TITLE 16. ECONOMIC REGULATION

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 18. UNDERGROUND PIPELINE DAMAGE PREVENTION

16 TAC §§18.1, 18.4, 18.11

The Railroad Commission of Texas (Commission) proposes amendments to §18.1, relating to Scope, Applicability, and General Provisions, to clarify the Commission's authority over interstate pipelines. The Commission also proposes amendments to §18.4 and §18.11, relating to Excavator Obligation to Avoid Damage to Underground Pipelines and Reporting Requirements, respectively, to implement program requirements imposed by the Pipeline and Hazardous Materials Safety Administration (PHMSA).

House Bill 1818 (HB 1818), enacted by the 85th Legislature (Regular Session, 2017), amended §117.012 of the Natural Resources Code, §756.126 of the Health and Safety Code, and §121.201 of the Utilities Code to provide the Commission damage prevention authority over interstate pipelines. Thus, the proposed amendments to §18.1 remove language in subsection (a) limiting the scope of Chapter 18 to intrastate pipelines. The proposed amendments also include minor corrections to the language in §18.1.

PHMSA recently conducted an evaluation of Texas's damage prevention enforcement program pursuant to 49 United States Code (USC) §60114 and 49 Code of Federal Regulations (CFR) Part 198, Subpart D. The evaluation criteria include whether a state's damage prevention program requires the following when damage to a pipeline occurs: (1) the excavator to report damage to the operator at the earliest practical moment; and (2) the excavator to call 911 if a release of product occurs. Therefore, the Commission proposes the amendments to §18.4 and §18.11 to comply with PHMSA's standards.

In addition, the proposed amendments to §18.11 include extending the deadline for reporting a damage incident from 10 days after an incident to 30 days after an incident. Extending the deadline will allow parties time to conduct a thorough investigation of an incident.

Kari French, Director, Oversight and Safety Division, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no fiscal effect on state or local government or persons required to comply as a result of the proposed amendments.

Ms. French has determined that for each year of the first five years that the amendments will be in effect, the primary public benefit would be consistency with applicable statutes and federal requirements.

During the first five years the proposed rule would be in effect, no government program would be created or eliminated. The proposed amendments would modify existing regulations by increasing the number of pipelines subject to the Commission's damage prevention requirements in Chapter 18, implementing more stringent notice requirements in the event excavation damages a pipeline, and providing parties more time to gather data prior to submitting an investigation report to the Commission. The proposed amendments would not: create or eliminate any employee positions; require an increase or decrease in future legislative appropriations; increase or decrease fees paid to the Commission; or impact the state's economy.

The Commission has determined that the proposed amendments will not have an adverse economic effect on rural communities, small businesses, or micro-businesses.

The Commission has also determined that the proposed amendments will not affect a local economy. Therefore, the Commission has not prepared a local employment impact statement pursuant to Texas Government Code, §2001.022.

The Commission has determined that the amendments do not meet the statutory definition of a major environmental rule as set forth in Texas Government Code, §2001.0225(a); therefore, a regulatory analysis conducted pursuant to that section is not required.

Comments on the proposal may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings; or by electronic mail to rulescoordinator@rrc.texas.gov. The Commission will accept comments until noon (12:00 p.m.) on Tuesday, January 2, 2018. The Commission finds that this comment period is reasonable because the proposal and an online comment form will be available on the Commission's web site more than two weeks prior to Texas Register publication of the proposal, giving interested persons additional time to review, analyze, draft, and submit comments. The Commission encourages all interested persons to submit comments no later than the deadline. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call Ms. French at (512) 463-8559. The status of Commission rulemakings in progress is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.

The Commission proposes the amendments to §§18.1, 18.4, and 18.11 pursuant to Texas Natural Resources Code, §117.012, and Texas Utilities Code, §121.201, which authorize the Commission to adopt rules that include safety standards related to the prevention of damage to interstate and intrastate hazardous liquids or carbon dioxide pipeline facilities resulting from the movement of earth by a person in the vicinity of the facility, other than movement by tillage that does not exceed a depth of 16 inches. In addition, the Commission proposes the amendments pursuant to Texas Health and Safety Code, §756.126, which authorizes the Commission to adopt and enforce safety rules prescribing standards and best practices, including those described by 49 U.S.C. §6105 et. seq., relating to the prevention of damage by a person to a facility under the jurisdiction of the Commission, including an interstate or intrastate pipeline facility.

Statutory authority: Texas Natural Resources Code §117.012, Texas Utilities Code §121.201, and Texas Health and Safety Code §756.126.

Cross-reference to statute: Texas Natural Resources Code §117.012; Texas Utilities Code §121.201, and Texas Health and Safety Code §756.126.

Issued in Austin, Texas, on November 7, 2017.

§18.1.Scope, Applicability, and General Provisions.

(a) This chapter implements the authority of the Railroad Commission of Texas (Commission) under Texas Natural Resources Code, §117.012, [and] Texas Utilities Code, §121.201 [(as amended by House Bill 2161, Acts 2005, 79th Leg., R.S., ch. 267, §§6 and 13, eff. Sept. 1, 2005)], and [under] Texas Health and Safety Code, [§756.106 (as added by Senate Bill 9, Acts 2005, 79th Leg., R. S., ch. 1337, §19, and editorially renumbered as Health and Safety Code,] §756.126[)]. Except as provided in subsection (d) of this section, this chapter applies to all persons engaged in or preparing to engage in the movement of earth in the vicinity of an [intrastate] underground pipeline containing flammable, toxic, or corrosive gas, a hazardous liquid, or carbon dioxide.

(b) The requirements of this chapter are based on the presumption that an excavator will notify a notification center pursuant to, and that a pipeline operator will respond in accordance with, the provisions of Texas Utilities Code, Chapter 251, and the requirements of the notification center. However, compliance with the provisions of Texas Utilities Code, Chapter 251, and the requirements of a notification center does not necessarily constitute compliance with the requirements of this chapter.

(c) Persons that are exempt from the provisions of Texas Utilities Code, Chapter 251, are required to comply with this chapter, unless the person is exempt under the subsection (d) of this section.

(d) This chapter does not apply to:

(1) the exemptions in Texas Utilities Code, §251.003;

(2) the movement of earth that does not exceed a depth of 16 inches;

(3) surface mining operations;

(4) the following activities when performed by an employee of the Texas Department of Transportation (TxDOT) [TxDOT] within TxDOT right-of-way:

(A) sampling and repair of pavement, base, and subgrade;

(B) repair of roadway embankment adjacent to pavement structure;

(C) reshaping of unpaved shoulders and drop-offs;

(D) installation and maintenance of guardrails, cable barriers, delineators, vehicle attenuators, sign posts, mailboxes, and cables for traffic signals and luminaries;

(E) cleaning of ditches; and

(F) removal of silt from culverts; or

(5) hand digging by an employee or contractor of TxDOT for TxDOT's archeological program.

(e) This chapter also applies to movement of earth by tillage that exceeds a depth of 16 inches.

(f) Unless otherwise specified, all time periods used in this chapter shall be calculated from the time the original notification is given to the notification center.

(g) Unless otherwise specified, all time periods that are stated in days shall mean working days.

(h) Unless an excavator and an operator otherwise expressly agree in accordance with the requirements set forth in §18.3 of this title, relating to Excavator Notice to Notification Center, the life of a line locate ticket shall be 14 days.

(i) Unless otherwise expressly stated in this chapter, each excavator and each operator shall retain required records for at least four years. At a minimum, each operator and each excavator shall retain locate tickets and positive response notifications. Retention at a notification center is an acceptable method of retention for locate tickets.

§18.4.Excavator Obligation to Avoid Damage to Underground Pipelines.

(a) An excavator shall comply with the requirements of §18.3 of this title, relating to Excavator Notice to Notification Center. An excavator shall also comply with the requirements of Texas Health & Safety Code, Subchapter H, relating to Construction Affecting Pipeline Easements and Rights-of-Way, and shall plan an excavation in such a manner as to avoid damage to and minimize interference with all underground pipelines in the vicinity of the excavation area and shall take all reasonable steps to protect underground pipelines from damage.

(b) An excavator shall wait the time required by Texas Utilities Code, Chapter 251, before beginning excavation.

(c) Prior to excavation, an excavator shall confirm that a copy of a valid locate ticket for the location is in the possession of the excavator's designated representative and can be obtained from the representative or can be provided within one hour of a request from the operator or the Commission.

(d) Prior to excavation, an excavator shall verify that it is at the correct location as specified on the locate ticket; shall verify white-lining; and, to the best of the excavator's ability, shall make a visual check for any unmarked underground pipelines. Checking for unmarked underground pipelines includes, but is not limited to, looking for additional pipeline line markers, such as painted fence post-type markers, aboveground pipeline valves, meter sets, regulator stations, or rectifier units.

(e) An excavator shall not begin excavating until a second notice is given to the notification center for the area if:

(1) the excavator has knowledge of the existence of an underground pipeline and has received an "all clear" or a "no conflict" response from an operator;

(2) the excavator observes clear evidence (such as a line marker or an above-ground fixture) of the presence of an unmarked underground pipeline in the area of the proposed excavation, and has received an "all clear" or a "no conflict" response from an operator;

(3) there is no positive response for the excavation area; or

(4) the positive response is unclear or obviously erroneous (for example, for a different location or for a different type of underground facility).

(f) If an excavator has given a second notice in accordance with this section and there is no positive response within four hours, the excavator may begin excavating.

(g) An excavator shall protect and preserve locate markings from the time the excavator begins work until markings are no longer required for the proper and safe excavation in the vicinity of all underground pipelines.

(h) Each excavator that damages an underground pipeline shall notify the operator of the damage through the notification center at the earliest practical moment [immediately] but not later than one hour [two hours] following the damage incident. An excavator that damages an underground pipeline shall not cover the exposed pipeline without approval of the operator.

§18.11.Reporting Requirements.

(a) Each operator of an underground pipeline shall report to the Commission all damage to its pipelines caused by an excavator. Within 30 [10] days of the damage incident or of the operator's actual knowledge of the damage incident, an operator shall submit the information to the Commission through TDRF, which may be accessed through the Commission's online reporting system using its assigned operator identification code.

(b) Each excavator that damages an underground pipeline shall notify the operator of the damage through the notification center at the earliest practical moment [immediately] but not later than one hour [two hours] following the damage incident. The excavator shall also submit report of the damage incident to the Commission using TDRF, which may be accessed through the Commission's online reporting system and the excavator sign-in, within 30 [10] days of the incident.

(c) If damage to a pipeline from excavation activity causes the release of any flammable, toxic, or corrosive gas, hazardous liquid, or carbon dioxide from the pipeline, the excavator shall promptly report the release to appropriate emergency response authorities by calling 911.

(d) [(c)] Each excavator that makes an additional call to the notification center pursuant to §18.4(e) of this title, relating to Excavator Obligation to Avoid Damage to Underground Pipelines, because the excavator did not receive a positive response, shall report that fact to the Commission through TDRF. An excavator shall also report an operator's failure to provide a positive response to a second call to the Commission through TDRF.

(e) [(d)] An emergency response official, a member of the general public, or another person aware of damage to an underground pipeline is encouraged to submit an incident form using TDRF, which can be accessed through the Commission's online reporting system. Entries can be made through the general public or emergency response official sign-in.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 7, 2017.

TRD-201704499

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: December 24, 2017

For further information, please call: (512) 475-1295


PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 76. WATER WELL DRILLERS AND WATER WELL PUMP INSTALLERS

16 TAC §§76.10, 76.62, 76.70, 76.72, 76.100, 76.101, 76.105, 76.107, 76.111

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 76, §§76.10, 76.62, 76.70, 76.72, 76.100, 76.101, 76.105, 76.107, and 76.111, regarding the Water Well Drillers and Pump Installers program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The rules under 16 TAC, Chapter 76 implement Texas Occupations Code, Chapters 1901 and 1902. These proposed rules are in response to its required four-year rule review and the Texas Commission of Licensing and Regulation's (Commission) rule simplification initiative. The Department published a Notice of Intent to Review its Water Well Driller and Pump Installer rules as part of the four-year rule review required under Government Code §2001.039 in the September 2, 2016, issue of the Texas Register (41 TexReg 6781). The Department reviewed these rules and determined that the rules were still necessary to implement the statutory provisions of Texas Occupations Code, Chapters 1901 and 1902, Water Well Drillers and Water Well Pump Installers. At its meeting on November 16, 2016, the Commission re-adopted the rules in their existing form, and the adoption was published in the December 16, 2016, issue of the Texas Register (41 TexReg 9985).

The Department received two public comments in response to its Notice of Intent to Review. The re-adoption notice stated that the Department would address those public comments along with the suggested changes resulting from the Department's own review in a future proposed rulemaking. In addition to the suggested changes, the Commission has directed the Department's advisory boards to review their respective program rules with a goal of simplifying the rules and eliminating any unnecessary or obsolete rules.

PUBLIC COMMENTS

Comment: Allison Well Service commented that it was not fair that someone had to be in business for two years before bringing on an apprentice into the business.

Department Response: Pursuant to 16 TAC §76.27(a), a person must have two years of experience as a licensed driller or installer in order to sponsor an apprentice driller in an apprentice program.

The Texas Water Well Drillers Advisory Council recommended to the Commission that two years was an appropriate amount of time and overall experience for a person to be licensed as a driller or installer to adequately supervise an apprentice. The Department declines to make changes to the rules based on this comment.

Comment: One commenter expressed concern that he was "overrun in our area with Fast Bailer operations, and he believed that they should fall under the same rules as drillers and pump installers."

Department Response: A 'fast bailer' is someone who uses a bail to clean out a well to increase water production. A bailer is commonly a length of steel or PVC pipe with a one-way valve in the bottom. The bailer is lowered into the well until it fills with water and sediment; it is then pulled to the surface and emptied. This cycle is repeated until the well is either cleaned out and/or achieves improved water production. This procedure is used instead of 'jetting' a well. The only time this procedure might require a license, is if the person bailing modifies the well, for example, by installing a liner, or a pump. A 'fast bailer' does not need a Department license to pull the pump out and bail, but they would need the license to re-install the pump. The Department declines to make changes to the rules based on this comment. Whether a 'fast bailer' is performing an act that requires a license will be based on the facts of a complaint or investigation.

The current proposed rules reflect the Department's own review of the rules and recommendations from the Texas Water Well Drillers Advisory Council on the rule review proposal and rule simplification initiative. The proposed rules primarily clarify technical processes already in place, add fiberglass well casing as an approved material for casing, and clean up outdated language.

SECTION- BY- SECTION SUMMARY

The proposed amendments to §76.10 delete unnecessary language from §76.10 (A) - (C) as they are already referenced more appropriately in §76.100.

The proposed amendments to §76.62 clarify the timeframes in which the Department will review an injurious water report and take any appropriate action to notify a well owner.

The proposed amendments to §76.70 clarify the procedures a driller must take when delivering a well report, aligning the rule with the text of Texas Occupations Code, Chapter 1901.

The proposed amendments to §76.72 correct a reference to another section in the rules.

The proposed amendments to §76.100 clarify the process for siting and drilling a well, add fiberglass as an approved material for casing a water well, and remove language that is no longer accurate.

The proposed amendments to §76.101 remove unnecessary language from the rule regarding defending a contested case.

The proposed amendments to §76.105 clarify the size of the cement filling when recompleting a deteriorated well.

The proposed amendments to §76.107 make a technical clarification.

The proposed amendments to §76.111 update the Department's contact information for the Water Well Driller and Pump Installer program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed rules are in effect there will be no direct cost to state or local government as a result of enforcing or administering the proposed rules.

Mr. Francis has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be a better understanding of the rules, and the addition of fiberglass as an approved casing material gives consumers and drillers choice and provide for a better option where groundwater is more corrosive. Fiberglass will last longer than steel which could begin to rust or deteriorate sooner.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. Any additional cost for obtaining and installing fiberglass will be passed on to the consumer who chooses to purchase it.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules.

Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do not expand, limit, or repeal an existing regulation.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Waneta Lamas, Legal Assistant, Texas Department of Licensing Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapters 51, 1901 and 1902, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51, 1901 and 1902. No other statutes, articles, or codes are affected by the proposal.

§76.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (9) (No change.)

(10) Casing--A watertight pipe which is installed in an excavated or drilled hole, temporarily or permanently, to maintain the hole sidewalls against caving, advance the borehole, and in conjunction with cementing and/or bentonite grouting, to confine the ground waters to their respective zones of origin, and to prevent surface contaminant infiltration.

[(A) Plastic casing--National Sanitation Foundation (NSF-WC) or American Society of Testing Material (ASTM) F-480 minimum SDR 26 approved water well casing.]

[(B) Steel casing--New ASTM A-53 Grade B or better and have a minimum weight and thickness of American National Standards Institute (ANSI) schedule 10.]

[(C) Monitoring wells may use other materials, such as fluoropolymer (Teflon), glass-fiber-reinforced epoxy, or various stainless steel alloys.]

(11) - (54) (No change.)

§76.62.Responsibilities of the Department--Injurious Water or Constituents.

(a) Within forty-five (45) days after receipt of an Injurious Water or Constituents Report, as described in §76.71, the department shall review the well report for corrective actions taken by the driller. [If injurious water or constituents are encountered, the department shall, within thirty (30) days of notification by the driller, notify the person having the well drilled, deepened, or altered that the driller is required by law to ensure that the well is plugged, repaired, or completed under the standards and procedures in this chapter.]

(b) If after its review, the department determines that no corrective actions have been taken, the department shall within thirty (30) days of making that determination, notify in writing the person having the well drilled, deepened or altered, to inform the person that the driller is required by law to ensure that the well is plugged, repaired or completed under the standards and procedures in this chapter.

§76.70.Responsibilities of the Licensee--State Well Reports.

Every well driller who drills, deepens, or alters a well, within this state shall record and maintain a legible and accurate State of Texas Well Report on a department-approved form. Each copy of a State of Texas Well Report, other than a department copy, shall include the name, mailing address, web address and telephone number of the department.

(1) Not later than the 60th day after the date of the completion or cessation of drilling, deepening, or otherwise altering the well, the driller shall deliver, send by first class mail, or provide electronically, a copy of the well log to: [Every well driller shall transmit electronically through the Texas Well Report Submission and Retrieval System or deliver or send by first-class mail, a copy of the State of Texas Well Report to the department. Every well driller shall deliver, transmit electronically, or send by first-class mail a copy to the groundwater conservation district in which the well is located, if any. Every well driller shall also deliver, transmit electronically, or send by first-class mail a copy to the owner or person for whom the well was drilled, within sixty (60) days from the completion or cessation of drilling, deepening, or otherwise altering a well.]

(A) The department;

(B) The Texas Commission on Environmental Quality (if the log was not submitted to the department electronically);

(C) The owner of the well or the person for whom the well was drilled; and

(D) The groundwater conservation district in which the well is located, if any.

(2) - (5) (No change.)

§76.72.Responsibilities of the Licensee and Landowner--Well Drilling, Completion, Capping and Plugging.

(a) All well drillers, installers and persons having a well drilled, deepened or altered, and persons in possession of abandoned or deteriorated wells, shall adhere to the provisions of the Code and this chapter prescribing the location of wells and proper drilling, completion, capping, repairing and plugging.

(b) A licensed driller shall ensure that when injurious water or constituents are knowingly encountered, the well is plugged or is converted into a properly completed monitoring well as defined in §76.10(35), [§76.10(33),] and under the standards set forth in §76.104.

(c) (No change.)

(d) If a landowner, or person having the well drilled, deepened or altered refuses to allow a licensed driller or installer access to the well which requires plugging, capping, repairing or completion or otherwise precludes the driller or installer from plugging, capping, repairing or completing a well where injurious constituents or water have been encountered, the driller shall, within forty-eight (48) hours of the refusal, file a signed statement to that effect with the department and provide a copy of the statement to the local groundwater conservation district. The statement shall indicate that:

(1) the driller, installer or person under his supervision, encountered injurious water or constituents while drilling the well;

(2) the driller or installer has informed the person having the well drilled, deepened or otherwise altered that injurious water or constituents were encountered and that the well must be plugged or completed pursuant to Texas Occupations Code, §1901.254 or §1902.253, and this chapter;

(3) the person or landowner having the well drilled, deepened or altered has denied the driller or installer access to the well;

(4) the reason, if known, for which access has been denied; and

(5) if known, whether the person having the well drilled, deepened or otherwise altered intends to have the well plugged or completed.

(e) A deteriorated well must be plugged. An abandoned well must be either capped or plugged. If a landowner or person who possesses an abandoned or deteriorated well fails to have the well plugged, or capped under standards and procedures adopted by the commission within one hundred eighty (180) days from learning of its condition, the department shall notify the local groundwater conservation district and the department may initiate a contested case against the landowner or person for a violation of Texas Occupations Code, §1901.255.

(f) - (g) (No change.)

§76.100.Technical Requirements--Locations and Standards of Completion for Wells.

(a) Wells shall be completed in accordance with the following specifications and in compliance with the local groundwater conservation district rules or incorporated city ordinances.

(1) Siting Method. A well shall be located a minimum horizontal distance of one hundred fifty (150) feet from any concentrated sources of potential contamination such as, but not limited to, existing or proposed livestock or poultry yards, cemeteries, pesticide mixing/loading facilities, and privies, except in the case of monitoring, dewatering, piezometer, and recovery wells which may be located where necessity dictates. A well shall be located a minimum horizontal distance of one hundred (100) feet from an existing or proposed septic system absorption field, septic system spray area, a dry litter poultry facility and fifty (50) feet from any adjacent property line provided the well is located at the minimum horizontal distance from the sources of potential contamination.

(2) A well shall be located a minimum horizontal distance of fifty (50) feet from any water-tight sewage and liquid-waste collection facility except in the case of monitoring, dewatering, piezometer, and recovery wells which may be located where necessity dictates.

(3) A well shall be located at a site not generally subject to flooding; provided however, that if a well must be placed in a flood-prone area, it shall be completed with a watertight sanitary well seal, so as to maintain a junction between the casing and pump column, and a steel sleeve extending a minimum of thirty-six (36) inches above ground level and twenty-four (24) inches below the ground surface.

(4) A driller is not required to adhere to the property line distance requirements if:

(A) the well is located within a groundwater conservation district, and the district's rules regulate the spacing of wells;

(B) the well is located on property that has restrictions regulating the spacing of wells and on-site sewage systems; or

(C) public wastewater treatment is provided and utilized by the owner.

(b) Alternative siting methods:

(1) Unless the well is drilled within the Edwards Aquifer, the distances given for separation of wells from sources of potential contamination in subsection (a)(1) may be decreased to a minimum of fifty (50) feet provided the well is cemented with positive displacement technique to a minimum of one hundred (100) feet to surface or the well is tremie pressure filled to the depth of one hundred (100) feet to the surface provided the annular space is three (3) inches larger than the outside diameter of the casing. For wells less than one hundred (100) feet deep, the cement slurry, bentonite grout, or bentonite column shall be placed to the top of the production zone. In areas of shallow, unconfined groundwater aquifers, the cement slurry, bentonite grout, or bentonite column need not be placed below the production zone. In areas of shallow, confined groundwater aquifers having artesian head, the cement slurry, bentonite grout, or bentonite column need not be placed below the top of the water-bearing strata.

(2) A well that is cemented with positive displacement technique to a minimum of one hundred (100) feet to surface or a [the] well that is tremie pressure filled to the depth of one hundred (100) feet to the surface (provided the annular space is three (3) inches larger than the outside diameter of the casing) may encroach up to five (5) feet of the adjacent property line. For wells less than one hundred (100) feet deep, the cement slurry, bentonite grout, or bentonite column shall be placed to the top of the producing layer. In areas of shallow, unconfined groundwater aquifers having artesian head, the cement slurry, bentonite grout, or bentonite column need not be placed below the top of the water production zone.

(c) Drilling the well

(1) All wells shall be completed so that aquifers or zones containing waters that differ in chemical quality are not allowed to commingle in [through] the casing, borehole [casing] annulus or the filter pack and cause quality degradation of any aquifer or zone. When aquifers or zones of lesser quality are overlying the production aquifer or zone, the borehole annulus shall be pressure grouted with bentonite or cement from the top of the production zone back to the surface unless formations make total grouting impossible or impractical. In this case the entire borehole annulus which is groutable shall be grouted and sealed including proper surface annular grouting and completion.

(2) - (7) (No change.)

(d) Casing the well

(1) (No change.)

(2) Only the [The] following casing materials may [must] be used for a water well:

(A) (No change.)

(B) Steel casing--New ASTM A-53 Grade or better, and have a minimum weight and thickness of American National Standards Institute (ANSI) schedule 10; or

(C) Fiberglass Casing--National Sanitation Foundation sixty-one (NSF-61) and American Society of Testing Material (ASTM) D2996 approved Filament Wound fiberglass casing (Glass-Fiber-Reinforced Thermosetting-Resin pipe.)

(D) [(C)] Monitoring wells may use other materials, such as flouropolymer (Teflon), glass fiber reinforced epoxy, or various stainless steel alloys;

(e) Annular Seal. The annular space to a minimum of ten (10) feet shall be three (3) inches larger in diameter than the outside diameter of the casing and filled from ground level to a depth of not less than ten (10) feet below the land surface or well head with cement slurry, bentonite grout, or eight (8) feet solid column of granular sodium bentonite topped with a two (2) foot cement atmospheric barrier, except in the case of monitoring, dewatering, piezometer, and recovery wells when the water to be monitored, recovered, or dewatered is located at a more shallow depth. In that situation, the cement slurry, or bentonite column shall only extend down to the level immediately above the monitoring, recovery or dewatering level.

(f) Surface Completion

(1) - (3) (No change.)

(4) The top of the casing shall extend a minimum of twelve (12) inches above the land surface except in the case of monitoring wells when it is impractical or unreasonable to extend the casing above the ground. Monitoring wells shall be placed in a waterproof vault, the rim of which extends two (2) inches above the ground surface and a sloping cement slurry shall be placed a minimum of twelve (12) inches from the edge of the vault and two (2) feet below the base of the vault between the casing and the wall of the borehole [so as] to prevent surface pollutants from entering the monitoring well. The well casing shall have a locking cap that will prevent pollutants from entering the well. The annular space of the monitoring well shall be sealed with an impervious bentonite or similar material from the top of the interval to be tested to the cement slurry below the vault of the monitoring well.

(5) - (6) (No change.)

(g) (No change.)

(h) Unless waived in writing by the landowner, a new, repaired or reconditioned well or pump installation or repair on a well that is used to supply water for human consumption, shall be properly disinfected. [, as described in §76.108(b) or (c) as appropriate.]

§76.101.Technical Requirements--Standards of Completion for Water Wells Encountering Water Injurious to Vegetation, Land or Other Water.

(a) - (b) (No Change.)

(c) If a driller encounters injurious water and the well is not plugged or made into a completed monitoring well producing injurious water, the driller shall ensure that the well drilled, deepened or altered is completed as quickly as possible as follows:

(1) When injurious water is encountered in a water well, the injurious water shall be sealed off and confined to the zone(s) of origin. [It is a defense to prosecution for violation of this section that the driller reasonably was not aware of having encountered injurious water.]

(2) - (5) (No change.)

(d) (No change.)

§76.105.Technical Requirements--Standards for Water Wells (Drilled before June 1, 1983).

(a) (No change.)

(b) If the annular space around the well casing is not adequately sealed as set forth in this section, it shall be the responsibility of each licensed driller or licensed pump installer to inform the landowner that the well is considered to be a deteriorated well and must be recompleted when repairs are made to the pump or well in accordance with this chapter, and the following specifications.

(1) The well casing shall be excavated to a minimum depth of four (4) feet and the annular space shall be filled from ground level to a depth of not less than four (4) feet below the land surface with cement. The cement filling shall be a minimum thickness of three (3) inches larger than the outside diameter of the casing. In areas of shallow, unconfined groundwater aquifers, the cement need not be placed below the static water level. In areas of shallow, confined groundwater aquifers having artesian head, the cement need not be placed below the top of the water bearing strata.

(2) - (3) (No change.)

(c) - (d) (No change.)

§76.107.Technical Requirements--Chemical Injection, Chemigation, and Foreign Substance Systems.

(a) - (g) (No change.)

(h) An easily accessible inspection port shall be located between the pump discharge and the check valve, and situated so the automatic low-pressure drain can be observed through the port and the flapper can be physically manipulated.

(1) (No change.)

(2) The port shall have a minimum four (4) inch diameter orifice or viewing area. For irrigation distribution systems with pipe lines too small to install a four (4) inch [four-inch] diameter inspection port, the check valve and other anti-pollution devices shall be mounted with quick disconnects, flange fittings, dresser couplings, or other fittings that allow for easy removal of these devices.

(i) (No change.)

§76.111.Memorandum of Understanding between the Texas Department of Licensing and Regulation and the Texas Commission on Environmental Quality.

(a) - (d) (No change.)

(e) Referral and Investigation Requirements.

(1) - (2) (No change.)

(3) Referrals to TDLR should be sent to: Water Well Driller/Pump Installer Section, Compliance Division, TDLR; Phone: (512) 334-5540 [(512) 463-7880]; Fax: (512) 463-8616; email: water.well@tdlr.texas.gov.

(f) - (h) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 10, 2017.

TRD-201704552

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 24, 2017

For further information, please call: (512) 463-8614