trinity GCD, and Middle Trinity GCD suggested specific language be added as a new §230.11(a)(6):
"(6) other parameters necessary to ensure compliance with the rules of the applicable groundwater conservation district(s) or groundwater availability rules adopted by a county in a designated priority groundwater management area."
Response 77
See Response 25. No change was made in response to this comment.
Comment 78
CPCGP recommends that §230.11(b) be revised with the following language in order that engineers specifically address development from an area outside the small new subdivision that cannot be predicted that will affect the storage of water in the aquifer, as well as short-term and long-term impacts from climatic variations (e.g., droughts, severity of droughts, etc.) on the aquifer:
"These basis must include, but are not limited to, uncontrollable and unknown factors such as:"
Response 78
The commission asserts that the licensed professional engineer or licensed professional geoscientist preparing and certifying the Groundwater Availability Certification would be able to make the proper determinations. No change was made in response to this comment; however, the term "basis" was changed to "conditions" for clarification.
Comment 79
TAGD, Northern Trinity GCD, and Middle Trinity GCD requested TCEQ revise the last paragraph, §230.11(c), related to Certification, to add the underlined language:
"(c) Certification. Based on best professional judgement, current groundwater conditions, applicable groundwater conservation district regulations, and the information developed and presented in the form specified by §230.3(c) of this title, the licensed professional engineer or licensed professional geoscientist certifies by signature, seal, and date that adequate groundwater is available from the underlying aquifer(s) and accessible under the rules of the groundwater conservation district(s), if applicable, to supply the estimated demand of the proposed subdivision."
Response 79
See Response 25. No change was made in response to this comment.
Statutory Authority
These amendments are adopted under Texas Water Code (TWC), §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; TWC, §5.103, which establishes the commission's general authority to adopt rules; and TWC, §5.105, which establishes the commission's authority to set policy by rule. In addition, Local Government Code, §212.0101(b) and §232.0032(b) require the commission to promulgate rules that establish the appropriate form and content of a certification to be attached to a plat application.
The adopted amendments implement the language set forth in Senate Bill 2440 from the 88th Texas Legislature.
§230.1.General.
(a) Purpose. This chapter establishes the form and content of a certification to be attached to a plat application under Texas Local Government Code, §212.0101 or §232.0032, which requires certification that adequate groundwater is available for a proposed subdivision if groundwater under that land is to be the source of water supply. These rules do not replace:
(1) other state and federal requirements applicable to public drinking water supply systems;
(2) the authority of counties within designated priority groundwater management areas under Texas Water Code, §35.019; or
(3) the authority of groundwater conservation districts under Texas Water Code, Chapter 36.
(b) Transmittal of data. Copies of the information, estimates, data, calculations, determinations, statements, and certification required by §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data), §230.9 of this title (relating to Determination of Groundwater Quality), §230.10 of this title (relating to Determination of Groundwater Availability), and §230.11 of this title (relating to Groundwater Availability and Usability Statements and Certification) must be provided with the certification to:
(1) the executive administrator of the Texas Water Development Board, and
(2) the applicable groundwater conservation district or districts.
(c) Plat Attesting Form. The Plat Attesting Form (TCEQ-20983) must be submitted with the certification, attesting that copies of the information, estimates, data, calculations, determinations, statements, and the certification have been provided to:
(1) the executive administrator of the Texas Water Development Board, and
(2) the applicable groundwater conservation district or districts.
§230.3.Certification of Groundwater Availability for Platting.
(a) Preparation of the certification. The certification required by this chapter must be prepared by a Texas licensed professional engineer or a Texas licensed professional geoscientist.
(b) Certification Requirements. The certification must meet the requirements of §§230.4 - 230.11 (relating to Certification of Groundwater Availability for Platting, Administrative Information, Proposed Subdivision Information, Projected Water Demand Estimate, General Groundwater Resource Information, Obtaining Site-Specific Groundwater Data, Determination of Groundwater Quality, Determination of Groundwater Availability, and Groundwater Availability and Usability Statements and Certification) of this chapter.
(c) Submission of information. The certification of adequacy of groundwater under the subdivision required by this chapter must be submitted to the following:
(1) the municipal or county authority,
(2) the executive administrator of the Texas Water Development Board, and
(3) the applicable groundwater conservation district or districts.
(d) Form required. The certification required by this chapter must be submitted on the Certification of Groundwater Availability for Platting Form (TCEQ-20982).
§230.4.Administrative Information.
At a minimum, the following general administrative information must be provided for a proposed subdivision for which groundwater under the land will be the source of water supply:
(1) the name of the proposed subdivision;
(2) any previous or other name(s) which identifies the tract of land;
(3) the name, address, phone number, email address, and facsimile number of the property owner or owners;
(4) the name, address, phone number, email address, and facsimile number of the person submitting the plat application;
(5) the name, address, phone number, email address, facsimile number, and registration number of the licensed professional engineer or the licensed professional geoscientist preparing the certification as required in this chapter;
(6) the location and property description of the proposed subdivision;
(7) the tax assessor parcel number(s) by book, map, and parcel; and
(8) the name, address phone number, email address, and facsimile number of the applicable groundwater conservation district or districts.
§230.5.Proposed Subdivision Information.
At a minimum, the following information pertaining to the proposed subdivision must be provided:
(1) the purpose of the proposed subdivision, for example, single family residential, multi-family residential, non-residential, commercial, or industrial;
(2) the size of the proposed subdivision in acres;
(3) the number of proposed lots within the proposed subdivision;
(4) the average size (in acres) of the proposed lots in the proposed subdivision;
(5) the anticipated method of water distribution to the proposed lots in the proposed subdivision including, but not limited to:
(A) an expansion of an existing public water supply system to serve the proposed subdivision (if groundwater under the subdivision is to be the source of water supply);
(B) a new public water supply system for the proposed subdivision;
(C) individual water wells to serve individual lots; or
(D) a combination of methods;
(6) if the anticipated method of water distribution for the proposed subdivision is from an expansion of an existing public water supply system or from a proposed public water supply system, evidence required under §290.39(c)(1) of this title (relating to Rules and Regulations for Public Water Systems) must be provided demonstrating that written application for service was made to the existing water providers within a 1/2-mile radius of the subdivision; and
(7) any additional information required by the municipal or county authority as part of the plat application.
§230.8.Obtaining Site-Specific Groundwater Data.
(a) Applicability of section. This section is applicable only if the proposed method of water distribution for the proposed subdivision is individual water wells on individual lots. If expansion of an existing public water supply system or installation of a new public water supply system is the proposed method of water distribution for the proposed subdivision, site-specific groundwater data must be developed under the requirements of Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems) and the information developed in meeting these requirements must be attached to the Certification of Groundwater Availability for Platting Form (TCEQ-20982).
(b) Location of existing wells. All known existing, abandoned, and inoperative wells within the proposed subdivision must be identified, located, and mapped by on-site surveys. Existing well locations must be illustrated on the plat required by the municipal or county authority.
(c) Aquifer testing. Utilizing the information considered under §230.7(b) of this title (relating to General Groundwater Resource Information), an aquifer test must be conducted to characterize the aquifer(s) underlying the proposed subdivision. The aquifer test must provide sufficient information to allow evaluation of each aquifer that is being considered as a source of residential and non-residential water supply for the proposed subdivision. Appropriate aquifer testing must be based on typical well completions. An aquifer test conducted under this section utilizing established methods must be reported and must include, but not be limited to, the following items.
(1) Test well and observation well(s). At a minimum, one test well (i.e., pumping well) and one observation well, must be required to conduct an adequate aquifer test under this section. Additional observation wells must be used for the aquifer test if it is practical or necessary to confirm the results of the test. The observation well(s) must be completed in the same aquifer or aquifer production zone as the test well. The locations of the test and observation well(s) must be shown on the plat required by the municipal or county authority.
(2) Location of wells. The test and observation well(s) must be placed within the proposed subdivision and must be located by latitude and longitude. The observation well(s) must be located at a radial distance such that the time-drawdown data collected during the planned pumping period fall on a type curve of unique curvature. In general, observation wells in unconfined aquifers should be placed no farther than 300 feet from the test well, and no farther than 700 feet in thick, confined aquifers. The observation well should also be placed no closer to the test well than two times the thickness of the aquifer's production zone. The optimal location for the observation well(s) can be determined by best professional judgement after completion and evaluation of the test well as provided in paragraph (4) of this subsection.
(3) Lithologic and geophysical logs. The test and observation wells must be lithologically and geophysically logged to map and characterize the geologic formation(s) and the aquifer(s) in which the aquifer test(s) is to be performed.
(A) A lithologic log must be prepared showing the depth of the strata, their thickness and lithology (including size, range, and shape of constituent particles as well as smoothness), occurrence of water bearing strata, and any other special notes that are relevant to the drilling process and to the understanding of subsurface conditions.
(B) Geophysical logs must be prepared which provide qualitative information on aquifer characteristics and groundwater quality. At a minimum, the geophysical logs must include an electrical log with shallow and deep-investigative curves (e.g., 16-inch short normal/64-inch long normal resistivity curves or induction log) with a spontaneous potential curve.
(C) The municipal or county authority may, on a case-by-case basis, waive the requirement of geophysical logs as required under this section if it can be adequately demonstrated that the logs are not necessary to characterize the aquifer(s) for testing purposes.
(4) Well development and performance. The test and observation well(s) must be developed prior to conducting the aquifer test to repair damage done to the aquifer(s) during the drilling operation. Development must ensure that the hydraulic properties of the aquifer(s) are restored as much as practical to their natural state.
(A) Well development procedures applied to the well(s) may vary depending on the drilling method used and the extent of the damage done to the aquifer(s).
(B) During well development, the test well must be pumped for several hours to determine the specific capacity of the well, the maximum anticipated drawdown, the volume of water produced at certain pump speeds and drawdown, and to determine if the observation well(s) are suitably located to provide useful data.
(C) Water pumped out of the well during well development must not be allowed to influence initial well performance results.
(D) Aquifer testing required by this section must be performed before any acidization or other flow-capacity enhancement procedures are applied to the test well.
(5) Protection of groundwater. All reasonably necessary precautions must be taken during construction of test and observation wells to ensure that surface contaminants do not reach the subsurface environment and that undesirable groundwater (water that is injurious to human health and the environment or water that can cause pollution to land or other waters) if encountered, is sealed off and confined to the zone(s) of origin.
(6) Duration of aquifer test and recovery. The duration of the aquifer test depends entirely on local and geologic conditions. However, the test must be of sufficient duration to observe a straight-line trend on a plot of water level versus the logarithm of time pumped. Water pumped during the test must not be allowed to influence the test results. Aquifer testing must not commence until water levels (after well development) have completely recovered to their pre-development level or at least to 90% of that level.
(A) At a minimum, a 24-hour uniform rate aquifer test must be conducted. Testing must continue long enough to observe a straight-line trend on a plot of water level versus the logarithm of time pumped. If necessary, the duration of the test should be extended beyond the 24-hour minimum limit until the straight-line trend is observed.
(i) If it is impractical to continue the test until a straight-line trend of water level versus the logarithm of time pumped is observed within the 24-hour limit, the test must continue at least until a consistent pumping-level trend is observed. In such instances, failure to observe the straight-line trend must be recorded.
(ii) If the pumping rates remain constant for a period of at least four hours and a straight-line trend is observed on a plot of water level versus the logarithm of time pumped before the 24-hour limit has been reached, the pumping portion of the test may be terminated.
(iii) The frequency of water level measurements during the aquifer test must be such that adequate definition of the time-drawdown curve is made available. As much information as possible must be obtained in the first ten minutes of testing (i.e., pumping).
(B) Water-level recovery data must be obtained to verify the accuracy of the data obtained during the pumping portion of the test. Recovery measurements must be initiated immediately at the conclusion of the pumping portion of the aquifer test and must be recorded with the same frequency as those taken during the pumping portion of the aquifer test. Time-recovery measurements must continue until the water levels have recovered to pre-pumping levels or at least to 90% of that level. If such recovery is not possible, time-recovery measurements should continue until a consistent trend of recovery is observed.
(7) Use of existing wells and aquifer test data.
(A) An existing well may be utilized as an observation well under this section if sufficient information is available for that well to demonstrate that it meets the requirements of this section.
(B) The municipal or county authority may accept the results of a previous aquifer test in lieu of a new test if:
(i) the previous test was performed on a well located within a 1/4-mile radius of the subdivision;
(ii) the previous test fully meets all the requirements of this section;
(iii) the previous test was conducted on an aquifer which is being considered as a source of water supply for the proposed subdivision; and
(iv) aquifer conditions (e.g., water levels, gradients, etc.) during the previous test were approximately the same as they are presently.
(8) Need for additional aquifer testing and observation wells. Best professional judgement must be used to determine if additional observation wells or aquifer tests are needed to adequately demonstrate groundwater availability. The Theis and Cooper-Jacob nonequilibrium equations, and acceptable modifications thereof, are based on well documented assumptions. To determine if additional information is needed, best professional judgement must be used to consider these assumptions, the site-specific information derived from the aquifer test required by this section, the size of the proposed subdivision, and the proposed method of water delivery.
(d) Submission of information. The information, data, and calculations required by this section must be made available to the municipal or county authority, if requested, to document the requirements of this section as part of the plat application.
§230.10.Determination of Groundwater Availability.
(a) Time frame for determination of groundwater availability. At a minimum, both a short- and long-term determination of groundwater availability must be made, each considering the estimated total water demand at full build out of the proposed subdivision. Groundwater availability must be determined for ten years and 30 years and for any other time frame(s) required by the municipal or county authority.
(b) Other considerations in groundwater availability determination. Groundwater availability determinations must take into account the anticipated method of water delivery as identified under §230.5 of this title (relating to Proposed Subdivision Information) and will be compared to annual demand estimates at full build out as determined under §230.6 of this title (relating to Projected Water Demand Estimate).
(c) Determination of aquifer parameters. The parameters of the aquifer(s) being considered to supply water to the proposed subdivision must be determined utilizing the information considered under §230.7 of this title (relating to General Groundwater Resource Information) and data obtained during the aquifer test required under one of the following: (1) §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data) for individual water wells or (2) Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems) for new and existing public water systems. The parameters must be reported on or attached to the Certification of Groundwater Availability Form (TCEQ-20982). The time-drawdown and time-recovery data obtained during the aquifer test must be used to determine aquifer parameters utilizing the nonequilibrium equations developed by Theis or Cooper-Jacob, or acceptable modifications thereof. The following aquifer parameters must be determined:
(1) rate of yield and drawdown;
(2) specific capacity;
(3) efficiency of the pumped (test) well;
(4) transmissivity;
(5) coefficient of storage;
(6) hydraulic conductivity;
(7) recharge or barrier boundaries, if any are present; and
(8) thickness of the aquifer(s).
(d) Determination of groundwater availability. Using the information and data identified and determined in subsections (b) and (c) of this section, the following calculations must be made.
(1) Time-drawdown. The amount of drawdown at the pumped well(s) and at the boundaries of the proposed subdivision must be determined for the time frames identified under subsection (a) of this section.
(2) Distance-drawdown. The distance(s) from the pumped well(s) to the outer edges of the cone(s)-of-depression must be determined for the time frames identified under subsection (a) of this section.
(3) Well interference. For multiple wells in a proposed subdivision, calculations must be made to:
(A) determine how pumpage from multiple wells will affect drawdown in individual wells for the time frames identified under subsection (a) of this section; and
(B) determine a recommended minimum spacing limit between individual wells and well yields from the wells that will allow for the continued use of the wells for the time frames identified under subsection (a) of this section.
(e) Determination of groundwater quality. The water quality analysis required under §230.9 of this title (relating to Determination of Groundwater Quality) must be compared to primary and secondary public drinking water standards and the findings documented on or attached to the Certification of Groundwater Availability Form (TCEQ-20982).
(f) Submission of information. The information, data, and calculations required by this section must be made available to the municipal or county authority, if requested, to document the requirements of this section as part of the plat application.
§230.11.Groundwater Availability and Usability Statements and Certification.
(a) Groundwater availability and usability statements. Based on the information developed under §230.10 of this title (relating to Determination of Groundwater Availability), the following information must be provided on or attached to the Certification of Groundwater Availability Form (TCEQ-20982):
(1) the estimated drawdown of the aquifer at the pumped well(s) over a ten-year period and over a 30-year period;
(2) the estimated drawdown of the aquifer at the subdivision boundary over a ten-year period and over a 30-year period;
(3) the estimated distance from the pumped well(s) to the outer edges of the cone(s)-of-depression over a ten-year period and over a 30-year period;
(4) the recommended minimum spacing limit between wells and the recommended well yield; and
(5) the sufficiency of available groundwater quality to meet the intended use of the platted subdivision.
(b) Groundwater availability determination conditions. The assumptions and uncertainties that are inherent in the determination of groundwater availability must be clearly identified. These conditions must be identified to adequately define the basis for the availability and usability statements. These conditions may include, but are not limited to, uncontrollable and unknown factors such as:
(1) future pumpage from the aquifer or from interconnected aquifers from area wells outside of the subdivision or any other factor that cannot be predicted that will affect the storage of water in the aquifer;
(2) long-term impacts to the aquifer based on climatic variations; and
(3) future impacts to usable groundwater due to unforeseen or unpredictable contamination.
(c) Certification. Based on best professional judgement, current groundwater conditions, and the information developed and presented on or attached to the Certification of Groundwater Availability Form (TCEQ-20982), the licensed professional engineer or licensed professional geoscientist must certify by signature, seal, and date that adequate groundwater is available from the underlying aquifer(s) to supply the estimated demand of the proposed subdivision.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405714
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 239-2678
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to 30 TAC §§336.2, 336.102, 336.105, 336.208, 336.329, 336.331, 336.332, 336.336, 336.341, 336.351, 336.357, 336.625, 336.701, and 336.1215 without changes to the proposed text as published in the June 28, 2024, issue of the Texas Register (49 TexReg 4710) and, therefore, will not be republished.
Background and Summary of the Factual Basis for the Adopted Rule
The commission adopts changes to Chapter 336, Subchapter D to correct a reference to Department of Transportation rules, remove an obsolete January 31, 2009 deadline for licensees to report their initial inventory of Category 1 or Category 2 nationally tracked sources, and correct an error in an equation for the "sum of fractions" methodology to ensure compatibility with federal regulations promulgated by the Nuclear Regulatory Commission (NRC) which is necessary to preserve the status of Texas as an Agreement State under Title 10 Code of Federal Regulations (CFR) Part 150 and under the "Articles of Agreement between the United States Atomic Energy Commission and the State of Texas for Discontinuance of Certain Commission Regulatory Authority and Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended." Rules which are designated by NRC as compatibility items must be adopted by an Agreement State within three years of the effective date of the NRC rules, in most cases.
The commission adopts changes to Subchapters A, D, G, and H to change the spelling of "byproduct" to "by-product" to be consistent with Texas Health and Safety Code (THSC), Chapter 401. The commission adopts changes to Subchapter H to correct the reference to a rule to correct errors. The commission adopts changes to Subchapter B to add a definition of "closure" specific to Subchapter B and add a reference to THSC, §401.271 regarding fees for commercial radioactive waste disposal for clarity. The commission adopts changes to Subchapter B to remove instructions about the annual fee for when a licensee remitted a biennial licensing fee to the Texas Department of State Health Services during the one-year period prior to June 17, 2007, to remove obsolete text. The commission adopts changes to Subchapter C and M to modify the training requirements for the Radiation Safety Officer (RSO) to provide the commission flexibility in determining adequate training for the RSO at different licensed facilities.
Section by Section Discussion
The commission adopts administrative changes throughout this rulemaking to be consistent with Texas Register requirements and agency rules and guidelines.
§336.2, Definitions
The commission adopts this rulemaking to amend §§336.2(20), 336.2(20)(B), 336.2(89)(B)(iv), 336.2(99), 336.2(126), and 336.2(170) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401.
§336.102, Definitions
The commission adopts this rulemaking to add a definition of closure specific to Subchapter B for clarity since licensing fees are different when a license is in closure. The adopted definition mirrors the definition of closure found in 30 Texas Administrative Code (TAC) §37.9035. The commission rulemaking adoption will increase the numbering of the subsequent definitions by one.
§336.105, Schedule of Fees for Other Licenses
The commission adopts this rulemaking to remove 30 TAC §336.105(g) to remove obsolete text regarding instructions for when a licensee remitted a biennial licensing fee to the Texas Department of State Health Services prior to June 17, 2007, and amend §336.105(i) and §336.105(j) to add a reference to THSC, §401.271 regarding fees for commercial radioactive waste disposal for clarity. The commission rulemaking adoption will adjust the numbering of the remaining rules accordingly.
§336.208, Radiation Safety Officer
The commission adopts the rulemaking to amend §336.208(a)(3) to modify the training requirements for the RSO from requiring at least four weeks of specialized additional training from a course provider that has been evaluated and approved by the agency to requiring additional training as determined by the Executive Director. This modification provides the commission flexibility in determining adequate training for the RSO at different licensed facilities.
§336.329, Exemptions to Labeling Requirements
The commission adopts the rulemaking to amend the reference to Department of Transportation rules in 30 TAC §336.329(4). This rule amendment is adopted to ensure compatibility with federal regulations promulgated by the NRC.
§336.331, Transfer of Radioactive Material
The commission adopts this rulemaking to amend §§336.331(a), 336.331(b), 336.331(c), 336.331(d)(5), 336.331(f), and 336.331(i) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401.
§336.332, Preparation of Radioactive Material for Transport
The commission adopts this rulemaking to amend §336.332(a) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401.
§336.336, Tests
The commission adopts this rulemaking to amend §336.336(a)(1) and §336.336(a)(4) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401.
§336.341, General Recordkeeping Requirements for Licensees
The commission adopts this rulemaking to amend §336.341(e) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401.
§336.351, Reports of Transactions Involving Nationally Tracked Sources.
The commission adopts this rulemaking to remove 30 TAC §336.351(a)(8) to remove an obsolete January 31, 2009 deadline for licensees to report their initial inventory of Category 1 or Category 2 nationally tracked sources. This rule amendment is adopted to ensure compatibility with federal regulations promulgated by the NRC.
§336.357, Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material
The commission adopts this rulemaking to amend the figure in 30 TAC §336.357(z) by correcting an error in the equation for the "sum of fractions" methodology. This rule amendment is adopted to ensure compatibility with federal regulations promulgated by the NRC.
§336.625, Expiration and Termination of Licenses
The commission adopts this rulemaking to amend §§336.625(c), 336.625(c)(1), and 336.625(i)(1) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401.
§336.701, Scope and General Provisions
The commission adopts this rulemaking to amend §336.701(b)(2) to change the spelling of "byproduct" to "by-product" to be consistent with THSC, Chapter 401 and change the reference to §336.2(13)(B) to §336.2(20)(B) to correct an error.
§336.1215, Issuance of Licenses
The commission adopts this rulemaking to amend §336.1215(a)(5) by referring to 30 TAC §336.208 for the training requirements for a RSO and removing the additional requirements in §336.1215(a)(5)(A) and (B) since these requirements are also stated in 30 TAC §336.208. The commission admends §336.1215(a)(5)(C) to remove the training requirements that the RSO have at least four weeks of specialized additional training from a course provider that has been evaluated and approved by the agency to provide the commission flexibility in determining adequate training for the RSO at different licensed facilities.
Final Regulatory Impact Analysis Determination
The commission reviewed the rulemaking adoption in light of the regulatory analysis requirements of the Texas Government Code (TGC), §2001.0225. The commission determined that the action is not subject to TGC, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is 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 specific intent of the adopted rule is not to protect the environment or to reduce risks to human health from environmental exposure. The intent of the adopted amendments is to remove obsolete text, correct errors, add clarity, and provide flexibility in determining adequate training for the radiation safety officer at different licensed facilities. Additionally, some of these adopted amendments are required for TCEQ to maintain compatibility with the NRC for these licensing programs. Therefore, the rulemaking adoption is not a major environmental rule.
Furthermore, even if the rulemaking adoption does meet the definition of a "Major environmental rule", the adopted rules do not meet any of the four applicability requirements listed in TGC, §2001.0225. Section 2001.0225 applies to a "Major environmental rule", the result of which is to: exceed a standard set by federal law, unless the rule is specifically required by state law; exceed an express requirement of state law, unless the rule is specifically required by federal law; 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; or adopt a rule solely under the general powers of the agency instead of under a specific state law. The rulemaking adoption does not meet any of the four applicability requirements listed in TGC, §2001.0225.
First, the rulemaking does not exceed a standard set by federal law because the commission is adopting this rulemaking, in part, to ensure compatibility with federal regulations promulgated by the NRC. The State of Texas is an "Agreement State" authorized by the NRC to administer a radiation control program under the Atomic Energy Act of 1952, as amended (Atomic Energy Act).
Second, the rulemaking does not adopt requirements that are more stringent than existing state laws. THSC, Chapter 401, authorizes the commission to regulate the licensing and disposal of radioactive substances, source material recovery, and commercial radioactive substances storage and processing. The rulemaking adoption seeks to make corrections and provide clarity and flexibility consistent with state law.
Third, the rulemaking adoption does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government, where the delegation agreement or contract is to implement a state and federal program. The State of Texas has been designated as an "Agreement State" by the NRC under the authority of the Atomic Energy Act. The Atomic Energy Act requires that the NRC find that the state radiation control program is compatible with the NRC requirements for the regulation of radioactive materials and is adequate to protect health and safety. Under the Agreement Between the United States Nuclear Regulatory Commission and the State of Texas for Discontinuance of Certain Commission Regulatory Authority and Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended, NRC requirements must be implemented to maintain a compatible state program for protection against hazards of radiation. The rulemaking adoption does not exceed the NRC requirements nor exceed the requirements for retaining status as an "Agreement State."
Fourth, this rulemaking does not seek to adopt a rule solely under the general powers of the agency. Rather, sections of THSC, Chapter 401, authorize this rulemaking, which are cited in the Statutory Authority section of this preamble.
The commission invited public comments regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received on the Draft Regulatory Impact Analysis Determination.
Takings Impact Assessment
The commission evaluated the adopted rules and performed analysis of whether the adopted rules constitute a taking under TGC, Chapter 2007. The specific purpose of the adopted rules is to remove obsolete text, correct errors, add clarity, and provide flexibility in determining adequate training for the radiation safety officer at different licensed facilities. The adopted rules will substantially advance this stated purpose by correcting references to rules, correcting misspellings, adding a definition of "closure," removing obsolete language, correcting errors to ensure compatibility with federal regulations, and modifying training requirements.
Promulgation and enforcement of these adopted rules will be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted 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, the adopted rules will not burden private real property because they remove obsolete text, correct errors, add clarity, and provide flexibility in training requirements at licensed facilities.
Consistency with the Coastal Management Program
The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §29.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §29.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program.
The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received on the CMP.
Public Comment
The commission offered a public hearing on July 29, 2024. The comment period closed on July 30, 2024. The commission received no comments.
SUBCHAPTER A. GENERAL PROVISIONS
Statutory Authority
The rule change is adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approve all general policies of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendment implements THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405705
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678
Statutory Authority
The rule changes are adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approved all general policy of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC, §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendments implement THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405706
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678
Statutory Authority
The rule change is adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approved all general policy of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC, §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendments implement THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405707
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678
30 TAC §§336.329, 336.331, 336.332, 336.336, 336.341, 336.351, 336.357
Statutory Authority
The rule changes are adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approved all general policy of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC, §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendments implement THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405713
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678
Statutory Authority
The rule change is adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approved all general policy of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC, §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendments implement THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405709
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678
Statutory Authority
The rule change is adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approved all general policy of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC, §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendments implement THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405711
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678
Statutory Authority
The rule change is adopted under Texas Water Code (TWC), §5.102, concerning general powers of the commission; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its power and duties; TWC, §5.105, which authorizes the commission to establish and approved all general policy of the commission by rule; Texas Health and Safety Code (THSC), §401.011, which authorizes the commission to regulate and license the disposal of radioactive substances, the processing and storage of low-level radioactive waste or naturally occurring radioactive material waste, the recovery and processing of source material, and the processing of by-product material; THSC, §401.051, which authorizes the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103, which authorizes the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which requires the commission to provide rules for licensing for the disposal of radioactive substances; THSC, §401.202, which authorizes the commission to regulate commercial processing and disposal of low-level radioactive waste; THSC, §401.262, which authorizes the commission to regulate by-product storage and processing facilities; THSC, §401.301, which authorizes the commission to set fees by rule; and THSC, §401.412, which authorizes the commission to issue licenses for the disposal of radioactive substances.
The adopted amendments implement THSC, Chapter 401, and are adopted to meet compatibility standards set by the United States Nuclear Regulatory Commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 21, 2024.
TRD-202405712
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: December 11, 2024
Proposal publication date: June 28, 2024
For further information, please call: (512) 239-2678