TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 331. UNDERGROUND INJECTION CONTROL

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes amendments to §§331.19, 331.107, and 331.108.

Background and Summary of the Factual Basis for the Proposed Rules

This rulemaking implements Senate Bill (SB) 616 and SB 1061, 89th Texas Legislature, Regular Session, 2025, relating to certain injection wells transecting the Edwards Aquifer used for aquifer storage and recovery (ASR) projects and Class III production area authorizations (PAAs). SB 616 allows for additional exceptions to prohibitions on drilling into or through the Edwards Aquifer. SB 1061 allows for amendments to Class III PAAs to be uncontested matters if certain conditions are met and requires the commission to prioritize conservation of regional groundwater supplies when considering amendment to restoration table values.

The proposed rulemaking implements SB 616 by amending the commission's underground injection control rules to allow authorization of certain types of injection wells that transect or terminate in the Edwards Aquifer, either by permit or by rule, and to allow for authorization of an ASR injection well that transects the Edwards Aquifer as long as the geologic formation used for injection underlies the Edwards Aquifer and the injection well would be located in either the area of Williamson County east of Interstate Highway 35 or in Medina County. The proposed rulemaking implements SB 1061 by amending the commission's underground injection control rules to allow for amendment to an in-situ uranium mining PAA to be an uncontested matter if certain conditions are met and requiring the commission to prioritize the conservation of regional groundwater water supplies when reviewing an application to amend a restoration table value.

A PAA is an authorization, issued under the terms of a Class III injection well area permit for uranium mining, that approves the initiation of mining activities in a specified production area within a permit area, and sets specific conditions for production and restoration in each production area within an area permit. Because the SB 1061 revisions to Texas Water Code (TWC), §27.0513(d) now include amendment applications for PAAs and all of the applicability provisions applying under paragraphs (d)(1)-(4), all applications for PAAs would be uncontested matters and not subject to an opportunity for contested case hearing. Applications for PAAs are still subject to public notice requirements and opportunity to submit public comment.

Section by Section Discussion

The commission proposes to amend 30 Texas Administrative Code (TAC) §331.19 to implement SB 616 and TWC §27.051(i). The proposed revision amends the prohibition for certain injection wells in the Edwards Aquifer to allow authorization of certain aquifer storage and recovery projects. The commission proposes to amend §331.19 by adding new §331.19(a)(5) which states "wells that transect the Edwards Aquifer and that inject water into a geologic formation that underlies the Edwards Aquifer as part of an aquifer storage and recovery project in the area of Williamson County east of Interstate Highway 35 or in Medina County." Any injection wells subject to this allowance would still be required to comply with other applicable requirements in Chapter 331 for ASR projects.

The commission proposes to amend 30 TAC §§331.107 and 331.108 to implement SB 1061 and TWC, §27.0513. The commission proposes to amend §331.107 by adding "The commission shall prioritize the conservation of regional water supplies when considering an application to amend a restoration table value or range table." to §331.107(g)(1). The proposed amendment to §331.107 implements TWC, §27.0513(c-1) as established by SB 1061. Accordingly, the commission will give priority to the conservation of regional water supplies over the other factors listed in §331.107(g)(1)(A)-(I). The commission specifically solicits comments on the proposed amendment to paragraph 331.107(g)(1) to apply the prioritization of regional groundwater supplies when considering an application for amendment of a permit range table.

The commission's rule in §331.108 establishes that applications for PAAs are not subject to opportunity for contested case hearing if the conditions established in TWC, §27.0513(d) are met. The commission proposes to amend §331.108 by adding the phrase "…or an amendment to production area authorization…" in §331.108(a). The commission proposes to amend §331.108(a)(1)-(3) to implement the revisions to TWC, §27.0513(d)(1)-(3) as established by SB 1061. The commission proposes to amend §331.108 by adding new §331.108(a)(4), which establishes that applications for PAAs are not subject to an opportunity for contested case hearing if the Notice of Receipt of Application and Intent to Obtain Permit is provided to the individual land owners, mineral rights owners and an applicable Groundwater Conservation District not later than 30 days after the date the executive director commission determines the new or amended PAA application to be administratively complete. This proposed addition of §331.108(a)(4) implements TWC, §27.0513(d) as established by SB 1061. The public notice requirements for applications for PAAs have not changed and the revisions in §331.108(a)(4) are consistent with the existing public notice requirements in 30 TAC §§39.418 and 39.653. Under existing §39.653, the chief clerk is required to mail the Notice of Receipt of Application and Intent to Obtain Permit not later than 30 days after the executive director declares an application to be administratively complete. The commission proposes to amend §331.108(b) because the proposed revision of subsection (a) applies to amendment applications and to specify that a restoration table value in a PAA may not be amended to exceed the respective value of the permit range table and is consistent with the existing requirement in §331.107(a)(1). The commission proposes to delete §331.108(c) because all Class III injection well permits for in situ uranium mining include a permit range table as required by TWC, §27.0513(a). Because the revisions to §331.108 now include amendment applications as specified by SB 1061, all applications for PAAs would be expected to fall within the conditions in §331.108(a)(1)-(4) that render the applications as uncontested matters and not subject to an opportunity for contested case hearing. Applications for PAAs are still subject to public notice requirements and opportunity to submit public comment.

Fiscal Note: Costs to State and Local Government

Kyle Girten, Analyst in the Budget and Planning Division, has determined that for the first five-year period the proposed rule is in effect, no fiscal implications are anticipated for the agency or for other units of state or local government as a result of administration or enforcement of the proposed rule.

Public Benefits and Costs

Mr. Girten determined that for each year of the first five years the proposed rules are in effect, the public benefit will be compliance with state law, specifically SB 616 and SB 1061 from the 89th Texas Legislature, Regular Session, 2025. The proposed rulemaking is not anticipated to result in fiscal implications for individuals or businesses during the first five-year period the proposed rule is in effect.

Local Employment Impact Statement

The commission reviewed this proposed rulemaking and determined that a Local Employment Impact Statement is not required because the proposed rulemaking does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

Rural Communities Impact Assessment

The commission reviewed this proposed rulemaking and determined that the proposed rulemaking does not adversely affect rural communities in a material way for the first five years that the proposed rules are in effect. The amendments would apply statewide and have the same effect in rural communities as in urban communities.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or micro-businesses due to the implementation or administration of the proposed rule for the first five-year period the proposed rules are in effect.

Small Business Regulatory Flexibility Analysis

The commission reviewed this proposed rulemaking and determined that a Small Business Regulatory Flexibility Analysis is not required because the proposed rule does not adversely affect a small or micro-business in a material way for the first five years the proposed rules are in effect.

Government Growth Impact Statement

The commission prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program and will not require an increase or decrease in future legislative appropriations to the agency. The proposed rulemaking does not require the creation of new employee positions, eliminate current employee positions, nor require an increase or decrease in fees paid to the agency. The proposed rulemaking amends an existing regulation, and it does not create, expand, repeal, or limit this regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years, the proposed rule should not impact positively or negatively the state's economy.

Written comments concerning the cost, benefit, or effect of the proposed rule, including any applicable data, research, or analysis may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Draft Regulatory Impact Analysis Determination

The commission reviewed the proposed rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §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 proposed amendments implement SB 616 and SB 1061 from the 89th Texas Legislature, Regular Session, 2025. SB 616 provides additional exceptions to the prohibition of injection wells into or through the Edwards Aquifer to allow for certain ASR projects in Williamson or Medina Counties. SB 1061 is procedural in addressing application requirements for PAAs and revises the conditions for which applications for PAAs are uncontested matters and requires the commission to prioritize the conservation of regional groundwater supplies when considering an application for amendment to a restoration table value. The proposed rules revise the exceptions to the prohibition of injection wells that terminate in or transect the Edwards Aquifer to allow for certain ASR projects in Williamson or Medina Counties. The allowance for injection wells that transect the Edwards Aquifer for certain ASR projects in Williamson or Medina Counties does not alleviate or change existing requirements that would otherwise apply to ASR projects. The proposed rules also specify that the commission will prioritize the conservation of regional groundwater supplies when considering an application to revise a restoration table or permit range table. The proposed rules specify the conditions that render an application for a new or amended PAA an uncontested matter and not subject to an opportunity for a contested case hearing. The proposed rules do not change any existing requirements that protect the environment or reduce risks to human health from environmental exposure, nor do the proposed rules 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.

As defined in the Texas Government Code, §2001.0225 only 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 authority of the commission. The proposed rules do not exceed a standard set by federal law. The proposed amendments do not exceed an express requirement of state law or a requirement of a delegation agreement. These rules were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and TWC, that are cited in the statutory authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

The commission invites public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Takings Impact Assessment

The commission evaluated the proposed rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The proposed amendments implement SB 616 and SB 1061 from the 89th Texas Legislature, Regular Session, 2025. The proposed amendments in Chapter 331 do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the proposed rules. The proposed amendments to Chapter 331 amend the prohibition for injection wells that transect or terminate in the Edwards Aquifer to allow certain aquifer and storage and recovery projects in Williamson or Medina Counties and amend procedural requirements for the processing of applications for PAAs. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the proposed rules and found 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 proposed rules are not subject to the Texas Coastal Management Program (CMP).

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Announcement of Hearing

The commission will hold a hybrid virtual and in-person public hearing on this proposal in Austin on December 8, 2025 at 2:00 p.m. in Building E, Room 201S at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing at 1:30 p.m.

Individuals who plan to attend the hearing virtually and want to provide oral comments and/or want their attendance on record must register by December 4, 2025. To register for the hearing, please email Rules@tceq.texas.gov and provide the following information: your name, your affiliation, your email address, your phone number, and whether or not you plan to provide oral comments during the hearing. Instructions for participating in the hearing will be sent on December 5, 2025, to those who register for the hearing.

For the public who do not wish to provide oral comments but would like to view the

hearing may do so at no cost at:

https://events.teams.microsoft.com/event/86f195cb-f093-4e21-a3b5-c3b8c2b66269@871a83a4-a1ce-4b7a-8156-3bcd93a08fba

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802 or 1-800-RELAY-TX (TDD). Requests should be made as far in advance as possible.

Submittal of Comments

Written comments may be submitted to Gwen Ricco, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to fax4808@tceq.texas.gov. Electronic comments may be submitted at: https://tceq.commentinput.com/comment/search. File size restrictions may apply to comments being submitted via the TCEQ Public Comments system. All comments should reference Rule Project Number 2025-033-331-WS. The comment period closes at 11:59 p.m. on December 10, 2025. Please choose one of the methods provided to submit your written comments.

Copies of the proposed rulemaking can be obtained from the commission's website at https://www.tceq.texas.gov/rules/propose_adopt.html. For further information, please contact Dan Hannah, Radioactive Materials Division, Underground Injection Control Section at (512) 239-2161.

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §331.19

Statutory Authority

The amendments are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; and §27.019, which authorizes the commission to adopt rules for the performance of its powers, duties, and functions under the Injection Well Act.

The proposed rules implement Senate Bill (SB) 616, 89th Texas Legislature, Regular Session, 2025; TWC, §§27.011 and 27.051.

§331.19. Injection Into or Through the Edwards Aquifer.

(a) Except as authorized in subsection (c) of this section, for applications submitted on or after September 1, 2001, injection wells that transect or terminate in the Edwards Aquifer may be authorized by rule under §331.9 of this title (relating to Injection Authorized by Rule) or by permit only as follows:

(1) wells that inject groundwater withdrawn from the Edwards Aquifer may be authorized only if:

(A) the groundwater is unaltered physically, chemically, or biologically; or

(B) the groundwater is treated in connection with remediation that is approved by state or federal order, authorization, or agreement and does not exceed the maximum contaminant levels for drinking water contained in §290.104 of this title (relating to Summary of Maximum Contaminant Levels, Maximum Residual Disinfectant Levels, Treatment Techniques, and Action Levels);

(2) wells that inject non-toxic tracer dyes into the Edwards Aquifer for the purpose of conducting scientific studies to determine hydrologic flowpaths may be authorized if the owner or operator is a federal or state agency, county, municipality, river authority, or groundwater district;

(3) improved sinkholes or caves located in karst topographic areas that inject storm water, flood water, or groundwater may be authorized; [~~and~~]

(4) wells that terminate in a portion of the Edwards Aquifer that contains groundwater with a total dissolved solids (TDS) concentration of more than 5,000 milligrams per liter, and:

(A) the water is injected by a utility owned by the City of New Braunfels;

(B) the injected water has a TDS of less than 1,500 milligrams per liter and is not domestic wastewater, municipal wastewater, or reclaimed water as defined by Chapter 210 of this title (relating to Use of Reclaimed Water);

(C) if the injected water is state water, the utility has a water right or contract for use of the water that does not prohibit use of the water in an aquifer storage and recovery project; and

(D) the injection of the water complies with the requirements of Subchapter K of this chapter (relating to Additional Requirements for Class V Injection Wells Associated with [~~With~~] Aquifer Storage and Recovery Projects); or [.]

(5) wells that transect the Edwards Aquifer and that inject water into a geologic formation that underlies the Edwards Aquifer as part of an aquifer storage and recovery project in the area of Williamson County east of Interstate Highway 35 or in Medina County.

(b) For the purposes of subsection (a) of this section, Edwards Aquifer means that portion of an arcuate belt of porous, water-bearing limestones composed of the Edwards Formation, Georgetown Formation, Comanche Peak Formation, Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, and Edwards Group trending from west to east to northeast through Kinney, Uvalde, Medina, Bexar, Kendall, Comal, Hays, Travis, and Williamson Counties. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut Formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.

(c) This subsection applies only to the portion of the Edwards Aquifer that is within the geographic area circumscribed by the external boundaries of the Barton Springs-Edwards Aquifer Conservation District but is not in the jurisdiction of the Edwards Aquifer Authority.

(1) Unless authorized by rule as provided in paragraph (4) of this subsection or authorized by rule, individual permit, or general permit issued by the commission as provided in paragraph (5) of this subsection, all injection wells within the geographic area described in this subsection are prohibited.

(2) This subsection does not apply to a wastewater facility permitted under Texas Water Code (TWC), Chapter 26 or a subsurface area drip dispersal system permitted under TWC, Chapter 32.

(3) Definitions. For the purposes of this subsection:

(A) Edwards Aquifer--That portion of an arcuate belt of porous, water-bearing limestones composed of the Edwards Formation, Georgetown Formation, Comanche Peak Formation, Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, and Edwards Group, together with the Upper Glen Rose Formation where scientific studies have documented a hydrological connection to the overlying Edwards Group trending from west to east to northeast through Kinney, Uvalde, Medina, Bexar, Kendall, Comal, Hays, Travis, and Williamson Counties. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut Formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.

(B) Engineered aquifer storage and recovery facility--A facility with one or more wells that is located, designed, constructed, and operated for the purpose of injecting fresh water into a subsurface permeable stratum and storing the water for subsequent withdrawal and use for a beneficial purpose.

(C) Fresh water--Surface water or groundwater, without regard to whether the water has been physically, chemically, or biologically altered, that:

(i) contains a total dissolved solids concentration of not more than 1,000 milligrams per liter; and

(ii) is otherwise suitable as a source of drinking water supply.

(D) Saline portion of the Edwards Aquifer--The portion of the Edwards Aquifer that contains groundwater with a total dissolved solids concentration of more than 1,000 milligrams per liter.

(4) Injection wells authorized by rule. Injection wells within the geographic area described within this subsection may be authorized by rule under §331.9 of this title for:

(A) the injection of fresh water withdrawn from the Edwards Aquifer into a well that transects or terminates in the Edwards Aquifer for the purpose of providing additional recharge; or

(B) the injection of rainwater, storm water, flood water, or groundwater into the Edwards Aquifer by means of an improved natural recharge feature such as a sinkhole or cave located in a karst topographic area for the purpose of providing additional recharge.

(5) Injection wells authorized by rule, individual permit, or general permit. Injection wells within the geographic area described in this subsection may be authorized under a rule, individual permit, or general permit issued by the commission. A rule, individual permit, or general permit under this paragraph may authorize:

(A) an activity described under paragraph (4) of this subsection;

(B) an injection well that transects and isolates the saline portion of the Edwards Aquifer and terminates in a lower aquifer for the purpose of injecting:

(i) concentrate from a desalination facility; or

(ii) fresh water as part of an engineered aquifer storage and recovery facility;

(C) an injection well that terminates in that part of the saline portion of the Edwards Aquifer that has a TDS concentration of more than 10,000 milligrams per liter for the purpose of injecting into the saline portion of the Edwards Aquifer:

(i) concentrate from a desalination facility, provided that the injection well must be at least three miles from the closest outlet of Barton Springs; or

(ii) fresh water as part of an engineered aquifer and storage recovery facility, provided each well used for injection or withdrawal from the facility must be at least three miles from the closest outlet of Barton Springs;

(D) an injection well that transects or terminates in the Edwards Aquifer for:

(i) aquifer remediation;

(ii) the injection of a nontoxic tracer dye as part of a hydrologic study; or

(iii) another beneficial activity that is designed and undertaken for the purpose of increasing protection of an underground source of drinking water from pollution or other deleterious effects; or

(E) an injection well that transects the Edwards Aquifer for the purpose of injecting fresh water provided that:

(i) the well isolates the Edwards Aquifer and meets the construction standards in §331.183 of this title (relating to Construction and Closure Standards);

(ii) the well is part of an engineered aquifer storage and recovery facility;

(iii) the injected water is sourced from a public water system, as defined in §290.38 of this title (relating to Definitions), that is permitted by the commission;

(iv) the injected water meets water quality standards for public drinking water established in Chapter 290 of this title (relating to Public Drinking Water); and

(v) the injection complies with the provisions of Subchapter K of this chapter that are not in conflict with this section.

(6) The commission must hold a public meeting before issuing a general permit under this section.

(7) Special requirements for all injection wells subject to this subsection.

(A) Monitoring wells. An injection well subject to this subsection must be monitored by means of:

(i) one or more monitoring wells operated by the injection well owner if the executive director determines that there is an underground source of drinking water in the area of review that is potentially affected by the injection well; or

(ii) if clause (i) of this subparagraph does not apply, one or more monitoring wells operated by a party other than the injection well owner, provided that all results of monitoring are promptly made available to the injection well owner.

(iii) A monitoring well described under this subparagraph, if properly sited and completed, may also be used for monitoring a saline water production well.

(B) An injection well subject to this subsection:

(i) must not result in the waste or pollution of fresh water; and

(ii) may be authorized for a term not to exceed ten years, and the authorization for the injection well may be renewed.

(8) An authorization by rule, individual permit, or general permit under paragraph (5)(B), (C), or (E) of this subsection:

(A) must initially be associated with a small-scale research project designed to evaluate the long-term feasibility of the injection of concentrate from a desalination facility; or an aquifer storage and recovery project;

(B) may be continued following completion of the research project if:

(i) the research project information is submitted to the commission in a timely schedule;

(ii) adequate characterization of risks to the fresh water portion of the Edwards Aquifer, the fresh water portion of formations in the Trinity Group or other fresh water demonstrates to the commission's satisfaction that continued operation or continued operations with commission-approved well modifications or operational controls does not pose unreasonable risk to the fresh water portion of the Edwards Aquifer, the fresh water portion of formations in the Trinity Group, or other fresh water; and

(iii) the commission receives a notice of intent to continue operation at least 90 days before initiation of commercial well operations.

(9) Authorization under paragraph (5)(B) or (C) of this subsection must require monitoring reports be filed with the executive director at least every three months.

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 October 24, 2025.

TRD-202503840

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 7, 2025

For further information, please call: (512) 239-6087

SUBCHAPTER F. STANDARDS FOR CLASS III WELL PRODUCTION AREA DEVELOPMENT

30 TAC §331.107, §331.108

Statutory Authority

The amendments are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; §27.019, which authorizes the commission to adopt rules for the performance of its powers, duties, and functions under the Injection Well Act; and §27.0513 which authorizes the commission to adopt rules applications for production area authorizations.

The proposed rules implement Senate Bill (SB) 1061, 89th Texas Legislature, Regular Session, 2025; TWC, §27.0513.

§331.107. Restoration.

(a) Aquifer restoration. Groundwater in the production zone within the production area must be restored when mining is complete. Each Class III permit or production area authorization shall contain a description of the method for determining that groundwater has been restored in the production zone within the production area. Restoration must be achieved for all values in the restoration table of all parameters in the suite established in accordance with the requirements of §331.104(b) of this title (relating to Establishment of Baseline and Control Parameters for Excursion Detection).

(1) Restoration table. Each permit or production area authorization shall contain a restoration table for all parameters in the suite established in accordance with the requirements of §331.104(b) of this title. The restoration value for each parameter listed in the restoration table cannot exceed the maximum value for the respective parameter in the permit range table required under §331.82(e)(7) of this title (relating to Construction Requirements). A restoration table value for a parameter shall be established by:

(A) the mean concentration or value for that parameter based on all measurements from groundwater samples collected from baseline wells prior to mining activities; or

(B) a statistical analysis of baseline well information proposed by the owner or operator and approved by the executive director that demonstrates that the restoration table value is representative of baseline quality.

(2) Achievement of restoration. Achievement of restoration shall be determined using one of the following methods:

(A) when all mean concentration values from groundwater samples from all baseline wells for a restoration parameter are equal to or below (or, in the case of pH, within an established range) the restoration table value for that parameter, then restoration for that parameter will be assumed to have occurred. Complete restoration will be assumed to have occurred when mean concentration values from all samples from all baseline wells for all restoration parameters are equal to or below (or, in the case of pH, within an established range) each respective restoration table value; or

(B) a statistical analysis of information from groundwater samples from baseline wells proposed by the owner or operator and approved by the executive director that demonstrates that the groundwater quality is representative of the restoration table values.

(b) Mining completion. When the mining of a permit or production area is completed, the permittee shall notify the appropriate commission regional office and the executive director and shall proceed to reestablish groundwater quality in the affected permit or production area aquifers in accordance with the requirements of subsection (a) of this section. Restoration efforts shall begin as soon as practicable but no later than 30 days after mining is completed in a particular production area. The executive director, subject to commission approval, may grant a variance from the 30-day period for good cause shown.

(c) Timetable. Aquifer restoration, for each permit or production area, shall be accomplished in accordance with the timetable specified in the currently approved mine plan, unless otherwise authorized by the commission. Authorization for expansion of mining into new production areas may be contingent upon achieving restoration progress in previously mined production areas within the schedule set forth in the mine plan. The commission may amend the permit to allow an extension of the time to complete restoration after considering the following factors:

(1) efforts made to achieve restoration by the original date in the mine plan;

(2) technology available to restore groundwater for particular parameters;

(3) the ability of existing technology to restore groundwater to baseline quality in the area;

(4) the cost of achieving restoration by a particular method;

(5) the amount of water which would be used or has been used to achieve restoration;

(6) the need to make use of the affected aquifer; and

(7) complaints from persons affected by the permitted activity.

(d) Reports. Beginning six months after the date of initiation of restoration of a permit or production area, as defined in the mine plan, and until receiving written acknowledgment from the executive director that restoration for the production areas has been accomplished, the operator shall provide to the executive director semi-annual restoration progress reports. This report shall contain the following information:

(1) all analytical data generated to monitor restoration progress for certain parameters, as approved by the executive director, during the previous six months;

(2) graphs of analysis for each restoration parameter for each baseline well or for each restoration parameter that has been amended in accordance with subsection (g) of this section;

(3) the volume of fluids injected and produced;

(4) the volume of fluids disposed;

(5) water level measurements for all baseline and monitor wells, and for any other wells being monitored;

(6) a potentiometric map for the area of the production area authorization, based on the most recent water level measurements; and

(7) a summary of the progress achieved towards aquifer restoration.

(e) Restoration table values achieved. When the permittee determines that constituents in the aquifer have been restored to the values in the Restoration Table, the restoration shall be demonstrated by stability sampling in accordance with subsection (f) of this section.

(f) Stability sampling. The permittee shall obtain stability samples and complete an analysis for all parameters listed in the restoration table from all production area baseline wells. Stability sampling may commence 60 days after cessation of restoration operations. Stability samples shall be conducted at a minimum of 30-day intervals for a minimum of three sample sets and reported to the executive director. The permittee shall notify the executive director at least two weeks in advance of sample dates to provide the opportunity for splitting samples and for selecting additional wells for sampling, if desired. To ensure water quality has stabilized, a period of one calendar year must elapse between cessation of restoration operations and the final set of stability samples. Upon acknowledgment in writing by the executive director confirming achievement of final restoration, the permittee shall accomplish closure of the area in accordance with §331.86 of this title (relating to Closure).

(g) Amendment of restoration table or range table values. After an appropriate effort has been made to achieve restoration in accordance with the requirements of subsection (a) of this section, the permittee may cease restoration operations, reduce bleed and request that the restoration table be amended. With the request for amendment of the restoration table values, the permittee shall submit stability sampling results in accordance with subsection (f) of this section. The permittee shall notify the executive director of his or her intent to cease restoration operations and reduce the bleed 30 days prior to implementing these steps. If any restoration table value for any parameter listed in the restoration table will exceed the maximum value for the respective parameter in the permit range table, the permittee must submit an application for a major amendment of the permit range table.

(1) The commission shall prioritize the conservation of regional groundwater water supplies when considering an application to amend a restoration table value or range table. In determining whether the restoration table or range table should be amended, the commission will consider the following items addressed in the request:

(A) uses for which the groundwater in the production area was suitable at baseline water quality levels;

(B) actual existing use of groundwater in the production area prior to and during mining;

(D) the effort made by the permittee to restore the groundwater to baseline;

(E) technology available to restore groundwater for particular parameters;

(F) the ability of existing technology to restore groundwater to baseline quality in the area under consideration;

(G) the cost of further restoration efforts;

(H) the consumption of groundwater resources during further restoration; and

(I) the harmful effects of levels of particular parameter.

(2) The commission may amend the restoration table or range table if it finds that:

(A) reasonable restoration efforts have been undertaken, giving consideration to the factors listed in paragraph (1) of this subsection;

(B) the values for the parameters describing water quality have stabilized for a period of one year;

(C) the formation water present in the exempted portion of the aquifer would be suitable for any use to which it was reasonably suited prior to mining; and

(D) further restoration efforts would consume energy, water, or other natural resources of the state without providing a corresponding benefit to the state.

(3) If the restoration table is amended, stability sampling shall be repeated and conducted as described in subsection (f) of this section, except that only the parameters that were amended in accordance with this subsection will be sampled and a period of two calendar years must elapse between cessation of restoration operations and the final set of stability samples unless the permittee can demonstrate through modeling or other means that a period of less than two years is appropriate for a demonstration of stability.

(4) If the request for an amendment of the restoration table or range table values is not granted, the permittee shall restart restoration efforts.

§331.108. Opportunity for a Contested Case Hearing on a Production Area Authorization Application.

(a) An application for a new production area authorization or an amendment to a production area authorization is not subject to opportunity for a contested case hearing if:

(1) the authorization is for a production area within the boundary of the permit under which the authorization will be issued and the permit includes, for each production area addressed in the application, a range table with values established in accordance with the requirements in §305.49(a)(10) of this title (relating to Additional Contents of Application for an Injection Well Permit);

(2) the application includes, for each production area addressed in the application, a restoration table with restoration parameter values that do not exceed the high values for the respective parameters in the permit range table; [~~and~~]

(3) the application is for a production area within the boundary of the permit under which the [~~proposed~~] authorization will be issued, and the application meets the requirements at §331.104(a) - (d) of this title (relating to Establishment of Baseline and Control Parameters for Excursion Detection) regarding baseline wells; and [or]

(4) not later than 30 days after the date the executive director determines the application to be administratively complete, the Notice of Receipt of Application and Intent to Obtain Permit is mailed to: [the application requests authorization for a new, and subsequent, production area within the permit boundary of a permit after the first production area authorization has been issued for a production area within the permit boundary.]

(A) the owners of the surface of:

(i) the tract of land on which the existing or proposed production area is or will be located; and

(ii) the tracts of land adjacent to the tract of land on which the existing or proposed production area is or will be located;

(B) the owners of mineral rights underlying:

(i) the tract of land on which the existing or proposed production area is or will be located; and

(ii) the tracts of land adjacent to the tract of land on which the existing or proposed production area is or will be located; and

(C) any groundwater conservation district established in the county in which the existing or proposed production area is or will be located.

(b) A restoration table may not be amended to exceed a respective value of the permit range table. [An application to amend a restoration table included in an issued production area authorization is not subject to opportunity for a contested case hearing if the restoration parameter values in the proposed amended restoration table do not exceed the respective values in the permit range table included in the permit under which the production area authorization was issued.]

[(c) An application to amend a restoration table to increase any restoration table value included in an issued production area authorization is subject to opportunity for a contested case hearing if the permit under which the production area authorization was issued does not include a permit range table, established in accordance with the requirements of §305.49(a)(10) of this title.]