Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 37.
FINANCIAL ASSURANCE
Subchapter I. FINANCIAL ASSURANCE FOR PETROLEUM UNDERGROUND STORAGE TANK SYSTEMS
30 TAC §§37.801, 37.802, 37.815, 37.820, 37.825, 37.830, 37.835, 37.840, 37.845, 37.850, 37.855, 37.860, 37.865, 37.870, 37.875, 37.880, 37.885, 37.890, 37.895
The Texas Natural Resource Conservation Commission (TNRCC
or commission) proposes new Chapter 37, Subchapter I, §37.801, Applicability; §37.802,
Definitions; §37.815, Amount and Scope of Required Financial Assurance; §37.820,
Allowable Mechanisms and Combinations of Mechanisms; §37.825, Financial
Test of Self-Insurance; §37.830, Guarantee; §37.835, Insurance and
Risk Retention Group Coverage; §37.840, Surety Bond; §37.845, Letter
of Credit; §37.850, Trust Fund; §37.855, Standby Trust Fund; §37.860,
Substitution of Financial Assurance Mechanisms by Owner or Operator; §37.865,
Cancellation or Non-renewal by a Provider of Financial Assurance; §37.870,
Reporting, Registration and Certification; §37.875, Financial Assurance
Recordkeeping; §37.880, Drawing on Financial Assurance Mechanisms; §37.885,
Release from the Requirements; §37.890, Bankruptcy or Other Incapacity
of Owner or Operator or Provider of Financial Assurance; and §37.895,
Replenishment of Guarantees, Letters of Credit, or Surety Bonds. This proposal
is being made concurrently with proposed changes to Chapter 334.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Proposed new Subchapter I, Financial Assurance for Petroleum Underground
Storage Tank Systems, is proposed to be added to 30 TAC Chapter 37, as the
result of ongoing efforts by the agency at regulatory reform. Chapter 37 is
intended to consolidate all of the agency's financial assurance requirements,
to eliminate redundancy and improve the clarity and readability of these rules.
Currently, financial assurance requirements for petroleum underground storage
tanks (USTs) exist in Chapter 334, Subchapter E, Financial Responsibility.
These requirements are proposed to be repealed in Chapter 334 in a concurrent
rulemaking proposal, and the Subchapter E language is proposed here to be
transferred to Chapter 37, Subchapter I, with amendments. The proposed new
Subchapter I sections were drafted in a two-step process. The first step involved
is to make changes to existing financial assurance requirements for petroleum
USTs based on House Bill (HB) 2815, 76th Legislature, 1999, (an Act relating
to the petroleum storage tank program; providing a penalty) and its amendments
to the Texas Water Code (TWC). The second step proposes changes to eliminate
redundant requirements, to clarify wording and improve readability, to properly
reflect federal requirements concerning local governments, and to consolidate
provisions, whenever possible.
Under this proposal, and the concurrent Chapter 334 proposal, the latter
chapter will recite the general requirement to have financial assurance, and
will refer the reader to Subchapter I for the specific requirements.
A common change made throughout the proposed subchapter includes the use
of "financial assurance" instead of the previously used "financial responsibility."
The proposed new Subchapter I title is, "Financial Assurance for Petroleum
Underground Storage Tank Systems." "Financial Assurance" is used in the subchapter
title instead of "Financial Responsibility," which was used in Chapter 334,
Subchapter E, to more accurately reflect the subject matter and to be compatible
with the rest of Chapter 37. Another change made throughout the proposed subchapter
includes the use of "agency" instead of "executive director" or "commission"
in certain places to be consistent with the agency general definitions in
Chapter 3 of this title.
Proposed Subchapter I is intended to be used in conjunction with concurrent
changes proposed for Chapter 334. Some requirements of the proposed Subchapter
I are also included for compatibility with federal regulations. Proposed Subchapter
I has been modified to reflect the HB 2815 requirement for the creation of
a compliance self-certification program. If the proposed rules are adopted,
the previous wording used for financial assurance certification formerly found
in §334.105 will no longer be applicable. Instead, an owner and/or operator
will look to proposed Chapter 334, §334.8(b) for the requirements of
financial assurance certification.
SECTION BY SECTION DISCUSSION
Unless otherwise noted, all the federal citations in this proposed rulemaking
will be adopted as they currently exist, as well as prospectively amended
by the United States Environmental Protection Agency.
Proposed §37.801, Applicability, is derived from §334.91. Section
37.801(a) is proposed to be amended to read: "This subchapter applies to an
owner and operator of a petroleum underground storage tank (UST) system required
to provide financial assurance under Chapter 334 of this title (relating to
Underground and Aboveground Storage Tanks). This subchapter establishes requirements
and mechanisms for demonstrating financial assurance for corrective action
and third party liability." This amendment clarifies who is required to provide
which types of financial assurance. Section 334.91(b), the second sentence
of §334.91(e), and §334.92 were omitted in the transfer to proposed
Subchapter I because the referenced USTs must now be in compliance with financial
assurance requirements. Section 334.91(d) was not included because references
to general petroleum UST program exclusions and exemptions would be duplicative
of requirements in Chapter 334.
Proposed §37.802, Definitions, is proposed to be added to consolidate
all financial assurance definitions pertaining to the petroleum UST program
in this new subchapter. The definitions of "Accidental release," "Bodily injury,"
"Controlling interest," "Financial reporting year," "Legal defense cost,"
"Property damage," and "Provider financial assurance" were moved from §334.2,
Definitions, to this chapter because the terms only apply to financial assurance
matters. The remaining definitions are new, and are proposed to better implement
both existing and new financial assurance requirements.
Proposed §37.815, Amount and Scope of Required Financial Assurance,
is derived from repealed §334.93, Amount and Scope of Required Financial
Responsibility. In the new section title, "Financial Responsibility" is proposed
to be changed to "Financial Assurance" for consistency with the rest of Chapter
37. In §37.815(f) and (g), "financial" is proposed to be added in front
of "assurance" wherever it appears. In §37.815(f), "owned or operated
by that person" was added for greater clarity.
Proposed §37.820, Allowable Mechanisms and Combinations of Mechanisms,
is derived from §334.94. In §37.820(a)(1), the references to "§334.95
- 334.101" are proposed to be updated to "§37.825 - 37.855"; "petroleum
underground storage tanks" is proposed to be changed to "petroleum underground
storage tank (UST) systems" for greater clarity; and "including a local government
owner or operator" was added to clarify that local government owners and operators
may use the mechanisms in subsections (a)(1) and (a)(2). Section 37.820(a)(2)
is proposed to be added to contain local government financial assurance mechanisms
required under 40 Code of Federal Regulations (CFR), Part 280, Technical Standards
and Corrective Action Requirements for Owners and Operators of Underground
Storage Tanks (UST), and Part 281, Approval of State UST Programs, to achieve
state equivalency with federal requirements. In addition, §37.820(b),
"financial responsibility" is proposed to be changed to "financial assurance"
for consistency with the rest of Chapter 37; and "commission" is proposed
to be changed to "agency."
Proposed §37.825, Financial Test of Self-Insurance, is derived from §334.95,
with proposed changes and reorganization. This test requires an owner, operator,
or guarantor using the financial test for multiple facilities or multiple
programs to include all costs assured through a financial test when calculating
its obligations. The test is intended to assist the owner, operator, or guarantor
in identifying all of the environmental obligations assured under a financial
test. In each instance in this section where the phrase "owner or operator,
and/or guarantor" was originally in §334.95, and that section is being
carried over to §37.825, the phrase has been punctuated as "owner, operator,
and/or guarantor" to improve readability and be consistent with other subchapters
in Chapter 37. In §37.825(a), the reference to "§334.93" is proposed
to be changed to "§37.815"; and the reference to subsection "(g)" is
proposed to be updated to "(c)" due to the reorganization of the section language.
Proposed §37.825(b), with a new heading, was drafted from Subchapter
E, §334.95(b)-(f). The language of proposed §37.825(b)(1) is derived
from former subsection (b). The language in proposed §37.825(b)(1)(A)
is derived from former subsection (b)(1), with the reference to "§334.93"
updated to "§37.815;" and "commission" changed to "agency". The language
in proposed §37.825(b)(1)(B) is derived from former subsection (b)(2),
with "commission" changed to "agency"; and "40 Code of Federal Regulations
(CFR) Parts 264, 265 or state equivalent" added to make the requirement sufficiently
broad. The language in proposed §37.825(b)(1)(C) is derived from former
subsection (b)(3), with "commission" changed to "agency" and the reference
to "§331.46 of this title (relating to Plugging and Abandonment)" changed
to "Chapter 331 of this title (relating to Underground Injection Control)"
and "40 CFR Part 144" to make the requirement sufficiently broad. Proposed §37.825(b)(1)(D)-(F)
were written to ensure that all financial assurance met through a self-insurance
mechanism is included in the financial test information. This is consistent
with the other subchapters in Chapter 37. Proposed §37.825(b)(2) is derived
from former subsection (c), with "The owner or operator, and/or guarantor,
must" deleted because it is no longer needed due to the section's reorganization.
Proposed §37.825(b)(3) is derived from former subsection (d), with "The
owner or operator, and/or guarantor, must" deleted because it is no longer
needed due to the section's reorganization; and the reference to "subsection
(l)" changed to "subsection (d) of this section" due to the reorganization.
Proposed §37.825(b)(4) is derived from former subsection (e), with "The
owner or operator, and/or guarantor, must" deleted because it is no longer
needed due to the section's reorganization. Proposed §37.825(b)(5) is
derived from former subsection (f), without change. Proposed subsection (c),
with a new heading, was drafted from subsections (g)-(l). Proposed §37.825(c)(1)
is derived from former subsection (g), with the references to "40 CFR §264.147(f)(1)
as adopted by paragraph of §335.152(a)(6) of this title (relating to
Standards)" and "§334.93" updated to "§37.541(a) and (b) (relating
to Financial Test for Liability)" and "§37.815," respectively. Proposed §37.825(c)(2)
language is derived from former subsections (h)-(j), with the reference to
"subsection (l)" updated to "subsection (d) of this section." Proposed §37.825(c)(3)
is derived from former subsection (k); however, the language in §37.825(c)(3)(A)
and (B) is new, and was written to further clarify the independent public
accountant audit requirements. Proposed §37.825(d) is derived from former
subsection (l), with the following changes to its figure. The end of the second
paragraph, a "Title 31" is updated to "Title 30;" The third paragraph is proposed
to be deleted because it is duplicative of language proposed to be added following
the original paragraph concerning "other EPA, state equivalent, or agency
regulations." This new paragraph also provides information on each facility
covered. The former table describing financial assurance obligations under
Texas Water Commission regulations is proposed to be deleted and replaced
with a table that encompasses environmental obligations for which financial
assurance is provided through self-insurance under federal, state, or state
equivalent regulations. In the last paragraph prior to Alternative I, references
to "§334.95(b)" and "§334.95(g)" are updated to "§37.825(b)"
and "§37.825(c)" The Alternative I dollar amount listing, item 2 contains
new language to refer back to the "(a)-(e) total" in the previous dollar amount
listing, and in item 12, an update is made in the reference to Dun and Bradstreet's
financial strength rating from "(e)(1) or (k)(1)" to "4A or 5A". In the Alternative
II dollar amount listing, item 2 contains new language to refer back to the
"(a)-(e) total" (the total of the dollars individually shown in paragraphs
a through e) in the dollar amount listing just prior to the Alternative I
and II dollar amount listings. There are corrections proposed to typographical
errors in Alternative II, Items 6, 15, 18, and 19. "New" is changed to "net;"
"lines" is changed to "line;" "or" is changed to "of;" and "from" is changed
to "for;" respectively. Near the end of the Alternative II listing, the reference
to §334.95 is updated to §37.825, and again "Title 31" is updated
to "Title 30." Proposed §37.825(e) is derived from former subsection
(m), without change. Proposed §37.825(f) is derived from former subsection
(n), with "executive director" changed to "agency". Proposed §37.825(g)
is derived from former subsection (o), with the proposed addition of the word
"financial" to "assurance" for clarity.
Proposed §37.830, Guarantee, is derived from §334.96. The language
is proposed to be amended throughout to update all references to Chapter 334,
Subchapter E sections, as well as updating "Title 31" to "Title 30." In addition,
the reference in §37.830(b) to "executive director" is proposed to be
changed to "agency." Also, in Figure 30 TAC §37.830(c), "Texas Water
Commission" is proposed to be updated to "Texas Natural Resource Conservation
Commission (TNRCC)" in its first usage and subsequently to "TNRCC." Also in
this figure, to be consistent with other guarantor requirements already in
Chapter 37, "on behalf of our affiliate" and its parenthetical phrase are
proposed to be removed from the guarantee item 3 language, and in item 5,
"and the Executive Director of the TNRCC" is proposed to be added so that
this agency would also receive a copy of a guarantor notice of bankruptcy.
Proposed §37.835, Insurance and Risk Retention Group Coverage, is
derived from §334.94. All references to Subchapter E sections are proposed
to be updated, and Title "31" is proposed to be updated to Title "30." In
addition, this section is proposed to correctly reference the Texas Natural
Resource Conservation Commission. The following new language is proposed to
be added to update both the certificate of insurance and the endorsement for
changes to the federal financial assurance mechanisms. In item 1 after the
description of the types of releases covered, the phrase "in accordance with
and subject to the limits of liability, exclusions, conditions, and other
terms of the policy;" is added. In item 2d., after "...(insert: "Insurer"
or "Group") the phrase ", except for non-payment of premium or misrepresentation
by the insured," is added. At the end of item 2d., the phrase "Cancellation
for non-payment of premium or misrepresentation by the insured will be effective
only upon written notice and only after expiration of a minimum of 10 days
after a copy of such written notice is received by the insured." is added.
Finally, item 2e, is deleted and replaced with the following text "The insurance
covers claims otherwise covered by the policy that are reported to the (insert
"Insurer" or "Group") within six months of the effective date of cancellation
or non-renewal of the policy except where the new or renewed policy has the
same retroactive date or a retroactive date earlier than that of the prior
policy, and which arise out of any covered occurrence that commenced after
the policy retroactive date, if applicable, and prior to such policy renewal
or termination date. Claims reported during such extended reporting period
are subject to the terms, conditions, limits, including limits of liability,
and exclusions of the policy.)
Proposed §37.840, Surety Bond, is derived from §334.98. All references
to Subchapter E are proposed to be updated, with a further update of changing
Title "31" to Title "30." In addition, this section is proposed to correctly
reference the Texas Natural Resource Conservation Commission.
Proposed §37.845, Letter of Credit, is derived from §334.99,
Letter of Credit. All references to Subchapter E sections are proposed to
be updated, with a further update of changing Title "31" to Title "30." In
addition, this section is proposed to correctly reference Texas Natural Resource
Conservation Commission. A proposed correction to §334.99(a) is made
to change "letter-of-credit" to "letter of credit" to properly refer to the
mechanism. In the figure, the word "of" is proposed to be deleted from the
fourth line of paragraph three to correct a typographical error. Typographical
errors in the figure are proposed for correction in paragraphs six and seven.
The words "from" and "use" are proposed to be changed to "for" and "us," respectively.
Proposed §37.850, Trust Fund, is derived from §334.100, Trust
Fund. All references to Subchapter E sections are proposed to be updated.
The word "subpart" in §37.850(e) is proposed to be changed to "subchapter"
for proper reference.
Proposed §37.855, Standby Trust Fund, is derived from §334.101.
All references to Subchapter E sections are proposed to be updated, as well
as a proposed update changing Title "31" to Title "30." Also, in the figure,
"Texas Water Commission" is proposed to be replaced with "Texas Natural Resource
Conservation Commission (TNRCC)" the first time, and "TNRCC" subsequently,
to update the name of the agency; and to amend the word, "through" to "though"
to correct a typographical error. An additional reference in §37.855(a)
to "§37.840 of this title (relating to Surety Bond)" is proposed. The
reference was inadvertently omitted from §334.101 and is necessary to
be consistent with federal rules and the corresponding requirements in §37.840.
Corrections to typographical errors in the figure are proposed. The word "schedule"
should be capitalized in paragraph two; "therefor" should be "therefore" in
paragraph four; and "instrumentally" in §8c. should be "instrumentality."
The paragraph preceding §5 is proposed to include the phrase "In addition,
the Trustee shall refund to the Grantor such amounts as the Executive Director
specifies in writing." to provide clarity and conform with federal requirements.
Proposed §37.860, Substitution of Financial Assurance Mechanisms by
Owner or Operator, is derived from §334.102, with the §37.860(a)
cross reference to "§334.93" updated to "§37.815".
Proposed §37.865, Cancellation or Non-renewal by a Provider of Financial
Assurance, is derived from §334.103. "A local government guarantee,"
is proposed to be added to §37.865(b) to conform to federal requirements
and the addition of local government mechanisms to this subchapter. Proposed §37.865(c)
includes additional language to conform to federal requirements which allows
a cancellation notice of ten days for non-payment of premium or misrepresentation
by the insured. In §37.865(d), "financial responsibility" is proposed
to be changed to "financial assurance" for consistency with the rest of Chapter
37; and the cross references to "§334.104" and "§334.105" are proposed
to be updated to "§37.870" and "§37.875," respectively.
Proposed §37.870, Reporting, Registration and Certification, is derived
from §334.104, Reporting by Owner or Operator. The section title is proposed
to be changed to reflect new registration language added to §37.870(b).
The proposed subsections are reorganized for greater clarity and readability.
The cross reference to "§334.105" is proposed to be updated to "§37.875;"
and the word "evidence" is proposed to be changed to "proof" for greater clarity
and enforceability. In §37.870(a)(1), the reference to Subchapter D is
proposed to be updated; the phrase "current financial assurance documentation
is already" is proposed to be added for greater clarity; and "commission"
is proposed to be changed to "agency". In §37.870(a)(2), the references
to "§334.95" and "§334.103" are proposed to be updated to "§37.825"
and "§37.865," respectively; and §37.870(4) is proposed to require
current proof of financial responsibility "when requested by the agency" to
facilitate a check of adequate financial assurance by the agency at any time.
Proposed §37.870(b) contains a cross-reference to registration requirements
In §334.7, and provides the regulatory authority for certain financial
assurance information required on the new UST Registration and Self-Certification
Form. Proposed §37.870(c) contains a cross-reference to compliance certification
requirements of §334.8.
Proposed §37.875, Financial Assurance Recordkeeping, is derived from §334.105.
In §37.875(a), the reference to "§334.107" is proposed to be updated
to "§37.885". The phrase "in a timely manner" is proposed to be added
to describe the time frame in which records are required to be made available
to the agency, and "executive director" is proposed to be changed to "agency."
In §37.875(b), "financial responsibility" is proposed to be changed to
"financial assurance" to be consistent with the rest of Chapter 37. In §37.875(b)(1),
the reference to "§§334.95-334.99" is proposed to be updated to
"§§37.825-37.855." including a reference to standby trust funds
for proper cross-reference. In addition, federal regulations in 40 CFR §§280.104-280.107
(relating to Local Government Bond Rating Test, Local Government Financial
Test, Local Government Guarantee, and Local Government Fund, respectively)
concerning local government mechanisms are proposed to be incorporated as
acceptable demonstrations of financial assurance which are required to be
maintained by the owner or operator who qualifies for these options. In §37.875(b)(2),
the following changes are proposed. A reference to the local government test
or local government guarantee is added to conform to federal requirements.
The words "Such evidence" are proposed to be changed to "This documentation"
for greater accuracy and readability. In subsection (b), former paragraph
(5) and its related "Certification of Financial Responsibility" are proposed
to be deleted because the owner or operator will now be required to complete
the required financial assurance information on the registration form provided
by the agency. The new paragraph (5) is proposed to reference federal recordkeeping
requirements applicable to the addition of local government mechanisms to
this subchapter that also directs the reader to the federal rules.
Proposed §37.880, Drawing on Financial Assurance Mechanisms, is derived
from §334.106. Section 37.880(a)(2) is proposed to be amended to change
"executive director" to "agency", and to change "of this chapter" in the reference
to Chapter 334, Subchapter D to "of this title" because this language is no
longer within the same chapter. Section 37.880(b)(1) is proposed to be amended
to change "executive director" to "agency," and to change "of this chapter"
in the reference to Chapter 334, Subchapter D to "of this title" because this
language is no longer within the same chapter. In §37.880(b)'s figure,
"executive director" is proposed to be changed to "agency."
Proposed §37.885, Release from the Requirements, is derived from §334.107.
The term "financial responsibility" is proposed to be changed to "financial
assurance" for consistency with the rest of Chapter 37, "properly closed"
and "closed" are proposed to be changed to "removed from service" to more
accurately reflect the rule requirement, and "this chapter" is proposed to
be changed to "§334.55 of this title (relating to Permanent Removal from
Service)" because the financial assurance subchapter has now been moved to
Chapter 37 and to provide a more specific reference.
Proposed §37.890, Bankruptcy or Other Incapacity of Owner or Operator
or Provider of Financial Assurance, is derived from §334.108. The wording,
"as specified in this subchapter" is proposed to be added to clarify how the
owner or operator should notify the executive director.
Proposed §37.895, Replenishment of Guarantees, Letters of Credit,
or Surety Bonds, is derived from §334.109. The phrase "...local government
guarantee with standby trust," is added to conform to federal requirements
and provide an appropriate reference to an allowed mechanism that like these
other examples requires a standby trust.
Section 334.110, Corrective Action Deductibles, previously in Chapter 334,
Subchapter E, is not proposed to be included in Subchapter I because the same
information is located in §334.312, Owner/Operator Contribution.
FISCAL NOTE
Jeff Horvath, Strategic Planning and Appropriations Division, has determined
that for the first five-year period the proposed rules are in effect, there
will not be significant fiscal implications for the agency or other units
of state and local government as a result of administration or enforcement
of the proposed new Chapter 37, Subchapter I, Financial Assurance for Petroleum
Underground Storage Tank Systems.
The proposed rules are intended to consolidate financial assurance requirements
for petroleum storage tanks into Chapter 37 (a relatively new chapter that
was created to contain all TNRCC financial assurance regulations), make changes
to improve clarity and readability, reorders requirements into a new sequence,
corrects cross references, and implements the requirements of HB 2815. House
Bill 2815 implements a new compliance self-certification process for owners/operators
of USTs containing regulated substances. UST owners/operators will be required
to certify on an annual basis which tanks are in compliance with the listed
regulations (which include financial assurance) and which tanks are not, and
must also post an annual TNRCC delivery certificate at each facility. The
proposed amendments provide the details of how financial assurance is incorporated
into the new compliance self-certification program. Any costs to the state
to implement the proposed rules are not expected to be significant.
The proposed rules would also conform with federal requirements relating
to available financial assurance mechanisms for local governments.
PUBLIC BENEFIT
Mr. Horvath has also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rules will be greater compliance with
financial assurance requirements, which in turn increases the number of leaking
petroleum storage tank sites that are properly and timely assessed and remediated.
There are no significant increased economic costs anticipated to any person
required to comply with the proposed rules because most changes from the repealed
Chapter 334, Subchapter E language involve changes to improve clarity and
readability, reordering requirements into a new sequence, correcting cross
references, and implementing HB 2815 (which necessitates changes to existing
financial assurance certification procedures). It is anticipated that the
self-certification requirement for financial assurance will have no significant
fiscal impact on owners and operators of UST systems containing petroleum
substances because a financial assurance self-certification requirement also
previously existed in repealed Chapter 334, Subchapter E.
SMALL BUSINESS AND MICRO-BUSINESS ANALYSES
No significant adverse economic effects are anticipated to any small businesses
or micro-businesses as a result of implementing the proposed rules because
most changes from the repealed Chapter 334, Subchapter E language involve
editorial changes to improve clarity and readability, reordering requirements
into a new sequence, correcting cross references, and implementing HB 2815
(which necessitates changes to existing financial certification procedures).
Many of the small or micro-businesses could be owners/operators of retail
service stations or convenience stores, and would therefore need to make themselves
familiar with the new procedures for certifying compliance with financial
assurance requirements. The expenses associated with these new procedures
are anticipated to be minimal. Any costs associated with obtaining financial
assurance are not costs associated with these proposed rules, because existing
rules already require financial assurance.
REGULATORY IMPACT ASSESSMENT
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has 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 that statute.
"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. The proposed rules
do not 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 because the proposed rules do
not implement any requirements substantially greater than those in concurrently
repealed Chapter 334, Subchapter E, except those required to implement HB
2815 regarding compliance self-certification and those to properly reflect
federal requirements for financial assurance for local governments. These
changes are anticipated to cause an insignificant increase in cost to affected
facilities and will have no negative impacts on the environment or public
health and safety. In addition, the proposed rules are not a "major environmental
rule" because they do not meet the applicability requirements of a "major
environmental rule" that are specified in Texas Government Code, §2001.0225.
The proposed rules do not exceed a standard set by federal law, exceed an
express requirement of state law, nor conflict with a requirement of a delegation
agreement.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
pursuant to Texas Government Code, §2007.043. The following is a summary
of that assessment. The primary purpose of the rulemaking is to consolidate
the financial assurance requirements in repealed Chapter 334, Subchapter E
into new Chapter 37, Subchapter I, as part of an ongoing effort to consolidate
all agency financial assurance requirements into one rule chapter. Some changes
have been made to these rules to improve clarity and readability, to reorder
requirements into a new sequence, to correct cross references, to implement
HB 2815 (which necessitates changes to existing financial assurance certification
procedures), and to comply with federal requirements concerning financial
assurance mechanisms for local governments. Promulgation and enforcement of
these rules will not burden private real property because it is not the subject
of these rules. Any costs associated with obtaining financial assurance are
not costs associated with these proposed rules, because existing rules already
require financial assurance.
While maintaining that this rulemaking does not create a burden on, or
restrict or limit, private real property, the agency believes that an exemption
under Texas Government Code, §2007.003(b), describes a situation which
could be said to be applicable to the proposed rulemaking. Regarding an action
reasonably taken to fulfill an obligation mandated by federal law, a portion
of this rulemaking concerns ensuring that financial assurance mechanisms for
local government comply with federal requirements per 40 CFR Part 280, Technical
Standards and Corrective Action Requirements for Owners and Operators of Underground
Storage Tanks (USTs).
The rules proposed as part of the commissioner's regulatory reform also
do not create a burden on, or restrict or limit, private real property, because
they are written to streamline and to clarify existing rules. Further, this
rulemaking will not be the cause of a reduction in market value of real property.
This action does not create a burden on private real property and will not
constitute a takings under the Texas Government Code, §2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed this rulemaking pursuant to 31 TAC §505.22
and found that the proposed rulemaking is not subject to the Texas Coastal
Management Program (CMP). The rulemaking package concerning Chapter 334, which
is concurrently being proposed, has been found to be subject to the CMP (see
discussion in that preamble under "Coastal Management Program Consistency
Review"). Part of that package concerns implementing the compliance self-certification
program required under HB 2815 (see discussion under "Fiscal Note"). The rule
language being moved to Chapter 37 in the subject rulemaking contains alterations
to existing certification requirements, taking into account the new certification
program created by HB 2815 and written into the Chapter 334 proposal. The
changes to the certification language in the Chapter 37 proposal concern the
procedures to be used when certifying compliance with financial assurance
requirements, and these changes in and of themselves do not trigger applicability
under the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087;
or faxed to (512) 239-4808. All comments should reference Rule Log Number
1999-038-334-WS. Comments must be received by 5:00 p.m., August 1, 2000. For
further information, please contact John Racanelli, Financial Administration
Division at (512) 239-4989.
STATUTORY AUTHORITY
The new sections are proposed under TWC, §5.103, which provides the
commission authority to adopt any rules necessary to carry out its powers
and duties under this code and other laws of this state and to adopt rules
repealing any statement of general applicability that interprets law or policy; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; and §26.011, which requires the commission
to control the quality of water by rule. The new sections are also proposed
under TWC, §26.345, which provides the commission authority to develop
a regulatory program and to adopt rules regarding UST and aboveground storage
tanks; and §26.352, which requires the commission to adopt by rule requirements
for maintaining evidence of financial responsibility for taking corrective
action and compensating third parties for bodily injury and property damage
caused by sudden and nonsudden accidental releases arising from operating
an UST.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
and Aboveground Storage Tanks.
§37.801. Applicability.
(a)
This subchapter applies to an owner and operator of a
petroleum underground storage tank (UST) system required to provide financial
assurance under Chapter 334 of this title (relating to Underground and Aboveground
Storage Tanks). This subchapter establishes requirements and mechanisms for
demonstrating financial assurance for corrective action and third party liability.
(b)
State and federal governmental entities whose debts and
liabilities are the debts and liabilities of a state or the United States
are exempt from the requirements of this subchapter.
(c)
If the owner and operator of a petroleum UST are separate
persons, only one person is required to demonstrate financial assurance; however,
both parties are liable in the event of noncompliance.
§37.802. Definitions.
General agency terms are defined in Chapter 3 of this title (relating
to Definitions). Definitions for financial assurance terms that appear throughout
this subchapter may alternatively be found in §37.11 of this title (relating
to Definitions) or in §37.402 of this title (relating to Definitions).
Petroleum UST specific terms may be found in Chapter 334, Subchapter A, §334.2
of this title (relating to Definitions). When used in this subchapter, the
following terms shall have the meanings given below, unless otherwise specified.
(1)
Accidental release -- Any sudden or nonsudden release
of petroleum from an UST that results in a need for corrective action and/or
compensation for bodily injury or property damage neither expected nor intended
by the tank owner or operator.
(2)
Bodily injury -- The meaning given to this term by
applicable state law; however, this term shall not include those liabilities
which, consistent with standard insurance industry practices, are excluded
from coverage in liability insurance policies for bodily injury.
(3)
Chief financial officer -- In the case of local government
owners and operators, the individual with the overall authority and responsibility
for the collection, disbursement, and use of funds by the local government.
(4)
Controlling interest -- Direct ownership of at least
50% of the voting stock of another entity.
(5)
Financial reporting year -- The latest consecutive
twelve-month period for which any of the following reports used to support
a financial test is prepared:
(A)
a 10-K report submitted to the United States Securities
and Exchange Commission;
(B)
an annual report of tangible net worth submitted to Dun
and Bradstreet; or
(C)
annual reports submitted to the Energy Information Administration
or the Rural Electrification Administration. Financial reporting year may
thus comprise a fiscal or calendar year period.
(6)
Legal defense cost -- any expense that an owner
or operator or provider of financial assurance incurs in defending against
claims or actions brought:
(A)
by United States Environmental Protection Agency or a
state to require corrective action or to recover the costs of corrective action;
(B)
by or on behalf of a third party for bodily injury or
property damage caused by an accidental release; or
(C)
by any person to enforce the terms of a financial assurance
mechanism.
(7)
Local government -- The meaning given this term
by applicable state law. The term includes:
(A)
counties, municipalities, townships, separately chartered
and operated special districts (including local government public transit
systems and redevelopment authorities), and independent school districts authorized
as governmental bodies by state charter or constitution; and
(B)
special districts and independent school districts established
by counties, municipalities, townships, and other general purpose governments
to provide essential services.
(8)
Occurrence -- An accident, including continuous
or repeated exposure to conditions, which result in a release from an UST.
(9)
Property damage -- The meaning given this term by
applicable state law. This term shall not include those liabilities which,
consistent with standard insurance industry practices, are excluded from coverage
in liability insurance policies for property damage. However, exclusions for
property damage shall not include corrective action associated with releases
from tanks where covered by the policy.
(10)
Provider of financial assurance -- An entity that
provides financial assurance to an owner or operator of an UST through one
of the approved mechanisms.
(11)
Substantial governmental relationship -- The extent
of a governmental relationship necessary under applicable state law to make
an added guarantee contract issued incident to that relationship valid and
enforceable. A guarantee contract is issued "incident to that relationship"
if it arises from a clear commonality of interest in the event of an UST release
such as coterminous boundaries, overlapping constituencies, common ground-water
aquifer, or other relationship other than monetary compensation that provides
a motivation for the guarantor to provide a guarantee.
§37.815. Amount and Scope of Required Financial Assurance.
(a)
Owners or operators of petroleum underground storage tanks
(USTs) must demonstrate financial assurance for taking corrective action and
for compensating third parties for bodily injury and property damage caused
by accidental releases arising from the operation of petroleum USTs in at
least the following per-occurrence amounts:
(1)
for owners or operators of petroleum USTs that are located
at petroleum marketing facilities, or that handle an average of more than
10,000 gallons of petroleum per month based on annual throughput for the previous
calendar year, $1 million; or
(2)
for all other owners or operators of petroleum USTs;
$500,000.
(b)
Owners or operators of petroleum USTs must demonstrate
financial assurance for taking corrective action and for compensating third
parties for bodily injury and property damage caused by accidental releases
arising from the operation of petroleum USTs in at least the following annual
aggregate amounts:
(1)
for owners or operators of 1 to 100 petroleum USTs within
the United States, $1 million; and
(2)
for owners or operators of 101 or more petroleum
USTs within the United States, $2 million.
(c)
For the purposes of subsections (b) and (f) of this section
only, petroleum UST means a single containment unit and does not mean combinations
of single containment units.
(d)
Except as provided in subsection (e) of this section,
the amount of assurance provided by each mechanism or combination of mechanisms
must be in the full amount specified in subsections (a) and (b) of this section,
if the owner or operator uses separate mechanisms or separate combinations
of mechanisms to demonstrate financial assurance for:
(1)
taking corrective action;
(2)
compensating third parties for bodily injury and
property damage caused by sudden accidental releases; or
(3)
compensating third parties for bodily injury and
property damage caused by nonsudden accidental releases
(e)
If the owner or operator uses separate mechanisms or separate
combinations of mechanisms to demonstrate financial assurance for different
petroleum USTs, the annual aggregate required shall be based on the number
of tanks covered by each separate mechanism or combination of mechanisms.
(f)
Owners or operators shall review the amount of aggregate
financial assurance provided whenever additional petroleum USTs are acquired
or installed. If the number of petroleum USTs within the United States owned
or operated by that person for which financial assurance must be provided
exceeds 100, the owner or operator shall demonstrate financial assurance in
the amount of at least $2 million of annual aggregate by the anniversary of
the date on which the mechanism demonstrating financial assurance became effective.
If financial assurance is being demonstrated by a combination of mechanisms,
the owner or operator shall demonstrate financial assurance in the amount
of at least $2 million of annual aggregate by the first-occurring effective
date anniversary of any one of the mechanisms combined (other than a financial
test or guarantee) to provide financial assurance.
(g)
The amounts of financial assurance required under this
section exclude legal defense costs.
(h)
The required per-occurrence and annual aggregate coverage
amounts do not in any way limit the liability of the owner or operator.
§37.820. Allowable Mechanisms and Combinations of Mechanisms.
(a)
Subject to the limitations of subsections (b) and (c)
of this section:
(1)
an owner or operator, including a local government owner
or operator, may use any one or combination of the mechanisms listed in §37.825
of this title (relating to Financial Test of Self-Insurance), §37.830
of this title (relating to Guarantee), §37.835 of this title (relating
to Insurance and Risk Retention Group Coverage), §37.840 of this title
(relating to Surety Bond), §37.845 of this title (relating to Letter
of Credit), §37.850 of this title (relating to Trust Fund), and §37.855
of this title (relating to Standby Trust Fund) to demonstrate financial assurance
under this subchapter for one or more underground storage tank (UST) systems;
and
(2)
A local government owner or operator may use any
one or a combination of the mechanisms listed in 40 Code of Federal Regulations §§280.104
- 280.107 (relating to Local Government Bond Rating Test, Local Government
Financial Test, Local Government Guarantee, Local Government Fund, respectively)
to demonstrate financial assurance under this subchapter for one or more USTs.
(b)
An owner or operator may use a guarantee or surety bond
to establish financial assurance only if the Attorney General of Texas has
submitted a written statement to the agency that a guarantee or surety bond
executed as described in this section is a legally valid and enforceable obligation
in the state.
(c)
An owner or operator may use self-insurance in combination
with a guarantee only if, for the purpose of meeting the requirements of the
financial test under this rule, the financial statements of the owner or operator
are not consolidated with the financial statements of the guarantor.
§37.825. Financial Test of Self-Insurance.
(a)
An owner, operator, and/or guarantor, may satisfy the
requirements of §37.815 of this title (relating to Amount and Scope of
Required Financial Assurance) by passing a financial test as specified in
this section. To pass the financial test of self-insurance, the owner, operator,
and/or guarantor must meet the criteria of subsections (b) or (c) of this
section based on year-end financial statements for the latest completed fiscal
year.
(b)
The owner, operator, and/or guarantor must meet the requirements
of this subsection referred to as Alternative 1. The owner, operator, and/or
guarantor must:
(1)
Have a tangible net worth of at least ten times:
(A)
the total of the applicable aggregate amount required
by §37.815 of this title based on the number of underground storage tanks
for which a financial test is used to demonstrate financial assurance to the
agency under this section;
(B)
the sum of the corrective action cost estimates, the current
closure and post-closure care cost estimates, and amount of liability coverage
for which a financial test is used to demonstrate financial assurance to the
agency under Chapter 335 of this title (relating to Industrial Solid Waste
and Municipal Hazardous Waste), 40 Code of Federal Regulations (CFR) Parts
264, 265, or state equivalent;
(C)
the sum of current plugging and abandonment cost estimates
for which a financial test is used to demonstrate financial assurance to the
agency under Chapter 331 of this title (relating to Underground Injection
Control), 40 CFR Part 144 or state equivalent;
(D)
the sum of municipal solid waste cost estimates for which
a financial test is used to demonstrate financial assurance to the agency
under Chapter 330 (relating to Municipal Solid Waste), 40 CFR Part 258 or
state equivalent;
(E)
the sum of current polychlorinated biphenyl (PCB) cost
estimates for which a financial test is used to demonstrate financial assurance
to the United States Environmental Protection Agency (EPA) under 40 CFR Part
761; and
(F)
the sum of additional environmental obligations not identified
above.
(2)
Have a tangible net worth of at least $10 million.
(3)
Have a letter signed by the chief financial officer
as specified in subsection (d) of this section.
(4)
Either:
(A)
file financial statements annually with the United States
Securities and Exchange Commission (SEC), the Energy Information Administration,
or the Rural Electrification Administration; or
(B)
report annually the firm's tangible net worth to Dun and
Bradstreet, and Dun and Bradstreet must have assigned the firm a financial
strength rating of 4A or 5A.
(5)
The firm's year-end financial statements, if
independently audited, cannot include an adverse auditor's opinion, a disclaimer
of opinion, or a "going concern" qualification.
(c)
The owner, operator, and/or guarantor must meet the requirements
of this subsection referred to as Alternative 2.
(1)
The owner, operator, and/or guarantor must meet the financial
test requirements of §37.541(a) and (b) of this title (relating to Financial
Test for Liability), substituting the appropriate amounts specified in §37.815(b)(1)
and (2) of this title for the "amount of liability coverage" each time specified
in that section.
(2)
The fiscal year-end financial statements of the owner
or operator, and/or guarantor, must be examined by an independent certified
public accountant and be accompanied by the accountant's report of the examination.
(A)
The firm's year-end financial statements cannot include
an adverse auditor's opinion, a disclaimer of opinion, or a "going concern"
qualification.
(B)
The owner, operator, and/or guarantor, must have a letter
signed by the chief financial officer as specified in subsection (d) of this
section.
(3)
If the financial statements of the owner, operator,
and/or guarantor, are not submitted annually to the SEC, the Energy Information
Administration or the Rural Electrification Administration, the owner, operator,
and/or guarantor, must obtain a special report by an independent certified
public accountant stating that:
(A)
the accountant has compared the data which the letter
from the chief financial officer specifies as having been derived from the
independently audited, year-end financial statements for the latest fiscal
year with the amounts in such financial statements; and
(B)
in connection with that procedure:
(i)
such amounts were found to be in agreement; or
(ii)
no matters came to the attention of the independent certified
public accountant which indicated that the specified data should be adjusted.
(d)
To demonstrate that it meets the financial test under
subsection (b) or (c) of this section, the chief financial officer of the
owner, operator, and/or guarantor, must sign, within 120 days of the close
of each financial reporting year, as defined by the 12-month period for which
financial statements used to support the financial test are prepared, a letter
worded exactly as follows, except that the instructions in parentheses are
to be replaced by the relevant information and the parentheses deleted.
Figure: 30 TAC §37.825(d)
(e)
If an owner or operator using the test to provide financial
assurance finds that he or she no longer meets the requirements of the financial
test based on the year-end financial statements, the owner or operator must
obtain alternative coverage within 150 days of the end of the year for which
financial statements have been prepared.
(f)
The agency may require reports of financial condition
at any time from the owner, operator, and/or guarantor. If the agency finds,
on the basis of these reports or other information, that the owner, operator,
and/or guarantor, no longer meets the financial test requirements of subsections
(b) or (c) and (d) of this section, the owner or operator must obtain alternative
coverage within 30 days after notification of this finding.
(g)
If the owner or operator fails to obtain alternate financial
assurance within 150 days of finding that he or she no longer meets the requirements
of the financial test based on the year-end financial statements, or within
30 days of notification by the executive director that he or she no longer
meets the requirements of the financial test, the owner or operator must notify
the executive director of this failure within ten days.
§37.830. Guarantee.
(a)
An owner or operator may satisfy the requirements of §37.815
of this title (relating to Amount and Scope of Required Financial Responsibility)
by obtaining a guarantee that conforms to the requirements of this section.
The guarantor must be:
(1)
a firm that:
(A)
possesses a controlling interest in the owner or operator;
(B)
possesses a controlling interest in a firm described under
subparagraph (A) of this paragraph; or
(C)
is controlled through stock ownership by a common parent
firm that possesses a controlling interest in the owner or operator; or
(2)
a firm engaged in a substantial business relationship
with the owner or operator and issuing the guarantee as an act incident to
that business relationship.
(b)
Within 120 days of the close of each financial reporting
year the guarantor must demonstrate that it meets the financial test criteria
of §37.825 of this title (relating to Financial Test of Self-Insurance)
based on year-end financial statements for the latest completed financial
reporting year by completing the letter from the chief financial officer described
in §37.825(d) of this title and must deliver the letter to the owner
or operator. If the guarantor fails to meet the requirements of the financial
test at the end of any financial reporting year, within 120 days of the end
of that financial reporting year the guarantor shall send by certified mail,
before cancellation or nonrenewal of the guarantee, notice to the owner or
operator. If the agency notifies the guarantor that he or she no longer meets
the requirements of the financial test of §37.825(b) or (c) and (d) of
this title the guarantor must notify the owner or operator within ten days
of receiving this notification from the agency. In both cases, the guarantee
will terminate no less than 120 days after the date the owner or operator
receives the notification, as evidenced by the return receipt. The owner or
operator must obtain alternate coverage as specified in §37.890(c) of
this title (relating to Bankruptcy or Other Incapacity of Owner or Operator
or Provider of Financial Assurance).
(c)
The guarantee must be worded as follows, except that instructions
in parentheses are to be replaced with the relevant information and the parentheses
deleted.
Figure: 30 TAC §37.830(c)
(d)
An owner or operator who uses a guarantee to satisfy the
requirements of §37.815 of this title must establish a standby trust
fund when the guarantee is obtained. Under the terms of the guarantee, all
amounts paid by the guarantor under the guarantee will be deposited directly
into the standby trust fund in accordance with instructions from the executive
director under §37.880 of this title. This standby trust fund must meet
the requirements specified in §37.855 of this title (relating to Standby
Trust Fund).
§37.835. Insurance and Risk Retention Group Coverage.
(a)
An owner or operator may satisfy the requirements of §37.815
of this title (relating to Amount and Scope of Required Financial Responsibility)
by obtaining liability insurance that conforms to the requirements of this
section from a qualified insurer or risk retention group. This insurance may
be in the form of a separate insurance policy or an endorsement to an existing
insurance policy.
(b)
Each insurance policy must be amended by an endorsement
as specified in paragraph (1) of this subsection or evidenced by a certificate
of insurance as specified in paragraph (2) of this subsection, except that
instructions in parentheses must be replaced with the relevant information
and the parentheses deleted.
(1)
Endorsement.
Figure: 30 TAC §37.835(b)(1)
(2)
Certificate of Insurance
Figure: 30 TAC §37.835(b)(2)
(c)
Each insurance policy must be issued by an insurer or
a risk retention group that, at a minimum, is licensed to transact the business
of insurance or is eligible to provide insurance as an excess or surplus lines
insurer in Texas.
§37.840. Surety Bond.
(a)
An owner or operator may satisfy the requirements of §37.815
of this title (relating to Amount and Scope of Required Financial Responsibility)
by obtaining a surety bond that conforms to the requirements of this section.
The surety company issuing the bond must be among those listed as acceptable
sureties on federal bonds in the latest Circular 570 of the United States
Department of the Treasury.
(b)
The surety bond must be worded as follows, except that
instructions in parentheses must be replaced with the relevant information
and the parentheses deleted.
Figure: 30 TAC §37.840(b)
(c)
Under the terms of the bond, the surety will become liable
on the bond obligation when the owner or operator fails to perform as guaranteed
by the bond. In all cases, the surety's liability is limited to the per-occurrence
and annual aggregate penal sums.
(d)
The owner or operator who uses a surety bond to satisfy
the requirements of §37.815 of this title must establish a standby trust
fund when the surety bond is acquired. Under the terms of the bond, all amounts
paid by the surety under the bond will be deposited directly into the standby
trust fund in accordance with instructions from the executive director under §37.880
of this title (relating to Drawing on Financial Assurance Mechanisms). This
standby trust fund must meet the requirements specified in §37.855 of
this title (relating to Standby Trust Fund).
§37.845. Letter of Credit.
(a)
An owner or operator may satisfy the requirements of §37.815
of this title (relating to Amount and Scope of Required Financial Responsibility)
by obtaining an irrevocable standby letter of credit that conforms to the
requirements of this section. The issuing institution must be an entity that
has the authority to issue letters of credit in Texas and whose letter of
credit operations are regulated and examined by a federal or state agency.
(b)
The letter of credit must be worded as follows, except
that instructions in parentheses are to be replaced with the relevant information
and the parentheses deleted.
Figure: 30 TAC §37.845(b)
(c)
An owner or operator who uses a letter of credit to satisfy
the requirements of §37.815 of this title must also establish a standby
trust fund when the letter of credit is acquired. Under the terms of the letter
of credit, all amounts paid under a draft by the executive director will be
deposited by the issuing institution directly into the standby trust fund
in accordance with instructions from the executive director under §37.880
of this title (relating to Drawing on Financial Assurance Mechanisms). This
standby trust fund must meet the requirements specified in §37.855 of
this title (relating to Standby Trust Fund).
(d)
The letter of credit must be irrevocable with a term specified
by the issuing institution. The letter of credit must provide that credit
be automatically renewed for the same term as the original term, unless, at
least 120 days before the current expiration date, the issuing institution
notifies the owner or operator by certified mail of its decision not to renew
the letter of credit. Under the terms of the letter of credit, the 120 days
will begin on the date when the owner or operator receives the notice, as
evidenced by the return receipt.
§37.850. Trust Fund.
(a)
An owner or operator may satisfy the requirements of §37.815
of this title (relating to Amount and Scope of Required Financial Assurance)
by establishing a trust fund that conforms to the requirements of this section.
The trustee must be an entity that has the authority to act as a trustee and
whose trust operations are regulated and examined by a federal agency or an
agency of the State of Texas.
(b)
The wording of the trust agreement must be identical to
the wording specified in §37.855(b) of this title (relating to Standby
Trust Fund), and must be accompanied by a formal certification of acknowledgment
as specified in §37.855(c) of this title.
(c)
The trust fund, when established, must be funded for the
full required amount of coverage, or funded for part of the required amount
of coverage and used in combination with other mechanism(s) that provide the
remaining required coverage.
(d)
If the value of the trust fund is greater than the required
amount of coverage, the owner or operator may submit a written request to
the executive director for release of the excess.
(e)
If other financial assurance as specified in this subchapter
is substituted for all or part of the trust fund, the owner or operator may
submit a written request to the executive director for release of the excess.
(f)
Within 60 days after receiving a request from the owner
or operator for release of funds as specified in subsections (d) or (e) of
this section, the executive director will instruct the trustee to release
to the owner or operator such funds as the executive director specifies in
writing.
§37.855. Standby Trust Fund.
(a)
An owner or operator using any one of the mechanisms authorized
by §37.830 of this title (relating to Guarantee), §37.840 of this
title (relating to Surety Bond), or §37.845 of this title (relating to
Letter of Credit) must establish a standby trust fund when the mechanism is
acquired. The trustee of the standby trust fund must be an entity that has
the authority to act as a trustee and whose trust operations are regulated
and examined by a federal agency or an agency of the State of Texas.
(b)
The standby trust agreement or trust agreement must be
worded as follows, except the instructions in parentheses are to be replaced
with the relevant information and the parentheses deleted.
Figure: 30 TAC §37.855(b)
(c)
The standby trust agreement or trust agreement must be
accompanied by a formal certification of acknowledgment similar to the following:
Figure: 30 TAC §37.855(c)
(d)
The executive director will instruct the trustee to refund
the balance of the standby trust fund to the provider of financial assurance
if the executive director determines that no additional corrective action
costs or third-party liability claims will occur as a result of a release
covered by the financial assurance mechanism for which the standby trust fund
was established.
(e)
An owner or operator may establish one trust fund as the
depository mechanism for all funds assured in compliance with this rule.
§37.860. Substitution of Financial Assurance Mechanisms by Owner or Operator.
(a)
An owner or operator may substitute any alternate financial
assurance mechanisms as specified in this subchapter provided that at all
times he or she maintains an effective financial assurance mechanism or combination
of mechanisms that satisfies the requirements of §37.815 of this title
(relating to Amount and Scope of Required Financial Responsibility).
(b)
After obtaining alternate financial assurance as specified
in this subchapter, an owner or operator may cancel a financial assurance
mechanism by providing notice to the provider of financial assurance.
§37.865. Cancellation or Non-renewal by a Provider of Financial Assurance.
(a)
Except as otherwise provided, a provider of financial
assurance may cancel or fail to renew an assurance mechanism by sending a
notice of termination by certified mail to the owner or operator.
(b)
Termination of a guarantee, a local government guarantee,
a surety bond, or a letter of credit may not occur until 120 days after the
date on which the owner or operator receives the notice of termination, as
evidenced by the return receipt.
(c)
Termination of insurance or risk retention group coverage,
except for non-payment or misrepresentation by the insured, or state-funded
assurance may not occur until 60 days after the date on which the owner or
operator receives the notice of termination, as evidenced by the return receipt.
Termination for non-payment of premium or misrepresentation by the insured
may not occur until a minimum of ten days after the date on which the owner
or operator receives the notice of termination, as evidenced by the return
receipt.
(d)
If a provider of financial assurance cancels or fails
to renew for reasons other than incapacity of the provider as specified in §37.870
of this title (relating to Reporting, Registration, and Certification), the
owner or operator must obtain alternate coverage as specified in this section
within 60 days after receipt of the notice of termination. If the owner or
operator fails to obtain alternate coverage within 60 days after receipt of
the notice of termination, the owner or operator must notify the executive
director of this failure and submit:
(1)
the name and address of the provider of financial assurance;
(2)
the effective date of termination; and
(3)
the evidence of the financial assurance mechanism
subject to the termination maintained in accordance with §37.875(b) of
this title (relating to Financial Assurance Recordkeeping).
§37.870. Reporting, Registration, and Certification.
(a)
Reporting. An owner or operator must submit the appropriate
forms listed in §37.875(b) of this title (relating to Financial Assurance
Recordkeeping) documenting current proof of financial assurance to the executive
director:
(1)
within 30 days after the owner or operator identifies
a release from an underground storage tank (UST) required to be reported under
Chapter 334, Subchapter D of this title (relating to Release Reporting and
Corrective Action), unless current financial assurance documentation is already
on file with the agency;
(2)
if the owner or operator fails to obtain alternate
coverage as required by this subchapter, within 30 days after the owner or
operator receives notice of:
(A)
commencement of a voluntary or involuntary proceeding
under Title 11 (Bankruptcy), United States Code, naming a provider of financial
assurance as a debtor;
(B)
suspension or revocation of the authority of a provider
of financial assurance to issue a financial assurance mechanism;
(C)
failure of a guarantor to meet the requirements of the
financial test; or
(D)
other incapacity of a provider of financial assurance;
(3)
as required by §37.825 of this title (relating
to Financial Test of Self Insurance) and §37.865 of this title (relating
to Cancellation or Non-renewal by a Provider of Financial Assurance); or
(4)
when requested by the agency.
(b)
Registration. An owner or operator must register and update
the registration whenever there is a change in the financial assurance mechanism
or coverage amount, as specified in §334.7 of this title (relating to
Registration for Underground Storage Tanks (USTs) and UST systems). The owner
or operator must identify, in the appropriate space on the authorized agency
form, the financial assurance mechanisms used to demonstrate compliance with
corrective action and third party liability as described in this subchapter.
(c)
For certification requirements for petroleum USTs, refer
to §334.8(b) of this title (relating to Certification for Underground
Storage Tanks (USTs) and UST systems).
§37.875. Financial Assurance Recordkeeping.
(a)
Owners or operators must maintain evidence of all financial
assurance mechanisms used to demonstrate financial assurance under this subchapter
for a petroleum underground storage tank (UST) until released from the requirements
of this subchapter under §37.885 of this title (relating to Release from
the Requirements). An owner or operator must maintain this evidence at the
UST site or the owner's or operator's place of business. Records maintained
off-site must be made available in a timely manner upon request of the agency.
(b)
An owner or operator must maintain the following types
of evidence of financial assurance.
(1)
An owner or operator using a financial assurance mechanism
specified in §37.825 of this title (relating to Financial Test of Self-Insurance), §37.830
of this title (relating to Guarantee), §37.835 of this title (relating
to Insurance and Risk Retention Group Coverage), §37.840 of this title
(relating to Surety Bond), §37.845 of this title (relating to Letter
of Credit), §37.850 of this title (relating to Trust Fund), §37.855
of this title (relating to Standby Trust Fund), and 40 Code of Federal Regulations §§280.104
- 280.107 (relating to Local Government Bond Rating Test, Local Government
Financial Test, Local Government Guarantee, and Local Government Fund, respectively)
must maintain a copy of the instrument worded as specified.
(2)
An owner or operator using a financial test or guarantee,
or a local government financial test, or a local government guarantee supported
by the local government financial test must maintain a copy of the chief financial
officer's letter based on year-end financial statements for the most recent
completed financial reporting year. This documentation must be on file no
later than 120 days after the close of the financial reporting year.
(3)
An owner or operator using a guarantee, surety bond,
or letter of credit must maintain a copy of the signed standby trust fund
agreement and copies of any amendments to the agreement.
(4)
An owner or operator using an insurance policy or
risk retention group coverage must maintain a copy of the signed insurance
policy or risk retention group coverage policy, with the endorsement or certificate
of insurance and any amendments to the agreements.
(5)
A local government owner or operator must comply
with the recordkeeping requirements of 40 CFR §280.111(b)(4)-(6) and
(9)-(10) as applicable to the local government mechanism used to demonstrate
financial assurance.
§37.880. Drawing on Financial Assurance Mechanisms.
(a)
The executive director shall require the guarantor, surety,
or institution issuing a letter of credit to place the amount of funds stipulated
by the executive director, up to the limit of funds provided by the financial
assurance mechanism, into the standby trust if:
(1)
the owner or operator fails to establish alternate financial
assurance within 60 days after receiving notice of cancellation of the guarantee,
surety bond, letter of credit, or, as applicable, other financial assurance
mechanism; and
(2)
the agency determines or suspects that a release
from an underground storage tank (UST) covered by the mechanism has occurred
and so notifies the owner or operator or the owner or operator has notified
the executive director under Chapter 334, Subchapter D of this title (relating
to Release Reporting and Corrective Action) of a release from an UST covered
by the mechanism; or
(3)
the conditions of subsections (b)(1) or (2)(A) or
(B) of this section are satisfied.
(b)
The executive director may draw on a standby trust fund
when:
(1)
the agency makes a final determination that a release
has occurred and immediate or long-term corrective action for the release
is needed, and the owner or operator, after appropriate notice and opportunity
to comply, has not conducted corrective action as required under Chapter 334,
Subchapter D of this title; or
(2)
the executive director has received either:
(A)
certification from the owner or operator and the third-party
liability claimant(s) and from attorneys representing the owner or operator
and the third-party liability claimant(s) that the third-party liability claim
should be paid. The certification must be worded as follows, except that instructions
in parentheses are to be replaced with the relevant information and the parentheses
deleted:; or
Figure 30 TAC §37.880(b)(2)(A)
(B)
a valid final court order establishing a judgment against
the owner or operator for bodily injury or property damage caused by an accidental
release from an UST covered by financial assurance under this subchapter and
the agency determines that the owner or operator has not satisfied the judgment.
(c)
If the agency determines that the amount of corrective
action costs and third-party liability claims eligible for payment under subsection
(b) of this section may exceed the balance of the standby trust fund and the
obligation of the provider of financial assurance, the first priority for
payment shall be corrective action costs necessary to protect human health
and the environment. The executive director shall pay third-party liability
claims in the order in which the executive director receives certifications
under subsection (b)(2)(A) of this section and valid court orders under subsection
(b)(2)(B) of this section.
§37.885. Release from the Requirements.
An owner or operator is no longer required to maintain financial assurance
under this subchapter for an underground storage tank after the tank has been
removed from service or, if corrective action is required, after corrective
action has been completed and the tank has been properly removed from service
in accordance with the requirements of §334.55 of this title (relating
to Permanent Removal from Service).
§37.890. Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance.
(a)
Within ten days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), United States Code, naming an owner
or operator as debtor, the owner or operator must notify the executive director
by certified mail of this commencement and submit the appropriate forms listed
in §37.875 of this title (relating to Financial Assurance Recordkeeping)
documenting current financial responsibility.
(b)
Within ten days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), United States Code, naming a guarantor
providing financial assurance as debtor, this guarantor must notify the owner
or operator by certified mail of this commencement as required under §37.830
of this title (relating to Guarantee).
(c)
An owner or operator who obtains financial assurance by
a mechanism other than the financial test of self-insurance will be deemed
to be without the required financial assurance in the event of a bankruptcy
or incapacity of its provider of financial assurance, or a suspension or revocation
of the authority of the provider of financial assurance to issue a guarantee,
insurance policy, risk retention group coverage policy, surety bond, letter
of credit, or state-required mechanism. The owner or operator must obtain
alternate financial assurance as specified in this subchapter within 30 days
after receiving notice of this event. If the owner or operator does not obtain
alternate coverage within 30 days after this notification, he or she must
notify the executive director as specified in this subchapter.
§37.895. Replenishment of Guarantees, Letters of Credit, or Surety Bonds.
(a)
If at any time after a standby trust is funded upon the
instruction of the executive director with funds drawn from a guarantee, local
government guarantee with standby trust, letter of credit, or surety bond,
and the amount in the standby trust is reduced below the full amount of coverage
required, the owner or operator shall by the anniversary date of the financial
mechanism from which the funds were drawn:
(1)
replenish the value of financial assurance to equal the
full amount of coverage required; or
(2)
acquire another financial assurance mechanism for
the amount by which funds in the standby trust have been reduced.
(b)
For purposes of this section, the full amount of coverage
required is the amount of coverage specified in §37.815 of this title
(relating to Amount and Scope of Required Financial Assurance). If a combination
of mechanisms was used to provide the assurance funds which were drawn upon,
replenishment shall occur by the earliest anniversary date among the mechanisms.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 19, 2000.
TRD-200003500
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
Subchapter A. GENERAL PERMITS FOR WASTE DISCHARGES
30 TAC §§205.1 - 205.7
The Texas Natural Resource Conservation Commission (commission)
proposes amendments to Chapter 205, §205.1, Definitions; §205.2,
Purpose and Applicability; §205.3, Public Notice, Public Meetings, and
Public Comment; §205.4, Authorizations and Notices of Intent; §205.5,
Permit Duration, Amendment, and Renewal; §205.6, Annual Fee Assessments;
and new §205.7, Additional Characteristics and Conditions for General
Permits.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The new and amended sections of Chapter 205 are proposed to implement House
Bill (HB) 1283, which amended Texas Water Code (TWC), §26.040, and became
law as an act of the 76th Texas Legislature, 1999. Among other changes, this
proposal addresses the provisions of HB 1283 by removing the limitation that
general permits cannot authorize discharges of more than 500,000 gallons in
any 24-hour period; by providing that the commission may issue a general permit
for storm water discharges without having to make the findings required by
TWC, §26.040(a)(1)-(5) for other categories of discharges; and by adding
a requirement that the commission deny or suspend a discharger's authority
under a general permit if the commission determines that the discharger operates
any facility for which the discharger's compliance history contains violations
constituting a recurring pattern of egregious conduct that demonstrates a
consistent disregard for the regulatory process, including a failure to make
a timely and substantial attempt to correct the violations. The new and amended
sections are also being proposed to simplify the rule language, change the
term "commission" to "executive director" or "agency," as appropriate, and
to clarify the requirements and procedures for issuing a general permit and
obtaining authorization for discharge under a general permit.
SECTION BY SECTION DISCUSSION
Section 205.1, concerning Definitions, is proposed to be amended to include
new definitions for terms used in §205.4(e) as part of the implementation
of the HB 1283 changes to TWC, §26.040. The proposed amendments also
include the deletion of certain terms used in §205.2, because these terms
are self-explanatory, and they are the same as those found in the United States
Environmental Protection Agency's (EPA) regulations for general permits found
in 40 Code of Federal Regulations (CFR) §122.28. The commission believes
that definitions for these terms are not needed, and their inclusion could
possibly be confusing to the public. Also, statutory references have been
reformatted for consistency throughout the section.
Section 205.1(1) is proposed to be amended to define "compliance history"
based on TWC, §26.040(h), which requires the commission to consider the
compliance history of all violations by the discharger. The commission is
proposing to adopt the definition of "compliance history," as follows: "The
record of all notices from the commission, including notices of violation
from the executive director; and of all orders of the commission, of any other
agency or political subdivision of the State of Texas and of the United States
Environmental Protection Agency (USEPA) pertaining to an applicant's adherence
to environmental laws and rules of the State of Texas or the United States;
with the terms of any permit, compliance agreement or order issued by the
commission or the USEPA; and with any final judicial decision or settlement
addressing the applicant's adherence to such environmental laws and rules.
The history shall be for the five-year period before the date on which the
NOI is filed or, if an NOI is not required, the five-year period before the
permittee begins operating under the general permit. It shall not include
any order that is precluded by its terms or by law from becoming part of the
applicant's compliance history."
The commission requests comments regarding methods of identifying the record
of all orders of other agencies and political subdivisions of the State of
Texas, pertaining to an applicant's adherence to environmental laws and rules
of the State of Texas or the United States; with the terms of any permit,
compliance agreement or order issued by the commission or the USEPA; and with
any final judicial decision or settlement addressing the applicant's adherence
to such environmental laws and rules.
Proposed §205.1(2) is the definition of "general permit," which is
under current §205.1(1), with the proposed change of the word "waters"
to the singular "water." It has been reformatted to paragraph (2) to account
for the addition of the new definition under paragraph (1).
Proposed §205.1(3) is the definition of "individual permit," which
is the definition under current paragraph (2) reformatted as paragraph (3).
Section 205.1(4) is proposed to be amended to add a definition for "notice
of change or NOC," as follows: "A written submittal to the executive director
from a discharger authorized under a general permit providing information
on changes to information previously provided to the agency, or any changes
with respect to the nature or operations of the facility, or the characteristics
of the discharge." This definition is proposed to provide clarification of
the requirement under proposed §205.4(h) that general permits require
a person authorized to discharge waste under a general permit to submit up-to-date
information to the executive director in a notice of change not later than
ten days prior to a change in previous information provided to the agency
or any other change with respect to the nature or operations of the facility
or the characteristics of the discharge.
Existing §205.1(4)-(7) is proposed to be deleted because the commission
believes that these terms are self-explanatory, as discussed earlier in this
preamble. The terms proposed for deletion are "same or similar monitoring
requirements," "same or substantially similar types of operations," "same
requirements regarding operating conditions," and "same type of waste."
Section 205.1(5) is the definition of "notice of intent or NOI," which
is the definition under current paragraph (3) reformatted to paragraph (7).
Section 205.1(6) is proposed to be amended to add a definition for "notice
of termination or NOT," as follows: "A written submittal to the executive
director from a discharger authorized under a general permit requesting termination
of coverage." This definition is proposed to provide clarification of the
requirement under proposed §205.4(h) that general permits require when
the ownership of the facility changes or is transferred, a notice of termination
must be submitted by the present owner, and the new owner must submit a new
NOI not later than ten days prior to the change in ownership.
Proposed §205.1(7) is the definition of "Texas Pollutant Discharge
Elimination System (TPDES)," which is the definition under current paragraph
(8) reformatted to paragraph (7), with the statutory references to the Clean
Water Act rearranged for clarity and a proposed typographical correction of
the word "Systems" to "System."
Section 205.2, concerning Purpose and Applicability, is proposed to be
amended to eliminate the 500,000-gallon per day cap on discharges that may
be authorized by a general permit, in accordance with HB 1283. The proposed
changes also provide that the commission may issue a general permit for storm
water discharges without having to make the findings required by TWC, §26.040(1)-(5)
for other categories of discharges, along with other clarifications. The proposed
language under §205.2(a)(5)(A) and (B) is reformatted language from existing §205.2(c)(1)
and (2), with the aforementioned 500,000-gallon per day limitation removed.
Thus, under proposed §205.2(a), the wording would be amended to read
as follows: "The commission may issue a general permit to authorize the discharge
of waste into or adjacent to water in the state by category if the commission
finds the discharges in the category are storm water or the dischargers in
the category: (1) engage in the same or substantially similar types of operations;
(2) discharge the same types of waste; (3) are subject to the same requirements
regarding effluent limitations or operating conditions; (4) are subject to
the same or similar monitoring requirements; and (5) are more appropriately
regulated under a general permit than under individual permits, on the basis
that both: (A) the general permit can be readily enforced and the executive
director can adequately monitor compliance with the terms of the general permit;
this requirement being satisfied if the provisions of the general permit are
clear and unambiguous and it requires adequate monitoring, record keeping,
and reporting, appropriate to the type of activity authorized; and (B) the
category of discharges covered by the general permit will not include a discharge
of pollutants that will cause significant adverse affects to surface or groundwater
quality."
Section 205.2(b) is proposed to be reformatted for clarity by dividing
existing portions of this subsection into paragraphs (1) and (2), and by deleting
the superfluous sentence "For example, certain dischargers of the same type
of waste may be covered under one statewide general permit." This sentence
is not needed because proposed subsection (b) already states, "The commission
may issue a general permit to authorize the discharge of waste by categories
of dischargers designated under subsection (a) of this section either within
the entire state or...," and paragraph (2) under subsection (a) of the section
states, "discharge the same type of waste." The commission notes that the
descriptions under proposed §205(b)(1) and (2) are included as examples
and not intended to be limiting.
Section 205.2(c) is proposed to be amended to state, "Authorization to
discharge under a general permit does not confer a vested right." This subsection
is reformatted from existing §205.4(d).
Section 205.3, concerning Public Notice, Public Meetings, and Public Comment,
is proposed to be amended to clarify and simplify the rules, as well as to
update references to certain notice requirements. Also, changes are being
proposed to the requirements for newspaper notice, to be consistent with the
revisions made by HB 1283. The requirements under existing §205.3(a)
are proposed to be reformatted into new paragraphs (1)-(2), with a proposed
change to the existing rules with regard to the required newspaper notice
publication requirements for draft general permits with statewide applicability.
This proposed change in the requirements for newspaper notice is consistent
with HB 1283, which states that "For a statewide general permit, the commission
shall designate one or more newspapers of statewide or regional circulation
and shall publish notice of the proposed statewide general permit in each
designated newspaper in addition to the
Texas Register.
" First, the proposed amendments would retain the requirement for
Section 205.3(b) is proposed to be amended under paragraph (2) to replace
the phrase "state and federal agencies" with the term "persons," and paragraph
(3) is proposed to be deleted, as this requirement regarding "persons on a
relevant mailing list" would no longer be needed. Then, in order to account
for the proposed deletion of paragraph (3), current paragraph (4) is proposed
to be renumbered as paragraph (3).
Section 205.3(c) is proposed to be amended by reformatting the current
requirements into paragraphs (1)-(4). In addition, the existing rule language
under §205.3(c) "...except where clearly not applicable" is proposed
to be replaced with the new language under §205.3(c)(1) "include the
applicable information described in §39.11...." Proposed §205.3(c)(2)-(4)
is the reformatted remainder of the requirements of §205.3(c).
Section 205.3(d) is proposed to be amended to change the heading "Public
Meetings." to "Requirements relating to public meetings are as follows:."
Under proposed §205.3(d)(1), the phrase "executive director or commission"
is changed to "agency;" the phrase "either the executive director or commission"
is changed to "the executive director;" and the words "that" and "exists"
are added for clarification in the following phrase "that a significant degree
of public interest in the draft general permit exists;." Proposed §205.3(d)(2)
contains a rewording of the current language "The commission shall give notice
of a public meeting under this subsection by publication..." to the proposed
language "Notice of a public meeting shall be by publication...." In a similar
fashion, proposed §205.3(d)(3) contains a rewording of the current language
"Mailed notice of the public meeting will also be provided to the following:"
to the proposed language "Notice of the public meeting shall be mailed to
the following:." Section 205.3(d)(3) is proposed to be amended under subparagraph
(B) to replace the phrase "state and federal agencies" with the term "persons;"
subparagraph (C) is proposed to be deleted, as this requirement regarding
"persons on a relevant mailing list" would no longer be needed; and subparagraphs
(D) and (E) are proposed to be redesignated as subparagraphs (C) and (D),
respectively, to account for the proposed deletion of subparagraph (C). Under
proposed §205.3(d)(4), the clarifying phrase "the applicable" is proposed
to be added, and the wording is proposed to be changed from the current language
"be in accordance with" to the proposed language "described in" for clarification.
An additional proposed clarification under §205.3(d)(4) is the deletion
of the current language "except where clearly not applicable." Under proposed §205.3(d)(5),
after "The public comment period shall automatically be extended to the close
of any public meeting," the following clarifying phrase is proposed to be
added: "held by the agency on the proposed general permit."
Section 205.3(e) is proposed to be amended for clarification by changing
the first sentence from "If the commission receives public comment during
the comment period relating to issuance of a general permit, the commission
may issue the general permit only after responding in writing to these comments"
to the following: "If the agency receives public comment during the comment
period relating to issuance of a general permit, the executive director shall
respond in writing to these comments, and this response shall be made available
to the public and filed with the chief clerk at least ten days before the
commission considers the approval of general permit." In addition, "commission"
is changed to "agency" in the second sentence of this subsection (e), and
a third sentence is added, as follows: "The commission shall consider all
public comment in making its decision and shall either adopt the executive
director's response to public comment or prepare its own response." Section
205.3(e)(2)-(4) is proposed to be amended by changing each occurrence of the
word "will" to "shall." Also, §205.3(e)(2) is proposed to be amended
by changing the identification of the location where a copy of any issued
general permit and response to comment is available for inspection from the
current rule language "commission's Wastewater Permits Section in its Austin
office" to the proposed rule language "agency's Austin office."
Section 205.3(g) is proposed to be amended to account for the types of
minor revisions to general permits in accordance with §305.62, concerning
Amendment. Thus, the phrase "or minor modification" is added to amend this
subsection. In addition, the reference to §305.62(c)(2) is proposed to
be corrected to §305.62(c).
Section 205.4, concerning Authorizations and Notices of Intent, is proposed
to be amended to implement new requirements of HB 1283 that allow authorization
under a general permit to be obtained without submitting an NOI, to clarify
when the executive director will deny or suspend a discharger's authority
under a general permit, to add an additional circumstance for denying or suspending
authorization due to a history of "egregious conduct" on the part of the discharger,
to clarify the rule by revising language and by reformatting this section.
Section 205.4(a) is proposed to be amended to cover certain requirements
relating to general permits. This subsection is proposed to begin as follows:
"A qualified discharger may obtain authorization to operate under a general
permit by complying with the general permit's conditions for gaining coverage."
Then, under paragraphs (1)-(5), certain requirements, allowances, and limitations
are spelled out. Section 205.4(a)(1) is proposed to read as follows, stemming
from language reformatted from existing §205.4(c), and language implementing
the HB 1283 allowance for certain general permits to authorize a discharger
to discharge without submitting an NOI: "A general permit shall specify either
an applicable deadline for filing the notice of intent (NOI), or that an NOI
is not required prior to commencement of a qualifying discharge." Proposed §205.4(a)(2)
provides the logical clarification that "No new discharge under the authority
of a general permit may commence after a general permit is expired." Proposed §205.4(a)(3)
is language implementing the requirements and allowances under HB 1283, stating
that: "For those general permits requiring an NOI, a discharger may begin
discharging under the general permit after the date or period of time specified
in the general permit unless the executive director or commission before that
time notifies the discharger pursuant to subsections (c) or (e) of this section
that the discharger is not eligible for authorization under the general permit."
Proposed §205.4(a)(4) is language reformatted from existing §205.4(c)
and (d) covering dischargers that are not eligible for authorization under
the general permit, stating that: "The executive director shall provide written
notice to a discharger if the executive director determines that the discharger
is not eligible for authorization under the general permit. The content of
the notice is described in subsections (c) and (d) of this section." Proposed §205.4(a)(5)
is language from existing §205.4(c), with the word "must" changed to
"shall," as follows: "An NOI shall be submitted to the executive director
by certified mail, return receipt requested."
Section 205.4(b) is proposed to be amended to cover certain general permits
requirements relating to individual permittees. This subsection is proposed
to begin as follows: "The following requirements apply to existing individual
permittees:." This subsection essentially rewrites the existing rule language
under current §205.4(b)(1) from the perspective of what the general permit
must require or can allow. The existing rules are written from the perspective
of what a discharger must or can do. For example, the current language under §205.4(b)(1)
states, "A discharger who is covered by an individual permit may obtain substitute
authorization to discharge waste under a general permit if," where the proposed
language states, "The general permit shall specify how a discharger covered
by an individual permit may substitute authorization to discharge waste under
the general permit. At a minimum, the general permit shall provide that coverage
under the general permit shall not commence until:." The reason for this shift
in perspective is that Chapter 205 is not an actual general permit, but rather
includes procedures for adopting a general permit, and what should be included
in general permits. Section 205.4(b)(1) is proposed to be "rounded out" with
the minimum requirements of the general permit needed for individual permit
dischargers to "convert" to general permits, as follows: §205.4(b)(1)(A)
is proposed to specify that the general permit provide that coverage under
the general permit shall not commence until: "the permittee has submitted
an NOI, if one is required by the general permit, as specified by subsection
(f) of this section;" and §205.4(b)(1)(B) is proposed to specify that
the general permit provide that coverage under the general permit shall not
commence until: "The executive director has received the discharger's written
request that the individual permit be canceled."
Proposed §205.4(b)(2) is basically a reformatted existing §205.4(b)(4)
with additional language which "fleshes out" what the general permit shall
require the discharger who is covered by an individual permit to do in order
to obtain authorization to discharge waste from a new outfall. In keeping
with the perspective shift discussed earlier in this preamble, the first sentence
under proposed §205.4(b)(2) changes the existing rule language under §205.4(b)(4)
from "A discharger who is covered by an individual permit may obtain authorization
to discharge waste from a new outfall under a general permit if the discharger
submits a written NOI as specified in subsection (f) of this section" to the
following: "The general permit may allow a discharger who is covered by an
individual permit to obtain authorization to discharge waste from a new outfall
under a general permit." The last portion under proposed §205.4(b)(2)
reads as follows: "The general permit shall describe how to obtain authorization
to discharge waste from a new outfall. Authorization under the general permit
shall not commence until the discharger:." Then, the wording from the aforementioned
existing rules concerning submittal of a written NOI is reformatted under
proposed §205.4(b)(2)(A), as follows: "submits an NOI, if one is required
by the general permit, as specified in subsection (f) of this section." Additional
language which "fleshes out" these requirements is proposed under subparagraph
(B), as follows: "requests and receives written approval from the executive
director of a minor modification to their individual permit exempting the
new outfall from coverage under the individual permit."
Proposed §205.4(b)(3) is a reformatted and more complete version of
existing §205.4(b)(2). The existing rule wording of "The individual permit
will be automatically canceled when authorization under the general permit
becomes effective" is proposed to be changed to "Except as provided under
subsection (b)(2) of this section, the commission shall cancel an individual
permit if the executive director or commission does not deny the NOI or authorization
under subsection (c) or (e) of this section."
Section 205.4(c) is proposed to be amended to spell out the requirements
that apply to denial of an authorization or NOI, by reformatting and, to a
certain extent, "fleshing out" requirements from portions of the existing
rules, notably §205.4(d)-(f). Proposed §205.4(c)(1) states: "The
executive director shall provide written notice to a discharger if the executive
director denies the discharger's NOI or authorization to discharge under a
general permit, including, at a minimum, a brief statement of the basis for
this decision." Proposed §205.4(c)(2) lists the reasons for which the
executive director shall deny authorization to discharge under an existing
general permit. Subparagraphs (A)-(F) of this proposed paragraph are reformatted
from existing §205.4(e)(1)-(5) and (8), except that subparagraphs (B),
(D), and (E) are clarified. Subparagraph (B) is proposed to read as follows:
"the discharge is required to be authorized under the Texas Pollutant Discharge
Elimination System (TPDES), and discharging under the general permit would
result in backsliding prohibited under 40 CFR §122.144(1), as amended
and adopted under §305.531(3) of this title (relating to Establishing
and Calculating Additional Conditions and Limitations for TPDES Permits)."
Subparagraph (D) is proposed to read as follows: "the discharge is located
where it causes or could cause an adverse impact upon a critical area, as
defined in 31 TAC §501.3 (relating to Definitions and Abbreviations),
and there is a suitable location that is available and capable of being used
in light of cost, technology, and logistics." Subparagraph (E) is proposed
to include the change from "commission" to "executive director" under clause
(i), and the change from "commission" to "agency" under clause (ii). Proposed §205.4(c)(3)
includes reasons for which the executive director may deny authorization to
discharge under an existing general permit. Subparagraphs (A)-(D) of this
proposed paragraph are reformatted from existing §205.4(e)(6) and (7)
and §205.4(f)(1) and (7), with the first and third occurrences of the
term "commission" under subparagraph (D) changed to "executive director."
Proposed §205.4(c)(4), which is a reformatted version of existing §205.4(b)(3),
requires dischargers to apply for renewal of the individual permit, if authorization
is denied under this subsection.
Section 205.4(d) is proposed to be amended to spell out the requirements
that apply to suspensions of authorizations or NOIs of intent, by reformatting
and, to a certain extent, "fleshing out" requirements from portions of the
existing rules, notably §205.4(d)-(f). Proposed §205.4(d)(1) spells
out requirements for the general permit, as follows: "The general permit shall
describe the procedures for suspension of authorization and NOIs under the
general permit. The general permit shall require the executive director to
provide written notice to a discharger that the executive director intends
to suspend a discharger's authority to discharge under a general permit, including:."
The statements required in the written notice are spelled out in proposed
subparagraphs (A)-(D), which are reformatted from existing §205.4(d).
Proposed §205.4(d)(2) requires that if a discharger's authorization under
a general permit is suspended, the discharge shall cease immediately. Proposed §205.4(d)(3)
is reformatted from existing §205.4(f), and allows the executive director
to require the person whose authorization to discharge is suspended to apply
for and obtain an individual permit. Proposed §205.4(d)(4) lists the
reasons for which the executive director, after written notice to the discharger,
shall suspend authorization to discharge under an existing general permit.
Subparagraphs (A)-(E) of this proposed paragraph are reformatted from existing §§205.4(d),
205.4(e)(5), 205.4(f)(2), (5), and (10). Subparagraph (C) is proposed to include
the change from "commission" to "executive director" under clause (i), and
the change from "commission" to "agency" under clause (ii). Proposed §205.4(d)(5)
includes reasons for which the executive director, after written notice to
the discharger, may suspend authorization to discharge under an existing general
permit, with the first and third occurrences of the term "commission" under
subparagraph (E) changed to "executive director." Subparagraphs (A)-(E) of
this proposed paragraph are reformatted from existing §205.4(f)(1), (4),
and (7)-(9). Proposed §205.4(d)(6) provides the clarification that the
executive director's decisions on NOIs under this chapter are subject to §50.139
of this title (relating to Motion to Overturn Executive Director's Decision).
Section 205.4(e) is proposed to implement TWC, §26.040(h), which requires
the commission to deny or revoke an NOI if, after a hearing, it finds that
the discharger has a history of violations that constitute a recurring pattern
of egregious conduct that demonstrates a consistent disregard for the regulatory
process. Under the proposed rule, the history of violations that could be
considered by the commission would include all violations of Texas environmental
laws administered by TNRCC that have been documented by the executive director
during the preceding five years. These include NOVs, NOEs, and all administrative
and judicial orders entered with regard to TNRCC or United States Environmental
Protection Agency permits and rules. Agreed orders entered into by the commission
which contain the limitation that they are not intended to become part of
the respondent's compliance history will be considered only if the executive
director has documented failure to comply with the terms of the order. The
commission's experience indicates that if an applicant has a history that
reflects a disregard for the regulatory process, that person is more likely
to present future compliance problems. In the past, the commission has included
special conditions in permits, designed to address past compliance problems
at the permitted facility. This proposal would further that policy by requiring
that an operator or owner with a very poor compliance history seek and obtain
an individually tailored permit.
Such a pattern of conduct exhibited at the applicant facility and in regard
to wastewater discharge statutes and rules would clearly be the most relevant
portion of a discharger's compliance history and given the greatest weight
in the commission's deliberations. Violations by the same applicant in other
media and at other facilities may also be relevant, however. To the extent
that the facts surrounding them indicate a pattern of violation, or a management
structure or other uniform factors exist, they may indicate the same attitude
or practices are likely to occur at the facility seeking the NOI. Consequently,
the proposal permits the commission to consider these violations as well,
according to them the weight appropriate to their relative degree of similarity
or remoteness to the facility or the activity that is the subject of the general
permit.
Proposed §205.4(e) states, "The commission, after hearing, shall deny
or suspend a discharger's authority to discharge under a general permit if
the commission determines that the discharger operates any facility for which
the discharger's compliance history contains violations constituting a recurring
pattern of egregious conduct that demonstrates a consistent disregard for
the regulatory process, including a failure to make a timely and substantial
attempt to correct the violations. A hearing under this subsection is not
subject to Texas Government Code, Chapter 2001." The commission is proposing
to define "compliance history," as discussed earlier in this preamble.
Section 205.4(f) is proposed to be amended to add the opening phrase "The
general permit shall describe," consistent with the aforementioned approach
of changing the perspective of the rules toward what the general permit must
require or can allow; and to add the phrase "if one is required by" after
"NOI" in the first sentence. Section 205.4(f) is also proposed to be amended
to add to the first part of the second sentence the phrase "At a minimum,
the NOI."
Section 205.4(g) is proposed to be amended to add the opening phrase "The
general permit may require a," and to delete "shall" from this sentence, which
changes the rules from prescriptive to permissive, with regard to application
fees for general permits. Also in the first sentence, the term "commission"
is proposed to be changed to "agency." Section 205.4(g) is also proposed to
be amended to change the second sentence to read as follows: "The amount of
the fee may be set in accordance with §305.53 of this title (relating
to Application Fee) or may be specified in each general permit and NOI form."
The third sentence in this subsection is proposed to be amended to correct
the rule reference from "subsection (e)" to "subsection (c) or (e)," and to
change "the application fee" to "any application fee."
Section 205.4(h) is proposed to be amended to add the opening phrase "The
general permit shall require a," and to replace the phrase "new NOI" with
the phrase "notice of change" to more appropriately describe the purpose of
the notice. Also in the first sentence, the term "commission" is proposed
to be changed to "agency." The second sentence in this subsection is proposed
to be amended to read as follows: "In cases where the general permit requires
that an NOI be submitted, the general permit shall require that when the ownership
of the facility changes or is transferred, a notice of termination be submitted
by the present owner, and a new NOI be submitted by the new owner, not later
than ten days prior to the change in ownership." The commission notes that
the proposed new terms "notice of change" and "notice of termination" are
defined under proposed §205.1, as discussed earlier in this preamble.
Section 205.4(i) is proposed to be amended to add "or commission" to the
second sentence, to replace "an NOI" with "authorization," add "county or,"
and change "will" to "shall," so that this sentence is proposed to read as
follows: "If the executive director or commission denies authorization for
a proposed discharge in the county or municipality, the executive director
shall notify the county judge or mayor."
Section 205.5, concerning Permit Duration, Amendment, and Renewal, is proposed
to be amended to allow the commission to continue to authorize dischargers
under an expired general permit in cases where the commission has proposed
to renew the general permit before the expiration date. Thus, §205.5(b)
is proposed to be amended to add the following: "If before its expiration,
the commission proposes to renew a general permit, the general permit shall
remain in effect after the expiration date for those existing discharges covered
by the general permit. The general permit shall remain in effect for these
dischargers until the date on which the commission takes final action on the
proposed permit renewal. No new notices of intent (NOIs) will be accepted
or new authorizations honored for authorization under the general permit after
the expiration date." Section 205.5(c) is proposed to be amended to add the
following clarifying phrase to replace the term "the facility:" to "all facilities,
including those covered under the expired general permit," and to require
submittal of an NOI, if one is required by the general permit.
Section 205.5(d) is proposed to be amended to add more details to the requirements
concerning submittal of applications for individual permits when a general
permit is about to expire. Thus, this subsection is proposed to read as follows:
"If the commission has not proposed to renew a general permit at least 90
days before its expiration date, dischargers authorized under the general
permit shall submit an application for an individual permit before the general
permit's expiration. If an application for an individual permit is submitted
before the general permit's expiration, authorization under the expired general
permit remains in effect until the issuance or denial of an individual permit."
Section 205.5(f) is proposed to be amended to clarify the requirements
concerning consistency of general permits with the Texas Coastal Management
Plan, and is proposed to read as follows: "Before issuing a general permit,
the commission shall review the general permit for consistency with the Texas
Coastal Management Plan (CMP). The commission must find that the general permit
is consistent with the applicable CMP goals and policies and that it will
not adversely affect any applicable coastal natural resource areas as identified
in the CMP before the commission may issue the general permit."
Section 205.6, concerning Annual Fee Assessments, is proposed to be amended
to correct a reference that has changed since the rules were adopted, and
to clarify that the commission has the authority to charge an annual watershed
monitoring and assessment fee, but is not necessarily required to do so. Thus,
this section is proposed to read as follows: "A person authorized by a general
permit shall pay an annual waste treatment inspection fee under Texas Water
Code (TWC), §26.0291, consistent with §§305.501 - 305.507 of
this title (relating to the Waste Treatment Inspection Fee Program); and may
be subject to an annual watershed monitoring and assessment fee under TWC, §26.0135(h),
consistent with §220.21 of this title (relating to Water Quality Assessment
Fees)."
New proposed §205.7, concerning Additional Characteristics and Conditions
for General Permits, is taken from §321.141, in anticipation of the future
repeal of Chapter 321. Section 205.7 is proposed to read as follows: "40 Code
of Federal Regulations (CFR) §122.28, as amended through April 2, 1992,
at 57 FedReg 11413, is adopted by reference, except 40 CFR §122.28(b)(3)(ii)
and (c), and except as follows: where 40 CFR §122.28 refers to an 'NPDES
permit,' the references are more properly made, for state law purposes, to
a 'TPDES permit,' as applicable; and where 40 CFR §122.28(b)(3)(iii)
refers to 40 CFR §122.21, the reference is more properly made, for state
law purposes, to applicable sections of this chapter, Chapter 281 of this
title (relating to Application Processing), and Chapter 305 of this title
(relating to Consolidated Permits)." The aforementioned 1992
Federal Register
citation is proposed in order to include a specific
promulgation date, and is the most recent date for any amendment to 40 CFR §122.28,
up to the date of TPDES program authorization.
FISCAL NOTE
Jeffrey Horvath, with Strategic Planning and Appropriations, has determined
for the first five- year period the proposed amendments are in effect, there
will be no adverse fiscal implications for TNRCC or for units of local government
as a result of administration and enforcement of the proposed rules. The proposed
rules implement certain provision of HB 1283, 76th Legislature, 1999, by removing
the limitation that general permits cannot authorize discharges of more than
500,000 gallons in any 24-hour period and by providing that the commission
may issue a general permit for storm water discharges. The proposed rules
would implement HB 1283 which amended TWC, §26.040, and clarify the requirements
and procedures for issuing general wastewater permits and obtaining authorization
for storm water discharge under a general permit.
Under the bill, the proposed rules would also add a requirement that the
commission deny or suspend a discharger's authority under a general permit
if the commission determines that the discharger operates any facility for
which the discharger's compliance history contains violations constituting
a recurring pattern of egregious conduct; and clarify the language and organizational
structure of the rules.
HB 1283 allows TNRCC to more effectively implement the TPDES by not requiring
the agency to individually permit wastewater discharges. Removing the 500,000
gallon per 24-hour period cap allows the agency to cover larger numbers of
wastewater dischargers. Currently cities and industries must apply for individual
permits for wastewater discharge. Under a general permit with the 500,000
gallon per 24-hour limit for discharges removed, the process for permit holders
for permit applications are streamlined and costs may be reduced. Legal and
consultant costs are also assumed to be reduced. The cost savings cannot be
quantified due to variability in the types of individual permits now in effect.
The proposed rules do not specifically implement the storm water program
but do allow the commission to issue a general permit for storm water discharges.
HB 1283 provided TNRCC with the authority to issue general permits to authorize
discharges of wastewater of any amount in any 24-hour period and to specifically
allow the category of storm water under general permits. The Legislature appropriated
$608,669 from wastewater treatment inspection fees for fiscal year 2000 and
$1,647,575 for fiscal year 2001 from the wastewater treatment inspection fee
account to implement the storm water permitting program which is not addressed
by these rules relating to storm water discharges. The permits are anticipated
to be proposed at later dates, as TNRCC assumes responsibility for various
aspects of the storm water program. The storm water program regulates polluted
rain water run-off from cities, certain classes of industry, and construction
sites. This program was delegated to the agency as a NPDES program to be implemented
in stages and as existing federal permits expire.
PUBLIC BENEFIT
Mr. Horvath has also determined for each of the first five years the proposed
rules are in effect, the public benefit anticipated as a result of the administration
of and compliance with the rules will be that the process for wastewater permit
holders for permit applications will be streamlined and costs may be reduced.
Legal and consultant costs are also anticipated to be reduced. The cost savings
cannot be quantified due to variability in the types of individual permits
now in effect. In addition, public health and safety will continue to be protected
as there will be no change in the degree of regulation for affected entities.
SMALL AND MICRO-BUSINESS IMPACT ANALYSES
No adverse economic effects are anticipated to small businesses and micro-businesses
as a result of implementing the proposed amendments. The proposed rules implement
HB 1283, by removing the limitation that general permits cannot authorize
discharges of more than 500,000 gallons in any 24-hour period and by providing
that the commission may issue a general permit for storm water discharges.
As a result of the administration of and compliance with the rules by small
and micro-businesses, that may anticipate that the process for obtaining wastewater
permits will be streamlined and costs may be reduced. Legal and consultant
costs are also anticipated to be reduced. The cost savings cannot be quantified
due to variability in the types of individual permits now in effect.
DRAFT REGULATORY IMPACT ASSESSMENT
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of the Texas Government Code, §2001.0225, and has
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 act. The proposal would not adversely effect in a material way on the
economy, a section of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state for
two reasons. First, the proposed rules implement what is already allowed under
TWC, §26.040. The proposed rules do not go beyond that which is already
statutorily allowed. Second, the proposed rules will result in overall economic
savings, while protecting of the public health and safety and environment.
There is economic savings because many of the entities that would otherwise
be required to obtain an individual permit will be able to obtain coverage
under one standard permit, a general permit. This improves efficiency in the
permitting process which results in overall economic savings. The general
permits issued under these rules will undergo the same permitting scrutiny
of an individual permit, thus ensuring the protection of public health and
safety and the environment. Furthermore, the proposed rulemaking does not
meet any of the four applicability requirements listed in §2001.0225(a).
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these proposed
rules pursuant to Texas Government Code, §2007.043. The following is
a summary of that assessment. The specific purpose of these proposed rules
is to implement HB 1283, 76th Legislature, 1999, and clarify the requirements
and procedures for issuing a general permit and obtaining authorization for
discharge under a general permit. The proposed rules would substantially advance
this stated purpose by amending Chapter 205 to remove the limitation that
general permits cannot authorize discharges of more than 500,000 gallons in
any 24-hour period; by providing that the commission may issue a general permit
for storm water discharges without having to make the findings required by
TWC, §26.040(a)(1)-(5) for other categories of discharges; add a requirement
that the commission deny or suspend a discharger's authority under a general
permit if the commission determines that the discharger operates any facility
for which the discharger's compliance history contains violations constituting
a recurring pattern of egregious conduct; and clarify the language and organizational
structure of the rules. Promulgation and enforcement of these proposed rules
would not burden private real property which is the subject of the rules because
the proposal would remove a restriction and clarify other portions of the
rules. The subject proposed regulations do not affect a landowner's rights
in private real property because this rulemaking does not restrict or limit
the owner's right to property that would otherwise exist in the absence of
the regulations. In other words, because these rules broaden the applicability
of general permits, which provide a less burdensome avenue for gaining authorization
for discharges than do alternative permitting schemes, and because these rules
clarify the requirements and procedures for issuing a general permit and obtaining
authorization for discharge under a general permit, they do not restrict the
owner's right to property. Therefore, these proposed rules will not constitute
a takings under the Texas Government Code, §2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The executive director has reviewed the proposed rulemaking and found that
the proposal is a rulemaking identified in Coastal Coordination Act Implementation
Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas
Coastal Management Program (CMP), or will affect an action or authorization
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11.
The commission has prepared a consistency determination for the proposed
rules pursuant to 31 TAC §505.22, and has found the proposed rulemaking
consistent with the applicable CMP goals and policies. The following is a
summary of that determination. CMP goals applicable to the proposed rules
are the protection, preservation, restoration and enhancement of the diversity,
quality, quantity, functions, and values of coastal natural resource areas.
CMP policies applicable to the proposed rules include the requirement that
discharges of municipal and industrial wastewater in the coastal zone shall
comply with water-quality-based effluent limits. Promulgation and enforcement
of these rules is consistent with the applicable CMP goals and policies because
the proposed rules will result in more efficient and cost-effective use of
public resources regulating wastewater facilities, while maintaining protection
of the quality of the surface water resources of the state. Dischargers would
be subject to requirements in the permit. In addition, the rules specifically
require the executive director to deny authorization under an existing general
permit if the discharge is located where it poses or could pose an adverse
impact upon a critical area, and it is practicable to locate the discharge
in a more suitable location. The commission invites public comment on the
consistency of the proposed rules.
PUBLIC HEARING
A public hearing on this proposal will be held in Austin on June 29, 2000,
at 10:00 a.m. in Building F, Room 3202A at the Texas Natural Resource Conservation
Commission complex, located at 12100 Park 35 Circle. Individuals may present
oral statements when called upon in the order of registration. Open discussion
will not occur during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes before the hearing and will answer
questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
1999-034-205-WT. Comments must be received by 5:00 p.m., July 3, 2000. For
further information, please contact Steve Ligon, Wastewater Permitting Section,
(512) 239-4527.
STATUTORY AUTHORITY
The proposed amendments are proposed under and implement TWC, §26.040,
which provides the commission with the authority to regulate certain waste
discharges by general permit, and TWC, §26.040(m), which authorizes the
commission to adopt rules as necessary to implement TWC, §26.040.
These amendments are also proposed under the TWC, §5.102, which provides
the commission with general powers to carry out duties under the TWC, §§5.103,
5.105, and 5.120, which provide the commission with the authority to adopt
any rules necessary to carry out the powers and duties under the provisions
of the TWC and other laws of this state and to establish and approve all general
policies of the commission.
§205.1. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
Compliance history -- The
record of all notices from the commission, including notices of violation
from the executive director; and of all orders of the commission, of any other
agency or political subdivision of the State of Texas and of the United States
Environmental Protection Agency (USEPA) pertaining to an applicant's adherence
to environmental laws and rules of the State of Texas or the United States;
with the terms of any permit, compliance agreement or order issued by the
commission or the USEPA; and with any final judicial decision or settlement
addressing the applicant's adherence to such environmental laws and rules.
The history shall be for the five-year period before the date on which the
NOI is filed or, if an NOI is not required, the five-year period before the
permittee begins operating under the general permit. It shall not include
any order that is precluded by its terms or by law from becoming part of the
applicant's compliance history.
(2)
[
(3)
[
(4)
Notice of change or NOC -- A written submittal
to the executive director from a discharger authorized under a general permit
providing information on changes to information previously provided to the
agency, or any changes with respect to the nature or operations of the facility,
or the characteristics of the discharge.
(5)
[
(6)
Notice of termination
or NOT -- A written submittal to the executive director from a discharger
authorized under a general permit requesting termination of coverage.
[
Same or similar monitoring
requirements -- Requirements for periodic testing or sampling applied to all
dischargers of a category covered by a general permit to determine compliance
with effluent limitations in general permits which will be applied with the
same or similar frequency, sample type, or reporting requirements. This may
include conditions which are applied in accordance with a distinct formula
in the general permit, such as a sampling frequency based upon the quantity
or rate of discharge.]
[
Same or substantially
similar types of operations -- An operation engaged in wastewater management
activities, or wastewater management activities as defined in a general permit.
Examples of substantially similar types of operations include manufacturing
processes relating to a specific industrial category or standard industrial
classification, a specific type of agricultural production activity, publicly
owned treatment works, or storm water management and control activities by
municipalities.]
[
Same requirements regarding
operating conditions -- Requirements applied to all dischargers in a category
covered by a general permit including, but not limited to, requirements for
maintenance, monitoring, reporting, best management practices, facility management,
the integrity of analytical testing, and record keeping.]
[
Same types of waste
-- A category of waste containing the same or similar type constituents that
can be safely and appropriately controlled using a similar treatment technology,
or that can be safely and appropriately controlled through the same requirements
regarding effluent limitations Examples of such waste types include domestic
wastewater, contact storm water from concrete batch operations, or filter
backwash from water treatment.]
(7)
[
§205.2. Purpose and Applicability.
(a)
The commission may issue a general permit to authorize
the discharge of waste into or adjacent to
water
[
(1) - (2)
(No change.)
(3)
are subject to the same requirements regarding effluent
limitations or operating conditions; [
(4)
are subject to the same or similar monitoring requirements;
and
(5)
are more appropriately
regulated under a general permit than under individual permits, on the basis
that both:
(A)
the general permit can be readily enforced
and the executive director can adequately monitor compliance with the terms
of the general permit; this requirement being satisfied if the provisions
of the general permit are clear and unambiguous and it requires adequate monitoring,
record keeping, and reporting, appropriate to the type of activity authorized;
and
(B)
the category of discharges covered by the general
permit will not include a discharge of pollutants that will cause significant
adverse affects to surface or groundwater quality.
(b)
The commission may issue a general permit to authorize
the discharge of waste by categories of dischargers designated
under
[
(1)
General permits granted for
discrete geographical areas may be based upon, but not limited to, factors
such as related water quality standards, climatological conditions, and watershed
specific standards in accordance with Chapter 311 of this title (relating
to Watershed Protection).
(2)
Discharges to be regulated
with effluent limitations specific to a particular water body may be covered
under a general permit limited to a particular watershed or geographical area.
(c)
Authorization to discharge under a general permit
does not confer a vested right.
[
[
the general permit can be
readily enforced and that the commission can adequately monitor compliance
with the terms of the general permit. This requirement is satisfied if the
provisions of the general permit are clear and unambiguous and it requires
adequate monitoring, record keeping, and reporting, appropriate to the type
of activity authorized; and]
[
the category of discharges
covered by the general permit will not include a discharge either of pollutants
that will cause significant adverse effects to surface or ground water quality
or of more than 500,000 gallons into surface water during any 24-hour period.]
§205.3. Public Notice, Public Meetings, and Public Comment.
(a)
Notice shall be published as follows.
[
(1)
If the draft general permit
will not have statewide applicability, the agency shall publish notice of
each draft general permit in the
Texas Register
and in a daily or weekly newspaper of general circulation in the area affected
by the activity that is the subject of the proposed general permit.
(2)
For draft general permits
with statewide applicability, notice shall be published in the
Texas Register
and in at least one newspaper of statewide or regional
circulation.
(3)
The public notice shall
be published not later than the 30th day before the commission considers the
approval of a general permit.
(b)
For
Texas Pollutant Discharge Elimination System
[
(1)
(No change.)
(2)
if applicable,
persons
[
[(3)
persons on a relevant mailing list
kept under §39.7 of this title (relating to Mailing Lists); and]
(3)
[
(c)
The contents of a public notice of a draft general permit
shall
:
[
(1)
include the applicable information
described in §39.11 of this title (relating to Text of Public Notice);
(2)
include an invitation
for written comments by the public regarding the draft general permit;
(3)
specify a comment period
of at least 30 days; and
(4)
include either a map
or description of the permit area.
(d)
Requirements relating to public meetings are as follows.
[
(1)
The
agency
[
(2)
Notice of
[
(3)
Notice
[
(A)
(No change.)
(B)
if applicable,
persons
[
[(C)
persons on a relevant mailing list kept
under §39.7 of this title (relating to Mailing Lists)]
(C)
[
(D)
[
(4)
The contents of a public notice of a public
meeting shall
include the applicable information described in
[
(5)
The public comment period shall automatically be
extended to the close of any public meeting
held by the agency on the
proposed general permit
.
(e)
If the
agency
[
(1)
The commission shall issue its written response to comments
on the general permit at the same time the commission issues or denies the
general permit.
(2)
A copy of any issued general permit and response
to comments
shall
[
(3)
A notice of the commission's action on the proposed
general permit and a copy of its response to comments
shall
[
(4)
A notice of the commission's action on the proposed
general permit and the text of its response to comments
shall
[
(f)
Except as specified in subsection (g) of this section,
the requirements of subsections (a)-(e) of this section apply to processing
of a new general permit,
an
[
(g)
A general permit may be proposed for minor amendment
or minor modification,
as described in
§395.62(c)
[
§205.4. Authorizations and Notices of Intent.
(a)
A qualified discharger may obtain authorization to
operate under a general permit by complying with the general permit's conditions
for gaining coverage.
[
(1)
A general permit shall specify
either an applicable deadline for filing the notice of intent (NOI), or that
an NOI is not required prior to commencement of a qualifying discharge.
(2)
No new discharge under
the authority of a general permit may commence after a general permit is expired.
(3)
For those general permits
requiring an NOI, a discharger may begin discharging under the general permit
after the date or period of time specified in the general permit unless the
executive director or commission before that time notifies the discharger
pursuant to subsections (c) or (e) of this section that the discharger is
not eligible for authorization under the general permit.
(4)
The executive director
shall provide written notice to a discharger if the executive director determines
that the discharger is not eligible for authorization under the general permit.
The content of the notice is described in subsections (c) and (d) of this
section.
(5)
An NOI shall be submitted
to the executive director by certified mail, return receipt requested.
(b)
The following requirements apply to existing individual
permittees
[
(1)
The general permit shall specify how a discharger
covered by an individual permit may substitute authorization to discharge
waste under the general permit. At a minimum, the general permit shall provide
that coverage under the general permit shall not commence until:
[
(A)
the permittee has submitted
an NOI, if one is required by the general permit, as specified by subsection
(f) of this section; and
(B)
the executive director has
received the discharger's written request that the individual permit be canceled.
(2)
The general permit may allow a discharger
who is covered by an individual permit to obtain authorization to discharge
waste from a new outfall under a general permit . Agency action on a new discharge
does not affect the status of the discharger's existing individual permit.
The general permit shall describe how to obtain authorization to discharge
waste from a new outfall. Authorization under the general permit shall not
commence until the discharger:
[
(A)
submits an NOI, if one is
required by the general permit, as specified in subsection (f) of this section;
and
(B)
requests and receives written
approval from the executive director of a minor modification to their individual
permit exempting the new outfall from coverage under the individual permit.
(3)
Except as provided under subsection (b)(2)
of this section, the commission shall cancel an individual permit if the executive
director or commission does not deny the NOI or authorization under subsection
(c) or (e) of this section
[
[(4)
A discharger who is covered by
an individual permit may obtain authorization to discharge waste from a new
outfall under a general permit if the discharger submits a written NOI as
specified in subsection (f) of this section. Agency action on a new discharge
does not affect the status of the discharger's existing individual permit.]
(c)
The following requirements apply to denial of an
authorization or notice of intent
[
(1)
The executive director shall
provide written notice to a discharger if the executive director denies the
discharger's NOI or authorization to discharge under a general permit, including,
at a minimum, a brief statement of the basis for this decision.
(2)
The executive director
shall deny authorization to discharge under an existing general permit for
the following reasons:
(A)
the quantity of discharge, the type of waste,
or the type of operation does not comply with the general permit;
(B)
the discharge is required to be authorized
under the Texas Pollutant Discharge Elimination System (TPDES), and discharging
under the general permit would result in backsliding prohibited under 40 Code
of Federal Regulations §122.44(l), as amended and adopted under §305.531(3)
of this title (relating to Establishing and Calculating Additional Conditions
and Limitations for TPDES Permits);
(C)
the discharge is a significant contributor
of pollutants impairing the quality of surface or groundwater in the state.
In making this determination, the executive director shall consider the following
factors:
(i)
the location of the discharge;
(ii)
the size of the discharge;
(iii)
the quantity and nature of pollutants discharged;
(iv)
whether the discharge would impair existing
or potential uses of ground water, inconsistent with the policy specified
in the Texas Water Code (TWC), §26.401; and
(v)
other factors relating to the protection of
water quality standards;
(D)
the discharge is located where it causes or
could cause an adverse impact upon a critical area, as defined in 31 TAC §501.3
(relating to Definitions and Abbreviations), and there is a suitable location
that is available and capable of being used in light of cost, technology,
and logistics;
(E)
the discharger or facility:
(i)
has failed to pay any portion of a delinquent
fee or charge assessed by the executive director;
(ii)
is the subject of an unresolved agency enforcement
action in which the executive director has issued written notice that enforcement
has been initiated;
(iii)
is not in compliance with all requirements,
conditions, and time frames specified in an unexpired commission final enforcement
order relating to the activity regulated by the general permit; or
(iv)
is subject to an unexpired enforcement order
that requires the facility to comply with operating conditions different from
or additional to the requirements of the general permit;
(F)
the discharge would be inconsistent with the
state water quality management plan (WQMP).
(3)
The executive director
may deny authorization to discharge under an existing general permit for reasons
including, but not limited to, the following:
(A)
a change has occurred in the availability of
demonstrated technology or practices for the prevention, control, or abatement
of pollutants applicable to the discharge necessary to be implemented to meet
applicable federal or state standards;
(B)
specific effluent limitation guidelines are
promulgated for a discharge covered by the general TPDES permit, but the general
permit has not yet been amended to incorporate the new effluent limitation
guidelines;
(C)
the owner and/or the operator of the facility
has not filed an NOI in accordance with §305.43 of this title (relating
to Who Applies);
(D)
the discharger has been determined by the executive
director to have been out of compliance with any rule, order, or permit of
the commission, including non-payment of fees assessed by the executive director.
(4)
If authorization
to discharge is denied under this subsection, the executive director may require
the person whose authorization is denied to apply for and obtain an individual
permit. If the discharger is seeking to replace its individual permit with
general permit coverage, but the discharger's general permit authorization
is denied, the discharger shall apply for renewal of the individual permit
prior to the expiration date of its individual permit to maintain authorization
to discharge, in accordance with §305.63 of this title (relating to Renewal).
(d)
The following requirements apply to suspensions of
authorizations and NOIs
[
(1)
The general permit shall describe
the procedures for suspension of authorization and NOIs under a general permit.
The general permit shall require the executive director to provide written
notice to a discharger that the executive director intends to suspend a discharger's
authority to discharge under a general permit, including:
(A)
a brief statement of the basis for this decision
under this subsection;
(B)
a statement of whether the discharger shall
immediately cease the discharge;
(C)
a statement setting the deadline for filing
the application for an individual permit; and
(D)
a statement that the person's discharge authorization
under the general permit shall be suspended on the effective date of the commission's
action on the individual permit application unless the commission expressly
provides otherwise;
(2)
If a discharger's
authorization under a general permit is suspended, the discharger shall immediately
cease the discharge.
(3)
The executive director
may require the person whose authorization to discharge is suspended to apply
for and obtain an individual permit.
(4)
After providing written
notice to the discharger, the executive director shall suspend authorization
to discharge under an existing general permit for the following reasons:
(A)
the quantity of discharge, the type of waste,
or the type of operation does not comply with the general permit;
(B)
the discharge is a significant contributor
of pollutants impairing the quality of surface or groundwater in the state.
In making this determination, the executive director shall consider the following
factors:
(i)
the location of the discharge;
(ii)
the size of the discharge;
(iii)
the quantity and nature of pollutants discharged;
and
(iv)
whether the discharge would impair existing
or potential uses of groundwater, inconsistent with the policy specified in
the TWC, §26.401;
(v)
other factors relating to the protection of
water quality standards;
(C)
the discharger or facility:
(i)
has failed to pay any portion of a delinquent
fee or charge assessed by the executive director;
(ii)
is the subject of an unresolved agency enforcement
action in which the executive director has issued written notice that enforcement
has been initiated;
(iii)
is not in compliance with all requirements,
conditions, and timeframes specified in an unexpired commission final enforcement
order relating to the activity regulated by the general permit, or
(iv)
is subject to an unexpired enforcement order
that requires the facility to comply with operating conditions different from
or additional to the requirements of the general permit;
(D)
the discharge is inconsistent with the state
WQMP;
(E)
an application is not received by the deadline
specified by rule or in the general permit.
(5)
After providing
written notice to the discharger, the executive director may suspend authorization
to discharge under an existing general permit for reasons including, but not
limited to, the following:
(A)
a change has occurred in the availability of
demonstrated technology or practices for the prevention, control, or abatement
of pollutants applicable to the discharge necessary to be implemented to meet
applicable federal or state standards;
(B)
specific effluent limitation guidelines are
promulgated for a discharge covered by the general TPDES permit, but the general
permit has not yet been amended to incorporate the new effluent limitation
guidelines;
(C)
the owner and/or the operator of the facility
has not filed an NOI in accordance with §305.43 of this title;
(D)
circumstances have changed since the time of
the NOI so that the discharge is no longer appropriately controlled to meet
applicable water quality standards under the general permit, or either a temporary
or permanent reduction, or elimination of the authorized discharge is necessary;
(E)
the discharger has been determined by the executive
director to have been out of compliance with any rule, order, or permit of
the commission, including non-payment of fees assessed by the executive director.
(6)
The executive director's
decisions on NOIs under this chapter are subject to §50.139 of this title
(relating to Motion to Overturn Executive Director's Decision).
(e)
The commission, after hearing, shall deny or suspend
a discharger's authority to discharge under a general permit if the commission
determines that the discharger operates any facility for which the discharger's
compliance history contains violations constituting a recurring pattern of
egregious conduct that demonstrates a consistent disregard for the regulatory
process, including a failure to make a timely and substantial attempt to correct
the violations. A hearing under this subsection is not subject to Texas Government
Code, Chapter 2001.
[
[
The quantity of discharge,
the type of waste, or the type of operation does not comply with the general
permit;]
[
In the case of determining
eligibility to discharge under the Texas Pollutant Discharge Elimination System
(TPDES), a determination that backsliding under 40 CFR §122.44(l) would
occur if the general permit replaced the individual permit;]
[
The discharge is a significant
contributor of pollutants impairing the quality of surface or ground water
in the state. In making this determination, the executive director shall consider
the following factors:]
[
The location of the discharge;]
[
The size of the discharge;]
[
The quantity and nature of pollutants discharged;
and]
[
Whether the discharge would impair existing
or potential uses of ground water, inconsistent with the policy specified
in §26.401 of the Texas Water Code;]
[
Other factors relating to the protection of
water quality standards;]
[
The discharge is
located where it poses or could pose an adverse impact upon a critical area,
as defined in 31 TAC §501.3 (relating to Definitions and Abbreviations),
and it is practicable to locate the discharge in a more suitable location.
An alternative is practicable if it is available and capable of being done
in light of cost, technology, and logistics;]
[
The discharger or facility:]
[
has failed to pay any portion of a delinquent
fee or charge assessed by the commission;]
[
is the subject of an unresolved TNRCC enforcement
action in which the executive director has issued written notice that enforcement
has been initiated;]
[
is not in compliance with all requirements,
conditions, and timeframes specified in an unexpired TNRCC final enforcement
order relating to the activity regulated by the general permit, or]
[
is subject to an unexpired enforcement order
that requires the facility to comply with operating conditions different from
or additional to the requirements of the general permit;]
[
A change has occurred
in the availability of demonstrated technology or practices for the control
or abatement of pollutants applicable to the discharge necessary to be implemented
to meet applicable federal or state standards;]
[
Specific effluent limitation
guidelines are promulgated for a discharge covered by the general TPDES permit,
but the general permit has not yet been amended to incorporate the new effluent
limitation guidelines; or]
[
The discharge would
be inconsistent with the state Water Quality Management Plan.]
[
The executive director may
suspend a discharger's authorization under a general permit, and may require
the discharger to immediately cease the discharge. The executive director
may also require the person to apply for and obtain an individual permit if
the discharger is not eligible for authorization under the general permit
for reasons including, but not limited to, the following:]
[
The owner and/or the operator of the facility
has not filed a notice of intent in accordance with §305.43 of this title
(relating to Who Applies);]
[
The quantity of discharge, the type of
waste, or the type of operation does not comply with the general permit;]
[
In the case of determining eligibility
to discharge under the Texas Pollutant Discharge Elimination System (TPDES),
a determination that backsliding under 40 CFR §122.44(l) would occur
if the general permit replaced the individual permit;]
[
Circumstances have changed since the
time of the NOI so that the discharge is no longer appropriately controlled
to meet applicable water quality standards under the general permit, or either
a temporary or permanent reduction or elimination of the authorized discharge
is necessary;]
[
The discharge is a significant contributor
of pollutants impairing the quality of surface or ground water in the state.
In making this determination, the executive director shall consider the following
factors:]
[
The location of the discharge;]
[
The size of the discharge;]
[
The quantity and nature of pollutants discharged;]
[
Whether the discharge would impair existing
or potential uses of ground water, inconsistent with the policy specified
in §26.401 of the Texas Water Code; and]
[
Other factors relating to the protection of
water quality standards;]
[
The discharge is located where it
poses or could pose an adverse impact upon a critical area, as defined in
31 TAC §501.3 (relating to Definitions and Abbreviations), and it is
practicable to locate the discharge in a more suitable location. An alternative
is practicable if it is available and capable of being done in light of cost,
technology, and logistics;]
[
The discharger has been determined by
the commission to have been out of compliance with any rule, order, or permit
of the commission, including non-payment of fees assessed by the commission;]
[
A change has occurred in the availability
of demonstrated technology or practices for the control or abatement of pollutants
applicable to the discharge necessary to be implemented to meet applicable
federal or state standards;]
[
Specific effluent limitation guidelines
are promulgated for a discharge covered by the general TPDES permit, but the
general permit has not yet been amended to incorporate the new effluent limitation
guidelines; or]
[
The discharge would be inconsistent
with the state Water Quality Management Plan.]
(f)
[
(g)
[
(h)
[
(i)
[
§205.5. Permit Duration, Amendment, and Renewal.
(a)
(No change.)
(b)
A general permit remains in effect until amended, revoked,
or canceled by the commission or, unless renewed by the commission, until
it expires.
If before its expiration, the commission proposes to renew
a general permit, the general permit shall remain in effect after the expiration
date for those existing discharges covered by the general permit. The general
permit shall remain in effect for these dischargers until the date on which
the commission takes final action on the proposed permit renewal. No new notices
of intent (NOIs) will be accepted or new authorizations honored for authorization
under the general permit after the expiration date.
(c)
Upon issuance of a renewed or amended general permit,
all facilities, including those covered under the expired general permit,
[
(d)
If the commission
has not proposed to
[
(e)
(No change.)
(f)
Before issuing a general permit, the commission shall
review the
[
§205.6. Annual Fee Assessments.
A person authorized by a general permit shall pay[
§205.7. Additional Characteristics and Conditions for General Permits.
40 Code of Federal Regulations (CFR) §122.28, as amended through
April 2, 1992, at 57 FedReg 11413, is adopted by reference, except 40 CFR §122.28(b)(3)(ii)
and (c), and except as follows: where 40 CFR §122.28 refers to an "NPDES
permit," the references are more properly made, for state law purposes, to
a "TPDES permit," as applicable; and where 40 CFR §122.28(b)(3)(iii)
refers to 40 CFR §122.21, the reference is more properly made, for state
law purposes, to applicable sections of this chapter, Chapter 281 of this
title (relating to Application Processing), and Chapter 305 of this title
(relating to Consolidated Permits).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 19, 2000.
TRD-200003507
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: July 3, 2000
For further information, please call: (512) 239-4712
The Texas Natural Resource Conservation Commission (TNRCC or commission)
proposes new Chapter 334, Subchapter A, §334.18, Limits on Liability
of Taxing Unit and Subchapter C, §334.56, Exempt or Excluded Status;
proposes amendments to Subchapter A, §334.1, Purpose and Applicability; §334.2,
Definitions; §334.3, Statutory Exemptions; §334.4, Commission Exclusions; §334.5,
General Prohibitions; §334.6, Construction Notification; §334.7,
Registration; §334.8, Certification; §334.9, Seller's Disclosure; §334.10,
Reporting and Recordkeeping, §334.12, Other General Provisions; §334.15,
Limits on Liability of Lender; §334.17, Privatization of Storage Tank
Program; and §334.18, Limits on Liability of Taxing Unit; Subchapter
B, §334.21, Fee Assessment; §334.22, Failure To Make Payment; §334.23,
Disposition of Fees, Interest, and Penalties; Subchapter C, §334.41,
Applicability; §334.42, General Standards; §334.43, Variances and
Alternative Procedures; §334.44, Implementation Schedules; §334.45,
Technical Standards for New Underground Storage Tank Systems; §334.46,
Installation Standards for New Underground Storage Tank Systems; §334.47,
Technical Standards for Existing Underground Storage Tank Systems; §334.48,
General Operating and Management Requirements; §334.49, Corrosion Protection; §334.50,
Release Detection; §334.51, Spill and Overfill Prevention and Control; §334.52,
Underground Storage Tank System Repairs and Relining; §334.54, Temporary
Removal from Service; §334.55, Permanent Removal from Service; §334.56,
Exempt or Excluded Status; Subchapter D, §334.71, Applicability; §334.72,
Reporting of Suspected Releases; §334.73, Investigation Due to Off-Site
Impacts; §334.74, Release Investigation and Confirmation Steps; §334.75,
Reporting and Cleanup of Surface Spills and Overfills; §334.76, Initial
Response to Releases; §334.77, Initial Abatement Measures and Site Check; §334.78,
Site Assessment; §334.79, Free Product Removal; §334.80, Investigation
for Soil and Groundwater Cleanup; §334.81, Corrective Action Plan; §334.82,
Public Participation; §334.83, Emergency Orders; §334.84, Corrective
Action by the Commission; §334.85, Management of Waste; Subchapter F, §334.121,
Purpose and Applicability; §334.122, Definitions for ASTs; §334.123,
Statutory Exemptions for ASTs; §334.124, Commission Exclusions for ASTs; §334.125,
General Prohibitions and Requirements for ASTs; §334.126, Installation
Notification for ASTs; §334.127, Registration for ASTs; §334.128,
Annual Facility Fees for ASTs; §334.129, Release Reporting and Corrective
Action for ASTs; §334.130, Reporting and Recordkeeping for ASTs; 334.132,
Other General Provisions for ASTs; Subchapter G, §334.201, Purpose and
Applicability; §334.202, Definitions; §334.203, Risk-Based Criteria
for Establishing Target Concentrations; §334.204, Criteria for Selection
of Land Use; §334.205, Institutional Control Requirements; §334.206,
Institutional Control Use; §334.208, Model Institutional Controls; Subchapter
H, §334.301, Applicability of the Subchapter; §334.302, General
Conditions and Limitations Regarding Reimbursement; §334.303, Time to
File Application; §334.304, Who May File Application; §334.305,
Where and How Documentation Must be Filed; §334.306, Form and Contents
of Application; §334.307, Technical Information Required; §334.308,
Allowable Costs and Restrictions on Allowable Costs; §334.309, Reimbursable
Costs; §334.310, Requirements for Eligibility; §334.312, Owner/Operator
Contribution; §334.313, Review of Application; §334.314, Executive
Director's Fund Payment Report; §334.315, Protest of Fund Payment Report; §334.318,
Recovery of Costs; §334.320, Responsibilities of Owners and Operators; §334.321,
Corrective Action by the Commission; §334.322, Subchapter H Definitions;
Subchapter I, §334.402, Application for Certificate of Registration; §334.403,
Issuance of Certificate of Registration; §334.404, Renewal of Certificate
of Registration; §334.405, Denial of Certificate of Registration; §334.406,
Fee Assessments for Certificate of Registration; §334.407, Other Requirements
for Certificate of Registration; §334.409, Revocation, Suspension, or
Reinstatement of Certificate of Registration and License; §334.411, Type
of Hearing; §334.412, Definitions; §334.414, License for Installers
and On-site Supervisors; §334.416, Requirements for Issuance of License
A and License B; §334.417, Application for License A and License B; §334.418,
Notification of Examination; §334.419, License A and License B Examination; §334.420,
Issuance of License A or License B; §334.421, Renewal of License; §334.422,
Denial of License A or License B; §334.423, Fee Assessments for License
A and License B; §334.424, Other Requirements for a License A and License
B; §334.426, Revocation, Suspension, or Reinstatement of a License A
and License B; §334.428, Type of Hearing; Subchapter J, §334.452,
Exemptions from Subchapter J; §334.453, General Requirements and Prohibitions; §334.455,
Notice to Owner or Operator; §334.456, Application for Certificate of
Registration for Corrective Action Specialist; §334.457, Application
for Certificate of Registration for Corrective Action Project Manager; §334.458,
Review and Issuance of Certificates of Registration; §334.459, Continuing
Education Requirements for Corrective Action Project Managers; §334.460,
Renewal of Certificate of Registration for Corrective Action Specialist and
Corrective Action Project Manager; §334.461, Denial of Certificate of
Registration; §334.462, Other Requirements; §334.463, Grounds for
Revocation or Suspension of Certificate of Registration; §334.465, Procedures
for Revocation or Suspension of a Certificate of Registration; §334.466,
Reinstatement of a Certificate of Registration; §334.467, Fee Assessments
for Certificates of Registration; Subchapter K, §334.481, Definitions; §334.482,
General Prohibitions; §334.484, Registration Required for Petroleum-Substance
Waste Storage or Treatment Facilities; §334.485, Suspension or Revocation
of Registration; §334.486, Denial of Application for Registration or
Renewal; §334.487, Renewal of Registration; §334.488, Authorization
for Class C and Class D Facilities; §334.490, Notification and Mobilization
Requirements for Class B Facilities; §334.492, Public Notice; §334.493,
Public Meetings for Class A Facilities; §334.494, Closure and Facility
Expansion; §334.495, Location Standards for Class A Petroleum-Substance
Waste Storage or Treatment Facilities; §334.496, Shipping Procedures
Applicable to Generators of Petroleum-Substance Waste; §334.497, Recordkeeping
and Reporting Procedures Applicable to Generators; §334.499, Shipping
Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal
Facilities; §334.500, Recordkeeping Requirements Applicable to Owners
or Operators of Storage, Treatment, or Disposal Facilities; §334.501,
Additional Reports; §334.502, Design and Operating Requirements of Stockpiles
and Land Surface Treatment Units; §334.503, Reuse of Petroleum-Substance
Waste; §334.504, Contaminant Assessment Program and Corrective Action; §334.506,
Contingency Plan; §334.507, Emergency Procedures; §334.508, Closure
Requirements Applicable to Class A and Class B Facilities; and Subchapter
L, §334.531, Responsibility of Recipients of Money from the PSTR Fund
and Persons Paid by Recipients of Money from the Petroleum Storage Tank Remediation
Fund; §334.532, Payments; §334.533, Audits; §334.534, Notice
of Overpayment; §334.535, Objections to the Notice of Overpayment and
Formal Petition for Hearing; and §334.537, Failure to Return Overpayment
or Cooperate with Audit or Investigation; and the repeal of Subchapter A, §334.11,
Enforcement; Subchapter E, §334.91-334.110, Financial Responsibility;
Subchapter F, §334.131, Enforcement for ASTs; Subchapter I, §334.413,
License for Installers and On-Site Supervisors and §334.429, Penalties
Effective On or After September 1, 1995. The commission proposes these revisions
to Chapter 334, Underground and Aboveground Storage Tanks, to implement House
Bills (HBs) 2109, 2815, and 2816, 76th Legislature, 1999, and their corresponding
changes to the Texas Water Code (TWC); and to do "limited" regulatory reform
amendments to streamline the rules and to improve clarity and readability.
The commission also proposes the review of the rules in Chapter 334 as
required by the Texas Government Code, §2001.039, and the General Appropriations
Act, Article IX, §9-10.13, 76th Legislature, 1999. The proposed notice
of review can be found in the Rule Review section of this issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The proposed rules implement House Bills (HBs) 2109, 2815, and 2816, 76th
legislature, 1999. HB 2109 limits environmental liability for qualifying local
taxing authorities that foreclose on properties with storage tanks. HB 2815
creates an annual compliance self-certification process, whereby certain tank
owners/operators must certify that their tanks meet certain technical and
administrative requirements prior to accepting motor fuel deliveries, and
"common carriers" must verify (through the observation of a delivery certificate)
that self-certification has been accomplished prior to delivering fuel. HB
2815 also extends two corrective action deadlines for being eligible for reimbursement
from the state Petroleum Storage Tank Reimbursement Fund without an increase
in the deductible paid by the owner or operator. The December 23, 1997 corrective
action plan deadline was extended by six months; and the December 23, 1998
corrective action implementation goals deadline was extended by 12 months.
Also, HB 2815 added a requirement for the agency to respond to an administratively
complete reimbursement application with a fund payment report by the 90th
day from receipt of the application. In HB 2816, the expiration date of the
Petroleum Storage Tank Reimbursement Fund was extended an additional two years
to September 1, 2003. The agency also decided to do a limited amount of regulatory
reform that would not delay the rule changes needed to implement the legislation
and to open Chapter 334 to rule review public comment.
One element of this proposal is to make certain tank operators jointly
and severally liable with certain tank owners under §334.7, Registration.
To implement HB 2815, the new compliance certification program is being merged
with the existing tank registration program. Since the bill calls for operators
to be jointly and severally liable with tank owners for compliance certification
purposes, the TNRCC is proposing the same type of liability for tank registration
purposes. Aside from facilitating the implementation of the bill, making this
change would also bring §334.7 in line with the liability scheme of the
remainder of Chapter 334 (excluding tank fees, which is statutorily derived).
Other benefits of this change include increased compliance with tank registration
requirements (which are an element of federal program delegation)--and agency
tank registration rules establish the database that facilitates annual tank
fee billings, aids in establishing "responsible parties" for leaking petroleum
storage tank sites, etc.
SECTION BY SECTION DISCUSSION
The commission has conducted a preliminary review of the rules under Chapter
334 and has determined that the justification for their adoption continues
to exist. The rules are necessary to prevent the contamination of water and
other media by leaks from storage tanks and to provide requirements for remediation
of petroleum contaminated sites and soils; to implement TWC, Chapter 26, Subchapter
I, Underground Storage Tanks and Subchapter K, Underground Storage Tank Installers;
and to implement requirements necessary to maintain federal petroleum storage
tank (PST) program delegation.
Unless otherwise noted, all the federal citations in this proposed rulemaking
will be adopted as they currently exist, as well as prospectively amended
by the United States Environmental Protection Agency.
Subchapter A, General Provisions
The primary purpose of the proposed amendments is to incorporate changes
into the program as a result of the passage of HBs 2109 and 2815. HB 2109
limits environmental liability for qualifying local taxing authorities that
foreclose on properties with storage tanks. HB 2815 creates an annual tank
requirement self-certification process, whereby tank owners/operators must
certify that their tanks meet certain technical and administrative requirements
to prior to accepting motor fuel deliveries, and "common carriers" must verify
(through the observation of a delivery certificate) that self-certification
has been accomplished prior to delivering fuel.
Throughout this rulemaking, "executive director" and "commissioner" are
often changed to "agency" to be consistent with the agency general definitions
in 30 TAC Chapter 3. The reason for these changes, just given, will not be
discussed further in this preamble, but each instance will be noted.
Also, throughout this rulemaking, many changes have been made to correct
formatting, such as defining acronyms and subsequently using them in place
of the defined term (underground storage tank (UST), aboveground storage tank
(AST), Texas Water Code (TWC), leaking petroleum storage tank (LPST), petroleum
storage tank remediation (PSTR), etc.), deleting the title cross references
where the title of the referenced section has already been given once within
the rule section, change "a" to "an", capitalization changes, spelling out
numbers ten and below, etc. These type of formatting changes will not be discussed
further in this preamble.
Section 334.1, Purpose and Applicability, is proposed to be amended. Section
334.1(a)(1) is proposed to be amended to clarify the rule and more accurately
reflect the regulatory scheme: by changing the phrase "underground storage
tank systems storing hazardous substances and petroleum substances" to "hazardous
substance and petroleum substance underground storage tank (UST) systems";
by changing the phrase "and for aboveground storage tanks storing certain
petroleum products" to "and a limited regulatory program for petroleum product
aboveground storage tanks (ASTs)"; and by adding the phrase "and Subchapter
K" to the included reference. Section 334.1(b)(1) is proposed to be amended
to replace "shall be" with "is" to improve readability. Section 334.1(b)(1)(C)
and (D) is proposed to be amended to delete an unnecessary comma, and to delete
"Statutory" and "Commission" and add "for Underground Storage Tanks (USTs)
and UST Systems" to reflect the proposed new names of the referenced sections.
Section 334.1(b)(2) is proposed to be amended to delete "applicable" and to
replace "shall apply" with "are applicable" to improve readability, to add
"self-certification" to reflect the new rules implementing HB 2815, to add
"(including risk-based corrective action)" as a clarification to reflect the
addition of previously adopted risk based concepts elsewhere in this chapter,
and to add a cross reference to the underground storage tank (UST) financial
assurance requirements in Chapter 37, new Subchapter I, Financial Assurance
for Petroleum Underground Storage Tank Systems. Section 334.1(b)(3) is proposed
to be amended to delete "applicable" to provide clarification and to delete
"shall" to improve readability. Section 334.1(b)(4) is proposed to be amended
to replace "shall be" with "are" to improve readability. Section 334.1(c)(1)
is proposed to be amended to replace "shall be" with "is" to improve readability.
Section 334.1(c)(1)(A) and (B) is proposed to be amended to reflect the movement
of the definitions from Subchapter F, Aboveground Storage Tanks, to §334.2,
Definitions. The term "for ASTs" was deleted in §334.1(c)(1)(A) to reflect
the movement of the definition from Subchapter F to §334.2. Section 334.1(c)(1)(C)
is proposed to be amended to replace "in" with "under" to improve readability,
and to delete "Statutory" and add "Aboveground Storage Tanks (ASTs)" to reflect
the new name of the referenced section. Section 334.1(c)(1)(D) is proposed
to be amended to replace "in" with "under" to improve readability and to delete
"Commission" and add "Aboveground Storage Tanks" to reflect the new name of
the referenced section. Section 334.1(c)(2) is proposed to be amended to delete
the word "applicable" to provide clarification; to delete word "shall" to
improve readability and to insert the term "(including risk-based corrective
action)" to provide clarification and to reflect the addition of previously
adopted risk based concepts elsewhere in this chapter. Section 334.1(c)(4)
is proposed to be amended to replace "shall be" with "are" to improve readability.
Section 334.1(c)(6) is proposed to be amended to delete the word "statutory"
to be consistent with the new name of the referenced section, to delete the §334.123
title because it has already been given once in this section, and to replace
"shall be" with "is" to improve readability. Section 334.1(d)(1) and (2) is
proposed to be reorganized to clarify them as to applicability of the sections
in this subchapter and to improve readability.
Section 334.2, Definitions, of this subchapter is proposed to be amended.
The definitions in this section are proposed to be amended by renumbering
to reflect the proposed addition and deletion of various definitions in this
section. In the first sentence of the section, the word "shall" is proposed
to be deleted to improve readability. The definition "Abandonment-in-place"
is proposed to be amended to define the acronym for underground storage tank
the first time it is used and to add a cross reference for clarification.
The definition "Abatement" is proposed to be moved to this subchapter from
Subchapter H, Petroleum Storage Tank Reimbursement Program, since it is used
in more than one subchapter and the term is clarified. The definition "Aboveground
storage tank (AST)" is proposed to be moved to this subchapter from Subchapter
F. The existing definition, "Accidental release" is proposed to be deleted
from this subchapter and moved to the definitions section of Chapter 37, new
Subchapter I. The definition "ACT" is proposed to be amended by adding language
to add clarification and improve readability. The definition "Allowable cost"
is proposed to be amended by removing the word "Interim" in the cross reference
to Subchapter H, §334.308, to reflect the proposed new title of the section.
The definition "ANSI" is proposed to be amended by adding descriptive language
to provide clarification and improve readability. The definition "API" is
proposed to be amended by adding descriptive language to provide clarification
and improve readability. The term "Appropriate district office" and its definition
are proposed to be amended by changing "district" to "regional" in two places
to reflect current agency terminology; by changing "commission's to "agency's"
and "commission" to "agency"; and by adding "or AST system" to provide clarification.
The definition "ASTM" is proposed to be amended by adding descriptive language
to provide clarification and improve readability. The definition "Backfill"
is proposed to be moved to this subchapter from Subchapter H because it is
used in more than one chapter. The existing definition, "Bodily Injury" is
proposed to be deleted from this subchapter and moved to the definitions section
of Chapter 37, new Subchapter I. The existing definition, "Bulk storage tank"
is proposed to be deleted as an unnecessary term and to avoid confusion with
the "bulk facility" term in Subchapter F. The definition "Closure letter"
is proposed to be amended to change "commission" to "agency" in three places
and to add clarification by deleting specific reference to owners or operators
to acknowledge that landowner responsible parties can also obtain a closure
letter upon completion of cleanup. The definition "Commingled" is proposed
to be moved to this subchapter from Subchapter H and clarified. The existing
definition, "Commission" is proposed to be deleted because it is defined in
Chapter 3. The definition "Common carrier" is proposed to be added to this
section to define the term used in rules necessary to implement the requirements
of HB 2815 and the term is used in proposed rule clarification language applicable
to existing UST and AST delivery prohibitions. The definition "Composite tank"
is proposed to be amended by replacing "an external" with "a" and adding "to
the external surface of the outer tank wall" to provide clarification and
to improve readability. The existing definition, "Controlling interest" is
proposed to be deleted from this subchapter and moved to Chapter 37, new Subchapter
I. The definition "Corrective action" is proposed to be moved to this subchapter
from Subchapter H because it is used in more than one subchapter and clarified
by adding the word "monitoring" in the list of activities. The definition
"Corrective action plan (or remedial action plan)" is proposed to be moved
to this subchapter from Subchapter H because it is used in more than one subchapter
and clarified by adding the word "required" before the word "protection."
Under the definition, "Corrosion specialist", subparagraphs (A) and (B) are
proposed to be amended to reflect the current names of the National Association
of Corrosion Engineers and the Texas State Board of Registration for Professional
Engineers. Under the definition for "Corrosion technician", subparagraphs
(A) and (C) are proposed to be amended to reflect the current name of the
National Association of Corrosion Engineers. Subparagraph (B) is proposed
to be amended by inserting the word "or" at its end for readability and subparagraph
(D) is proposed to be deleted to ensure appropriate certification by NACE
International or direct supervision by a corrosion specialist. The existing
definition, "Cost effective work" is proposed to be deleted as an outdated
auditing term. The definition "Emergency generator" is proposed to be amended
by removing "shall" for readability. The existing definition, "EPA" is proposed
to be deleted because it is defined in Chapter 3, which contains agency general
definitions. The existing definition, "Executive director" is proposed to
be deleted. The definition "Existing UST system" is proposed to be amended
by changing "has" to "had" in four places, "can" to "could," "require" to
"required," and "is" to "was" to improve readability. The definition "Facility"
is proposed to be amended by deleting the definition from Subchapter F; that
deletion is compensated for in this definition by adding the term "or one
or more AST systems"; and unnecessary and confusing language which could have
been read to include all contiguous land, even that owned by others, is proposed
to be deleted. The existing definition, "Facility owner" is proposed to be
deleted as an unnecessary term. The definition "Field constructed tank" is
proposed to be amended by adding the phrase "not factory assembled, and which
is, " by adding the word "same," and by replacing "to be" with "subsequently"
to provide clarification and improve readability. The existing definition,
"Financial reporting year" is proposed to be deleted from this subchapter
and moved to Chapter 37, new Subchapter I. The definition "Flow-through process
tank" is proposed to be amended by deleting the phrase "not including" and
replacing it with "excluding" to improve readability. The definition "Free
product" is proposed to be amended by adding "(or non-aqueous phase liquid)"
for clarification and cross reference purposes. The definition "Hydraulic
fluid" is proposed to be moved to this subchapter from Subchapter H. The definition
"Hydraulic lift tank" is proposed to be amended by changing "and" to "or"
to provide clarification. The definition "Jacketed tank" is proposed to be
added to this section to better address existing and new UST technology. The
existing definition, "Legal defense cost" is proposed to be deleted from this
subchapter and moved to Chapter 37, new Subchapter I. The definition "Lender"
is proposed to be amended by adding the term "state or federal" to better
define "savings bank" and by adding the term "a credit union" to the list
of lenders to provide clarification. The definition "Leaking petroleum storage
tank (LPST) site" is proposed to be moved to this subchapter from Subchapter
K, Storage, Treatment, and Reuse Procedures for Petroleum--Substance Contaminated
Soil, and amended by changing the term "executive director" to "agency." The
definition "Monitoring well" is proposed to be amended by changing "shall"
to "does" to improve clarity and readability. The definition "Motor fuel"
is proposed to be amended by providing clarification and improve readability
by changing "transportation" to "motor", by adding "aircraft" to the list
of vehicles and vessels since aviation gasoline is one of the originally listed
fuels in the definition, by changing "leaded or unleaded" to "motor", and
by changing "and any grades of" to "or." The definition "NACE" is proposed
to be amended by providing changes which reflect the current as well as the
former name of the organization and by providing descriptive language about
what the association is, for clarification. The existing definition, cost"
is proposed to be deleted as an outdated auditing term. The existing definition,
"Necessary work/technically necessary work" is proposed to be deleted as an
outdated auditing term. The definition "New UST system" is proposed to be
amended by deleting the word "has" to improve readability. The definition
"NFPA" is proposed to be amended by adding descriptive language about what
the association is, for clarification. The definition "Non-aqueous phase liquid
(NAPL)" is proposed to be added to this section and a cross reference to the
definition "Free product (or non-aqueous phase liquid)" in this section added
to provide clarification and to recognize the interchangeability of the terms.
The definition "Occurrence" is proposed to be amended by replacing "accident"
with "incident," by adding "or AST" and "or tank system" to clarify the meaning
and effect of the term, and by removing unnecessary language applicable to
financial responsibility. The definition " Operator" is proposed to be amended
by adding language to specify persons who are in "day-to-day" control of "and"
have responsibility for daily operation to reflect the requirements of HB
2815 and by adding language to include application to aboveground storage
tank systems to compensate for the deletion of this definition from Subchapter
F. The definition "Owner" is proposed to be amended by adding language to
include application to ASTs to compensate for the deletion of this definition
from Subchapter F and by adding the phrase "Except as otherwise provided by
the Texas Water Code, §§26.3514-26.3516, owner" to incorporate HB
2109 and the other listed statutory exceptions. The definition "PEI" is proposed
to be amended by adding descriptive language about what the association is,
to provide clarification. The definition "Petroleum product" is proposed to
be moved from Subchapter F, to this section because it is used in more than
one subchapter and to be modified by deleting the word "necessarily" from
the phrase "not necessarily limited" to improve readability. The definition
"Petroleum substance" is proposed to be amended by movement of a cross reference
phrase from the end of the definition to the middle to improve clarity, by
changing "shall be" to "is" to improve readability, and by deleting subparagraph
(N) from the list of substances/mixtures to make the rest of the list all-inclusive.
The definition "Petroleum UST system" is proposed to be amended by changing
the word "shall" to "must" to improve readability. The definition "Piping"
is proposed to be amended by adding "in an UST system" to improve clarity.
The definition "Professional engineer" is proposed to be amended by updating
the name of the Texas Board of Professional Engineers and to comply with the
language of the most recent version of the Engineering Practice Act. The existing
definition, "Property Damage" is proposed to be deleted from this subchapter
and moved to Chapter 37, new Subchapter I, because it concerns UST financial
assurance. The existing definition, "Provider of financial assurance" is proposed
to be deleted from this subchapter and moved to Chapter 37, new Subchapter
I, because it concerns financial assurance. The existing definition, "Reasonable
cost," is proposed to be deleted from this subchapter as an outdated auditing
term. The definition "Regulated substance" is proposed to be amended by changing
the term "shall be" to "is" to improve readability. The existing definition,
"Reimbursable cost," is proposed to be deleted because the concept is addressed
by rule in Subchapters H and M of this chapter. The definition "Release" is
proposed to be amended by adding language to include application to ASTs to
compensate for the deletion of this definition from Subchapter F. The definition
"Release detection" is proposed to be amended by adding "is occurring or"
to provide clarity. The definition "Responsible party" is proposed to be added
to this subchapter to provide a regulatory definition of a commonly used term
in the PST program, also it captures the concept that the agency has always
been able to use its discretion to choose the party, from among those with
a legal liability for an LPST site, to which it will issue corrective action
directives. The definition "Retail service station" is proposed to be moved
to this subchapter from Subchapter F, because it is used in more than one
subchapter. The existing definition, "SARA" is proposed to be deleted from
this subchapter because it is defined in Chapter 3. The definition "Secondary
Containment" is proposed to be amended by providing clarity and improve readability
by adding the terms "jacket", "jackets", "containment boots", and "sumps",
by moving "and double-wall tank and/or piping systems" from the end to the
beginning of the list of systems, and by changing a comma to a colon for better
punctuation. The definition "STI" is proposed to be amended by adding descriptive
language about what the organization is, to provide clarification and improve
readability. The existing definition, "Substantial business relationship"
is proposed to be deleted and moved to Chapter 37, new Subchapter I, because
the definition concerns financial assurance. The definition "Sump" is proposed
to be amended by changing "temporarily" to "and temporarily store" to provide
clarification and improve readability. The existing definition, "Tangible
net worth," is proposed to be deleted and moved to Chapter 37, new Subchapter
I, because the definition concerns financial assurance. The definition "Taxing
Unit" is proposed to be added to this section to facilitate implementation
of HB 2109's limitation of environmental liability for local taxing units
foreclosing on properties with storage tanks. The definition "Temporary removal
from service" is proposed to be amended by changing "kept" to "taken" and
deleting the phrase "required to be" to provide clarification and improve
readability. The definition "Tightness test (or tightness testing)" is proposed
to be amended by deleting "the ability of", "contain the stored substance,
to prevent any", and ", and to prevent the intrusion of groundwater into a
tank or piping system"; and by adding "determine whether the system(s) is
capable of preventing the" to simplify and clarify the definition and improve
readability. The existing definition, "TNRCC," is proposed to be to be deleted
as unnecessary. The existing definition, "TWC," is proposed to be deleted
as an outdated term because the Texas Water Commission was merged into the
Texas Natural Resource Conservation Commission in 1993. The definition "UL"
is proposed to be amended by adding descriptive language about what the organization
is, to provide clarification and improve readability. The definition "Underground
storage tank system" is proposed to be amended by specifying "underground"
with reference to piping and ancillary equipment to improve clarity.
Section 334.3, Statutory Exemptions, is proposed to be amended. The title
of the section is proposed to be amended to delete the term "Statutory" as
unnecessary and to add "for Underground Storage Tanks (USTs) and UST Systems"
after the word "Exemptions" to provide specificity and clarification. Section
334.3(a) is proposed to be amended to remove an unnecessary statutory reference.
Section 334.3(a)(8) is proposed to be amended to add the descriptive term
"Title" to the reference to federal regulations. Section 334.3(b) is proposed
to be amended to delete the word "shall" to improve readability. Section 334.3(c)
is proposed to be added to make explicit that the agency may ask a tank owner
and tank operator to verify claimed exempt status.
Section 334.4, Commission Exclusions, is proposed to be amended. The title
of the section is proposed to be amended to delete the term "Commission" as
unnecessary and to add the phrase "for Underground Storage Tanks (USTs) and
UST Systems" after the word "Exclusions" to provide specificity and clarification.
Section 334.4(a) is proposed to be amended to delete "Statutory" and add "for
Underground Storage Tanks (USTs) and UST Systems" to reflect the new title
of the referenced section, and to remove "by commission directive" as unnecessary
language. Section 334.4(a)(4) is proposed to be amended to delete "however"
and replace "shall" with "must" to improve readability. Section 334.4(a)(5)
is proposed to be amended to replace "contain" with "during their entire operational
life have exclusively contained only" to more specifically address historical
as well as present use of the UST system and to address the possibility of
previous release of regulated substance. Section 334.4(b) is proposed to be
amended to reflect the new location of, and to provide a reference to, PST
financial assurance rules; to properly replace "chapter" with "title" in that
reference; and to add "for Underground Storage Tanks (USTs) and UST Systems"
to reflect the new title of §334.8. Section 334.4(c) is proposed to be
amended to remove the word "shall" to improve readability. Section 334.4(d)
is proposed to be added to make explicit that the agency may ask a tank owner
and tank operator to verify claimed excluded status.
Section 334.5, General Prohibitions, is proposed to be amended. The title
of the section is proposed to be amended to add "for Underground Storage Tanks
(USTs) and UST Systems" to provide clarification. Section 334.5(a) is proposed
to be amended by adding the term "prohibitions" and replacing "shall" with
"may" to provide clarification and improve readability. Section 334.5(a)(1)
is proposed to be amended to replace "shall" with "must" to improve readability.
Section 334.5(a)(2) is proposed to be amended to replace "shall" with "must"
in two places and to replace "shall prevent" with "prevents" to improve readability.
Section 334.5(a)(3) is proposed to be amended to replace "shall" with "must"
to improve readability. Section 334.5(b) is proposed to be amended by adding
the term "prohibitions" to provide clarification. Sections 334.5(b)(1) and
(2) are proposed to be deleted and replaced with new language in §334.5(b)(1)-(5)
to reflect requirements imposed by HB 2815. Existing PST rules contain a delivery
prohibition tied to tank registration. HB 2815 charges the agency to adopt
rules creating a delivery prohibition tied to a new compliance self-certification
requirement for owners and operators. These proposed rules combine the existing
delivery prohibition with the new statutorily required one. The agency has
created a new form that will serve for both tank registration and compliance
self-certification purposes. Proper completion of the form will lead to TNRCC
issuance of a delivery certificate. That certificate will act as documentation
that the owner or operator has properly registered his USTs, and has made
the proper compliance self-certification for those USTs. Prior to delivery,
a common carrier is charged with seeing a valid, current delivery certificate
(or temporary delivery authorization, for new or replacement UST systems).
The new rules give a phase-in schedule for the delivery prohibition with regard
to USTs that store regulated substances that are not motor fuels. Sections
334.5(c) and (d) are proposed to be deleted as redundant to §334.6 and §334.7,
respectively, of this subchapter.
Section 334.6, Construction Notification, is proposed to be amended. The
title of the section is proposed to be amended to add "for Underground Storage
Tanks (USTs) and UST Systems" to provide clarification. Section 334.6(a)(1)
is proposed to be amended to change "shall" to "must" to improve readability.
Section 334.6(a)(2) is proposed to be amended to change the phrase "the effective
date of this subchapter" to "September 29, 1989" to maintain the meaning of
the rule, and to change "shall" to "must" to improve readability. Section
334.6(a)(3) is proposed to be amended to change "shall" to "must" to improve
readability, to change "executive director" to "agency", and to correct the
chapter number of the referenced Edwards Aquifer rule from "313" to "213."
Section 334.6(a)(4) and (5) is proposed to be amended to change "shall" to
"must" to improve readability. Section 334.6(a)(6) is proposed to be amended
to change "commission's" to "agency's" in two places and to change "a commission"
to "an agency", to change "district' to "regional" to reflect current agency
terminology, and to change "shall" to "must" to improve readability. Section
334.6(a)(7) is proposed to be amended to change "shall" to "must" and "shall
be" to "are" to improve readability, and to modify an existing phrase regarding
contractors and consultants to include them as possible examples of an authorized
agent of an owner or operator. Section 334.6(b)(1)(A) is proposed to be amended
to change "shall include" to "includes" to provide clarification and to improve
readability. Section 334.6(b)(1)(B) is proposed to be amended to change "shall"
to "are" and delete "be" to improve readability. Section 334.6(b)(2) is proposed
to be amended by deleting "person" and replacing it with "owner or operator"
to provide clarification that the liability under this section is joint and
several between owners and operators, to change "shall" to "must" to improve
readability, and to change "executive director" to "agency." Section 334.6(b)(2)(A)
is proposed to be amended to change "commission's" to "agency's." Section
334.6(b)(2)(B) is proposed to be amended by changing "executive director"
to "agency", and by changing "must" to "shall" and "shall" to "is" to improve
readability. Section 334.6(b)(2)(C) is proposed to be amended to change "shall"
to "or operator must" to provide clarification pursuant to the change in language
addressed in §334.6(b)(2), to change "commission's" to "agency's", to
change "district" to "regional" to reflect current agency terminology, and
to change "shall" to "must" to improve readability. Section 334.6(b)(3) is
proposed to be amended by adding "or operator" in two places to reflect joint
and several liability of owners and operators under this section, to change
"shall" to "must" to improve readability, and to change "district" to "regional"
to reflect current agency terminology. Section 334.6(b)(3)(A) is proposed
to be amended by adding "or operator" to reflect the joint and several liability
of owners and operators under this section, and to change "shall" to "must"
to improve readability. Section 334.6(b)(3)(B) is proposed to be amended by
adding "or operator" to reflect the joint and several liability of owners
and operators under this section, to change "commission's" to "agency's",
and to change "district" to "regional" to reflect current agency terminology.
Section 334.6(b)(4) is proposed to be amended to change "shall be" to "is",
"shall" to "must", "shall have" to "has" and "shall" to "will" to improve
readability; to add "or operator" in two places to reflect the joint and several
liability of owners and operators under this section; to change "commission's
" to "agency's"; and to change "district" to "regional," "district manager"
to "regional director," and "manager's" to "director's" to reflect current
agency terminology. Section 334.6(b)(4)(A) is proposed to be amended by adding
"or operator" to reflect the joint and several liability of owners and operators
under this section. Section 334.6(b)(4)(B) is proposed to be amended to change
"commission " to "agency." Section 334.6(b)(5) is proposed to be amended by
changing "shall be" to "is", "shall" to "will," and "shall" to "must" to improve
readability; and by adding "or operator" to reflect the joint and several
liability of owners and operators under this section. Section 334.6(b)(6)(A)
is proposed to be amended by changing "shall" to "must" to improve readability
and by changing "commission's" to "agency's." Section 334.6(b)(6)(B) is proposed
to be amended by changing "shall" to "must" in three places, by deleting the
word "as" to improve readability, by deleting "as possible" to eliminate inappropriate
ambiguity, and by adding ", the operator" and replacing "owner's designated
representative" with "authorized representative of the owner or operator"
to reflect the joint and several liability of owners and operators under this
section and to provide more clarification with respect to authorized agents
of owners and operators. Section 334.6(c)(1) is proposed to be amended by
adding "or operator" to reflect the joint and several liability of owners
and operators under this section. Section 334.6(c)(1)(A) is proposed to be
amended by adding the term "or operator" as a clarification and to be consist
with its addition to §334.6(c)(1); by changing "shall" to "must" in two
places to improve readability; by changing "commission" to "agency" and "commission's"
to "agency's"; and by changing "district" to "regional" to reflect current
agency terminology. Section 334.6(c)(1)(B) is proposed to be amended by adding
the term "or operator" in four places as a clarification to be consistent
with its addition to subsection §334.6(c)(1); by changing "district manager"
to "regional director" and "manager's" to "regional director's" to reflect
current agency terminology; by changing "shall" to "must" to improve readability;
and by changing "commission" to "agency" in two places. Section 334.6(c)(2)(A)
is proposed to be amended by adding "or operator" to reflect the joint and
several liability of owners and operators under this section. Section 334.6(c)(2)(D)
is proposed to be amended by adding a cross reference to §334.2, for
the definition of the term "Emergency generator." Section 334.6(c)(2)(E) is
proposed to be amended by changing "executive director" to "agency."
Section 334.7, Registration, is proposed to be amended. The title of the
section is proposed to be amended to add the term "for Underground Storage
Tanks (USTs) and UST Systems" to provide clarification. Section 334.7(a)(1)
is proposed to be amended by changing "shall" to "must" to improve readability;
by changing "commission" to "agency" in two places; and by adding a phrase
which includes the cross reference "in accordance with subsection (e) of this
section" to provide clarification. Section 334.7(a)(1)(A) is proposed to be
amended to delete "Statutory" and add "for Underground Storage Tanks (USTs)
and UST Systems" to reflect the proposed new title of the section referenced
in this subparagraph. Section 334.7(a)(1)(B) is proposed to be amended to
delete "Commission" and add "for Underground Storage Tanks (USTs) and UST
Systems" to reflect the proposed new title of the section referenced in this
subparagraph. Section 334.7(a)(1)(C) is proposed to be amended to by changing
"commission" to "agency"; and by changing "has submitted" to "or operator
must submit" to reflect that the agency proposes that owners and operators
be made jointly and severally liable for all requirements in the section.
This will mirror the liability scheme of the remainder of Chapter 334 (except
for tank fees). Section 334.7(a)(1)(E)(i) is proposed to be amended to add
"and operator" to reflect the proposed change to joint and several liability
for this section. Section 334.7(a)(2) is proposed to be amended by adding
"and operator" to reflect the proposed change to joint and several liability
for this section; by replacing "shall be" with "are" to improve readability;
by adding "or operator" to reflect the proposed change to joint and several
liability for this section; and by changing "shall be held" to "and operator
remain" to reflect the proposed change to joint and several liability for
this section and to improve readability. Section 334.7(a)(3) is proposed to
be amended by changing "shall" to "are" and deleting "be" to improve readability;
by adding "or operator" to reflect the proposed change to joint and several
liability for this section; by adding "or timely" to provide clarification;
and by replacing "shall" with "does" to improve readability. Section 334.7(b)
is proposed to be amended to change "shall" to "must" to improve readability;
and to change "commission" to "agency" in two places. Subsection (b) is also
proposed to be amended by adding the sentence "Upon the effective date of
this subsection, the obligation becomes joint and several with the tank operator
as well" to reflect the proposed change to joint and several liability for
this section. Section 334.7(c) is proposed to be amended to change "executive
director" to "agency" and "commission" to "agency." Subsection (c) is also
proposed to be amended by adding the sentence "Upon the effective date of
this subsection, the obligation becomes joint and several with the tank operator
as well" to reflect the proposed change to joint and several liability for
this section. Section 334.7(d)(1) is proposed to be amended by adding the
term "or operator" to reflect the proposed change to joint and several liability
for this section; by changing "shall" to "must" in two places and "shall"
to "are" in one place to improve readability; by changing "executive director"
to "agency"; and by deleting "necessarily be" to provide clarity. Section
334.7(d)(1)(A) is proposed to be amended by changing "ownership" to "owner
or operator" for clarification and to reflect the proposed change to joint
and several liability for this section; by adding "authorized representative"
for clarification; and by adding ", provided that:" at the end of the subparagraph
to indicate applicable allowances and restrictions follow. Section 334.7(d)(1)(B)
is proposed to be amended to replace "each" with "any" to improve readability;
to delete "or" to improve readability; and to add two items to the list of
examples of operational status, those being "change-in-service to provide
for the storage of a substance other than a regulated substance, or change
to exempt or excluded status" to better clarify options available under applicable
rule. Section 334.7(d)(1)(C) is proposed to be amended to delete the reference
to "change-in-service to provide for the storage of a substance other than
a regulated substance" which is proposed to be moved to the list of examples
in the §334.7(d)(1)(B) to provide clarification. Section 334.7(d)(1)(D)
is proposed to be amended by adding "/or" to the word "and" to provide clarification
and specify an either/or situation. Section 334.7(d)(1)(J) is proposed to
be amended by replacing "responsibility" with "assurance" to provide clarification;
and by adding a reference to reflect the new location of PST financial assurance
rules, specifically, Chapter 37, new Subchapter I. Section 334.7(d)(2) is
proposed to be amended by changing "shall" to "must" in two places to improve
readability; by changing "commission registration" to "agency" to be consistent
with proposed rule changes (see preamble comments for proposed changes to §334.5
of this subchapter), which make "commission registration form" outdated terminology;
by changing the term "commission's" to "agency's"; and by deleting "registration"
as unnecessary in the second sentence. Section 334.7(d)(3) is proposed to
be amended by changing "shall" to "must" to improve readability and by changing
"executive director" to "agency." Section 334.7(d)(4) is proposed to be added
as a provision to facilitate the issuance of delivery certificates, as required
by HB 2815 and as detailed in proposed changes to §334.8(c) of this subchapter.
HB 2815 mandates that the agency create a compliance self-certification program
that operates on a per-tank basis (as opposed to per-facility). A common carrier
must be able to look at the delivery certificate and determine which tanks
are covered at a given facility. For the agency to be able to issue delivery
certificates which contain that level of detail, owners or operators must,
at least once, fill out a new UST registration and self-certification form
with sufficient information to identify (under a standardized numbering system)
each tank at that facility. The agency will utilize the information from this
one-time submittal to generate delivery certificates which are tank specific
(as required under HB 2815). Subsection (e) is proposed to be amended to change
its catch line to reflect proposed rule changes which make the term "registration
form" an outdated term, as the agency has created a new form that will serve
for both tank registration and compliance self-certification purposes. Section
334.7(e)(1) is proposed to be amended to change "tank" in two places and "tank
owned" in one place to "UST" to provide clarification; to add "or operator"
after "owner" to reflect the proposed change to joint and several liability
for this section; to change "shall" to "must" to improve readability; to change
"commission's" to "agency's"; to delete "registration" as an outdated term;
and to add a sentence specifying that UST registration information must be
provided on the appropriate agency form and providing a reference to the proposed
new §334.7(e)(6). Section 334.7(e)(2) is proposed to be amended by changing
"tank" to "UST" to provide clarification; by adding "portion of the" to provide
clarification which reflects that the agency has created a new form that will
serve for both tank registration and compliance self-certification purposes;
by changing "shall" to "must" in three places to improve readability; by deleting
"as" and "as possible" to eliminate inappropriate ambiguity; by adding "or
the operator" to reflect the joint and several liability of owners and operators
under this section; by changing "owner's designated" to "authorized", by adding
"of the owner or operator" to provide more clarification with respect to authorized
agents of owners and operators; and by changing "executive director" to "agency."
Section 334.7(e)(3) is proposed to be amended by changing "tank" to "UST"
in two places and "tanks" to "USTs" in one place to provide clarification;
by adding "or operators" to reflect the joint and several liability of owners
and operators under this section; by changing "shall" to "must" to improve
readability; and by deleting "registration" as an outdated term. Section 334.7(e)(4)
is proposed to be amended by changing "tank" to "UST" and "tanks" to "or operate
USTs" to provide clarification; by adding "or operators" and "or operate USTs"
to reflect the joint and several liability of owners and operators under this
section; by changing "shall" to "must" to improve readability; by deleting
the term "registration" as an outdated term; and by adding "where regulated
USTs are located" to provide clarification. Section 334.7(e)(5) is proposed
to be amended by changing "shall" to must to improve readability; by changing
"should" to "must" to eliminate inappropriate ambiguity; and by deleting "registration"
as an outdated term. Section 334.7(e)(6) is proposed to be added to reflect
that tank registration requirements in this section, as well as the compliance
self-certification requirements proposed in §334.8(c) of this subchapter,
will be provided on a new combined form to minimize the paperwork burdens
on owners and operators and on the agency so that delivery certificates are
issued as quickly as possible. Section 334.7(e)(7) is proposed to be added
to remind owners and operators of the need to refer to petroleum UST system
financial assurance requirements, which are contained in Chapter 37, new Subchapter
I. Section 334.7(f) is proposed to be amended by changing "tank" to "UST"
to provide clarification; by changing "commission" to "agency" and "executive
director" to "agency"; by adding the terms "and/or operator" and "or operator"
to reflect the joint and several liability of owners and operators under this
section; and by changing "shall" to "must" to improve readability. Section
334.7(g) is proposed to be deleted as redundant as this requirement is addressed
in Subchapter H of this chapter.
Section 334.8, Certification, is proposed to be amended. The title of the
section is proposed to be amended to add "for Underground Storage Tanks (USTs)
and UST Systems" to provide clarification. Section 334.8(a) is proposed to
be amended to delete "installation" and replace it with "UST construction
activity" to provide clarification. Section 334.8(a)(1) (including subparagraphs
A through C) is proposed to be deleted as language which is no longer necessary
given new rules proposed in §334.8(c). Section 334.8(a)(2) is proposed
to be amended by renumbering as paragraph (1); by adding "or on-site supervisor"
as a clarifying change consistent with the terminology used in Subchapter
I; by deletion of the phrase "After the effective date of this subchapter"
and replacement with the actual calendar date "after September 29, 1989" to
which the original language referred, for clarification and to preserve the
original meaning of the paragraph; by changing "shall" to "must" to improve
readability; and by deleting the sentence "The tank owner or operator shall
be responsible for assuring that the installer has provided the certification
required in this paragraph." to reflect that this rule requirement is only
speaking to the installer. Section 334.8(a)(3) is proposed to be amended by
deleting the word "replacement" and replacing it with the word "construction"
to provide clarification; by changing the reference to "paragraphs (1) and
(2) to "paragraph (1)" to reflect the proposed deletion of the original paragraph
(1) and the renumbering of the original paragraph (2) to paragraph (1); by
changing "shall" to "must" in two places to improve readability; by changing
"commission's" to "agency's" and "commission" to "agency"; by changing "tank"
to "UST" to provide clarification; by adding a phrase to clarify which agency
form should be used and to provide a cross reference to §334.7(e), and
by deleting "(relating to Registration)" in the reference to §334.7 because
this title has already been given once in this section. Section 334.8(b) is
proposed to be amended by deleting the word "responsibility" and replacing
it with "assurance", and by adding "for USTs storing petroleum substance",
to provide clarification and to conform with terminology used in Chapter 37,
new Subchapter I, and by adding "Owners and operators of UST systems regulated
under this section must comply with the requirements of subsection (c) of
this section." to provide clarification and to provide a cross reference to
subsection §334.8(c) of this section, which is the proposed location
for compliance certification rules (which have a financial assurance certification
component). Section 334.8(b)(1) is proposed to be amended by deleting the
original language to reflect the proposed repeal of Subchapter E, Financial
Responsibility, and the proposed creation of Chapter 37, new Subchapter I.
Section 334.8(b)(2) current language, including §334.8(A) and (B), is
proposed to be amended by deleting the original language in its entirety to
reflect the proposed deletion of Subchapter E and the proposed creation of
Chapter 37, new Subchapter I. Proposed new §334.8(c) is proposed to be
titled "UST compliance self-certification requirements" and is proposed to
be added to reflect requirements imposed by HB 2815, which mandated that TNRCC
promulgate rules which establish a compliance self-certification scheme for
the PST program. The new statutory language requires that owners and operators
of USTs annually self-certify that each UST is in compliance with TNRCC "administrative
requirements and technical standards." Upon making that certification for
tanks at a facility, TNRCC will issue a delivery certificate covering those
tanks at that location. The new legislation requires that common carriers
not deliver regulated substances into USTs unless they first observe a valid,
current certificate (see proposed language in §334.5). All of §334.8(c)
is new language that is proposed to fulfill these legislative mandates. The
subparagraphs deal with the applicability of the compliance self-certification
program, outline the phase-in schedule for these requirements as to non-motor
fuel USTs, detail how to make the self-certification (what forms to use, due
dates, etc.) and who must make it, outline how and when delivery certificates
will be issued to UST owners and operators, state which agency regulations
are "administrative requirements and technical standards" in the new program,
give requirements for owners/operators to make delivery certificates available
to common carriers, describe how delivery certificate renewal works, detail
how tanks should be numbered so that TNRCC can meet the requirements of HB
2815 that the new program be tank-specific, outline how the agency will accommodate
new and replacement tank installations, and give the procedures for delivery
certificate revocation. The TNRCC believes that these rules will create reasonable
procedures that, when properly followed, will not interfere with the ability
of owners and operators of compliant USTs to receive deliveries of regulated
substances. It is not the goal of the TNRCC to use the compliance self-certification
program to initiate more formal enforcement actions on minor violations of
the rules concerning "administrative requirements and technical standards."
Existing agency enforcement guidelines, which are available to the public,
will be followed in these matters and under these guidelines, the agency uses
its enforcement discretion to work with the violator to address the minor
violation (as opposed to automatic referral for formal enforcement). The agency
believes that a positive benefit of HB 2815 will be that it acts as an incentive
for owners and operators to bring their facilities into compliance prior to
any agency inspection, such that an enforcement action will be unnecessary.
Proposed §334.8(c)(1) refers to "Applicability." Nothing in HB 2815 acts
to invalidate existing TNRCC exemptions and exclusions, so they are cross-referenced
here. Section 334.8(c)(1)(A)(iii) reflects the statutory provision which limits
applicability of the self-certification requirement to situations where the
regulated substance is delivered by a "common carrier." Proposed §334.8(c)(2)
specifies a phase-in schedule for all regulated substance UST systems except
those storing motor fuel. HB 2815, by its own terms, is applicable to regulated
USTs containing "regulated substances" (a term that is defined in TWC, Subchapter
I). However, the bill's sponsor has stated in writing that the legislative
intent was to have the agency focus on USTs storing "motor fuels" (a term
that is defined in this subchapter), which is a large subset of "regulated
substances." With that in mind, TNRCC has decided to phase-in the self-certification
requirements for USTs that do not contain motor fuels. This will allow the
agency to focus its limited resources as intended by the legislature, while
still complying with the new statutory language. These proposed rules outline
how that phase-in will work. Proposed §334.8(c)(2)(B) highlights that
owners and operators of tanks in the phase-in group must still do a very limited
tank registration update, one time, as described in proposed §334.7(d)(4),
which will implement a uniform tank labeling system across the State of Texas
for use in the TNRCC PST database. Once this tank labeling information has
been collected, the TNRCC will be able to issue delivery certificates for
tanks in the phase-in group, when the time comes, without any delays that
might interrupt product deliveries to those tanks. There is also a great general
benefit to the agency when all tanks are labeled consistently and registered
under a standard labeling scheme (which is then reflected in the agency database,
which is used for a variety of purposes by central office and regional staff).
Agency efficiency is improved, which allows more work to be done at current
staffing levels. Proposed §334.8(c)(3) specifies conditions and limitations;
these proposed rules contain general statements concerning the new compliance
self-certification program. Section 334.8(c)(3)(A) simply underscores that
the new rules do not relieve persons from other regulatory requirements elsewhere
in agency rules. Section 334.8(c)(3)(B) states that a proper and timely submittal
which shows a self-certification of compliance for a tank will result in agency
issuance of a delivery certificate for that tank. Section 334.8(c)(3)(C) makes
the important legal point that agency acceptance of a compliance self-certification
from a UST owner or operator does not constitute any agreement by the agency
that those rules in the certification have in fact been complied with, the
agency maintains its traditional duty to investigate possible violations and
to proceed with enforcement under TWC and Chapter 70, as allowed by law. Section
334.8(c)(3)(D) specifically states which agency rules are considered to be
included in the statutory phrase "administrative requirements and technical
standards." Proposed §334.8(c)(4) outlines the mechanics of making the
compliance self-certification. To reduce paperwork burdens on owners/operators
and agency staff, a new form has been developed that combines the existing
tank registration form (used for many years under existing regulations in §334.7)
and new language concerning compliance self-certification. This new form is
called the "UST registration and self-certification form." The proposed rules
require that the form be completely and accurately filled out, and submitted
in a timely manner. Owners/operators may use one form to cover each of their
facilities. The form must be received by the agency within 60 days of the
effective date of these rules, except that provisions are made for tanks installed
after that date. The rule also states that the compliance self-certification
requirements create a joint and several liability on both the tank owner and
the operator to reflect the legal effect of HB 2815. To insure that tanks
do not exceed a year without being certified, a new certification must be
submitted within 30 days of a change in tank ownership at a facility. Proposed §334.8(c)(5)
addresses requirements related to a proposed UST delivery certificate. These
proposed rules describe the delivery certificate that the agency will issue
upon receipt of a properly completed, and timely submitted, UST registration
and self-certification form. Proposed §334.8(c)(5)(A)(i) and (ii) state
the HB 2815 requirement that owners/operators must make their delivery certificates
available to common carriers prior to accepting deliveries into the tanks,
and that delivery certificates must be made available to agency inspectors
upon request. Section 334.8(c)(5)(A)(iii) is proposed so that inspectors from
the TNRCC and the Texas Department of Agriculture can share information regarding
compliance with state regulations, including whether a delivery certificate
was posted at an investigated facility. Proposed §334.8(c)(5)(B) details
how delivery certificate renewal will be handled by the agency. Each certificate
will be tank specific, and will include on its face an expiration date. For
the initial issuance of certificates under this new program, a schedule has
been devised based on the TNRCC owner identification number (which each owner
of a regulated UST in Texas already has, if he has registered his tanks as
required by law). Under this schedule, no one will receive a certificate that
is good for less than a year. Proposed §334.8(c)(5)(C) details a tank
labeling system that will standardize how regulated USTs are identified in
Texas. Aside from other benefits, this system is necessary for TNRCC to be
able to make delivery certificates tank specific (HB 2815 creates a "per tank",
not "per facility" scheme). A common carrier must be able to tell, by matching
the delivery certificate to the tank labels at the facility itself, which
tanks are covered by that certificate. Under the new legislation, that common
carrier may only deliver to those tanks covered by the certificate (also,
see preamble comments for proposed §334.7(d)(4) and proposed §334.8(c)(2)).
Proposed §334.8(c)(5)(D) details how the agency will provide temporary
delivery authorization for new or replacement UST installations. When the
required construction notification form is sent to the agency stating the
intent to make such an installation, a response letter will go out that will
contain language that will function as "temporary delivery authorization"
for the tank(s) in question, the owner/operator will show this letter to the
common carrier, who will treat it like a regular delivery certificate except
that it has a limited lifetime of 90 days from the date the first delivery
of regulated substance is made into the tank. The proposed rules require the
owner/operator to show the common carrier documentation of when that first
delivery took place, so that he may calculate the validity period for the
temporary delivery authorization. Proposed §334.8(c)(6) addresses delivery
certificate revocation and specifies in detail how the agency may revoke a
delivery certificate. The procedures are taken, to the extent practicable,
from long-standing procedures in Subchapter I.
Section 334.9, Sellers Disclosure, is proposed to be amended by changing
"shall" to "must" to improve readability; by changing "commission's" to "agency's";
by adding ", compliance self-certification," as an additional tank owner obligation
as proposed in §334.8(c) to encompass the requirements of HB 2815; by
adding "for Underground Storage Tanks (USTs) and UST Systems" to reflect the
proposed new titles of §334.7 and §334.6 currently referenced in
this section; and by adding a new reference to §334.8 for completeness.
Section 334.9(1) is proposed to be amended by changing "shall" to "must" to
improve readability and by changing "commission's" to "agency's." Section
334.9(2) is proposed to be amended to improve readability by changing "shall
apply" to "applies" and by deleting "shall" and inserting "applies" in place
of "apply." Section 334.9(3) is proposed to be amended by changing "shall"
to "must" to improve readability. Section 334.9(4) is proposed to be amended
by inserting a reference to §334.9(1) of this section to provide clarification;
by changing Texas "Water" Commission to Texas "Natural Resource Conservation"
Commission to reflect the current name of the agency; by adding ", compliance
self-certification," as an additional tank owner obligation to encompass the
requirements of HB 2815; and by changing "31" to "Title 30" to reflect recodification
of the TAC.
Section 334.10, Reporting and Recordkeeping, is proposed to be amended.
Section 334.10(a) is proposed to be amended by changing "shall" to "must"
to improve readability. Section 334.10(a)(1) is proposed to be amended by
adding "for Underground Storage Tanks (USTs) and UST Systems" to reflect the
proposed new title of the section currently referenced in this paragraph.
Section 334.10(a)(2) is proposed to be amended by changing "313" to "213"
to reflect the recodification of the Edwards Aquifer chapter in the TAC and
be deleting the title of §334.6 because it has already been given once
in this section. Section 334.10(a)(3) is proposed to be amended by adding
"for Underground Storage Tanks (USTs) and UST Systems" to reflect the proposed
new title of the section currently referenced in this paragraph. Section 334.10(a)(4)
is proposed to be amended by replacing "installations and" with "construction
activities," to provide clarification; by deleting the word "responsibility"
and replacing it with "assurance" to provide clarification and to conform
to terminology used in Chapter 37, new Subchapter I, by adding "and compliance
self-certification" to encompass the requirements of HB 2815, and by adding
"for Underground Storage Tanks (USTs) and UST Systems" to reflect the proposed
new title of the section currently referenced in this paragraph. Section 334.10(a)(6)
is proposed to be amended by deleting "§334.54(d)(2)" and replacing it
with "with §334.54" to encompass all alternatives available under rule.
Section 334.10(a)(9)(D) is proposed to be amended by changing "characterization"
to "assessment" to provide clarification and agreement with the terminology
used in Subchapter D, Release Reporting and Corrective Action, and by deleting
"Initial" and changing "Characterization" to "Assessment" to correct the title
of the reference included in this subparagraph. Section 334.10(a)(9)(E) is
proposed to be amended to add "non-aqueous phase liquid" in place on "free
product" to use the preferred terminology and to delete "Free Product" and
add "of Non-Aqueous Phase Liquids" to reflect the proposed new title of the
referenced section, as in Subchapter D. Section 334.10(a)(9)(H) and (I) is
proposed to be amended to delete the title of §334.81 because it has
already been given once in this section. Section 334.10(a)(10) is proposed
to be amended by deleting the word "responsibility" and replacing it with
"assurance" to provide clarification and to conform to terminology used in
Chapter 37, new Subchapter I, by adding a reference to Chapter 37, new Subchapter
I to indicate the location of the notification and reports requirements and
to provide clarification, and by deleting "including:" and replacing it with
"; and" to provide clarification and improve readability. Section 334.10(a)(10)(A)-(E)
is proposed to be deleted because these types of requirements are included
in Chapter 37, new Subchapter I, and a cross reference to these rules is provided
earlier in this paragraph. Section 334.10(a)(11) is proposed to be amended
by deleting "executive director or commission" and replacing it with "agency."
Section 334.10(b)(1)(A) is proposed to be amended by changing "shall be" to
"are" to improve readability. Section 334.10(b)(1)(B) is proposed to be amended
by changing "shall" to "must" in three places to improve readability; and
by deleting "commission" and replacing it with "agency." Section 334.10(b)(1)(C)
is proposed to be amended by adding a reference up front to proposed new §334.10(b)(1)(C)(v)
to provide clarification and encompass the proposed new language. Section
334.10(b)(1)(C)(i) is proposed to be amended by changing "shall" to "must"
to improve readability. Section 334.10(b)(1)(C)(ii) is proposed to be amended
by changing "shall" to "must" to improve readability, and by deleting "commission"
and replacing it with "agency." Section 334.10(b)(1)(C)(iii) is proposed to
be amended by changing "shall" to "must" to improve readability; by deleting
"executive director" and "commission's" and replacing them with "agency's
central office" and "agency's," respectively; and by changing "district" to
"regional" to reflect current agency terminology. Section 334.10(b)(1)(C)(iv)
is proposed to be amended by changing "shall" to "must" to improve readability;
by deletion of the phrase "30 days after the effective date of this chapter"
and replacement with the actual calendar date "October 29, 1989" to which
the original language referred, for clarification and to preserve the original
meaning of the paragraph; and by adding a phrase at the end of the clause
to provide clarification and a cross reference to §334.7(d). Section
334.10(b)(1)(C)(v) is proposed to be added to be consistent with the requirements
of proposed §334.8(c). Section 334.10(b)(1)(D) is proposed to be amended
by deleting the term "executive director" and replacing it with "agency."
Section 334.10(b)(1)(D)(ii) is proposed to be amended by changing "shall"
to "must" to improve readability. Section 334.10(b)(1)(D)(iii) is proposed
to be amended by changing "shall" to "must" in two places to improve readability.
Section 334.10(b)(2) is proposed to be amended by changing "shall" to "must"
to improve readability. Section 334.10(b)(2)(A) is proposed to be amended
by changing "shall" to "must" to improve readability. Section 334.10(b)(2)(A)(i)
is proposed to be amended by changing "§337.7" to "§334.7" to correct
a typographical error in the text. Section 334.10(b)(2)(A)(ii) is proposed
to be amended by deleting the word "responsibility" and replacing it with
"assurance" to provide clarification and to conform to terminology used in
Chapter 37, new Subchapter I. Section 334.10(b)(2)(B) is proposed to be amended
by changing "shall" to "must" to improve readability. Section 334.10(b)(2)(B)(i)
is proposed to be amended by deleting "executive director's" and replacing
it with "the agency's", and by deleting the title of §334.43 because
it has already been cited once in this section. Section 334.10(b)(2)(B)(x)
and (xi) is also proposed to be amended to delete referenced titles because
they have already been given once in this section. Section 334.10(b)(2)(C)
is proposed to be amended by changing "shall" to "must" to improve readability;
by deleting "§334.105" and update it with "Chapter 37, Subchapter I"
and by deleting the title of deleted §334.105 to refer readers to Chapter
37 for financial requirements rather than Chapter 334. Section 334.10(b)(2)(D)
is proposed to be added to be consistent with the requirements of, and provide
a cross reference to, proposed §334.8(c).
Section 334.11, Enforcement is proposed to be repealed in its entirety
because the agency has consolidated all enforcement rules into Chapter 70,
which followed statutory enforcement consolidation into a unified TWC, Chapter
7.
Section 334.12, Other General Provisions, is proposed to be amended. Section
334.12(a)(1) is proposed to be amended by changing "shall" to "does" to improve
readability. Section 334.12(b)(1) is proposed to be amended by deleting the
first sentence, which begins with "Except as otherwise provided", as an unnecessary
and redundant provision; and by deleting "aboveground storage tank to be principally
in charge of any activities or procedures required under this chapter" to
remove legally inappropriate language, given the liability scheme of Chapter
334 as whole. Section 334.12(b)(2) is proposed to be added and existing §334.12(b)(2)
language deleted, to more exactly reflect the legal effect of TWC, §26.3513(m).
Section 334.12(b)(2) is proposed to be amended by renumbering as (3); by adding
new language pursuant to HB 2109, specifically "The liability of certain taxing
units as owners or operators of USTs and ASTs is conditionally and specifically
limited, in accordance with the provisions and conditions of TWC, §26.3516
(relating to Limits on Liability of Taxing Units).." Section 334.12(b)(3)
is proposed to be amended by renumbering to (4) and to be clarified by adding
a direct reference to statute and deleting the existing reference to §334.15.
Section 334.12(b)(4) is proposed to be amended by renumbering to (5) and to
be clarified by adding a direct reference to statute and deleting the existing
reference to §334.16. Section 334.12(c)(1) is proposed to be amended
by deleting "commission or the executive director" and replacing it with "agency"
and by changing "shall" to "must" to improve readability. Section 334.12(c)(1)(B)
is proposed to be amended by changing "commission" to "agency." Section 334.12(c)(2)
is proposed to be amended by changing "commission, its" to "agency's." Section
334.12(c)(3) is proposed to be amended by changing "commission" to "agency."
Section 334.12(c)(4) is proposed to be deleted in its entirety as unnecessary
and redundant because it is duplicative of language in TWC, Chapter 26, Subchapter
I.
Section 334.15, Limits on Liability of Lender, is proposed to be amended.
Section 334.15(c)(1) is proposed to be amended by adding the word "permanently"
in two locations to provide clarification.
Section 334.17, Privatization of Storage Tank Program, is proposed to be
amended by changing "shall" to "will" to improve readability.
Proposed new §334.18, Limits on Liability of Taxing Unit, is proposed
to be added to implement the requirements of HB 2109. Proposed rule language
tracks statutory language.
Subchapter B, Underground Storage Tank Fees
Section 334.21, Fee Assessment, is proposed to be amended. Section §334.21(b)
and (c) is proposed to change "executive director" to "agency." Section §334.21(d)
is proposed to be amended to change "commission" to "agency."
Section 334.22, Failure to Make Payment, is proposed to be amended to change
"executive director" to "agency."
Section 334.23, Disposition of Fees, Interest, and Penalties, is proposed
to be amended to change "executive director" to "agency."
Subchapter C, Technical Standards
Section 334.41, Applicability, is proposed to be amended. Section 334.41(b)(2)
is proposed to be amended to delete "Commission" and add "for Underground
Storage Tanks (USTs) and UST Systems" in the title of the cross reference
to §334.4(b) to reflect the new proposed title. Section 334.41(c) is
proposed to be amended to add "for Underground Storage Tanks (USTs) and UST
Systems" in the title of the cross reference to §334.5(a) to reflect
the new proposed title. Section 334.41(d) is proposed to be amended to replace
"the effective date of this subchapter" with the actual effective date "September
29, 1989" to maintain the intended date.
Section 334.42, General Standards, is proposed to be amended. Section 334.42(a)
is proposed to be amended to delete "for as long as the underground storage
tank system is used to store regulated substances" to provide clarification
that the requirements apply to regulated UST systems regardless of whether
regulated substances are currently being stored. Section 334.42(b) is proposed
to be amended to replace the phrase "are used to contain or store" with "contain,
have contained, or will contain" to add clarification and to improve readability.
Section 334.42(c) is proposed to be amended to delete the reference to §334.11
and to add a reference to Chapter 70 because the agency has consolidated all
enforcement rules into Chapter 70. Section 334.42(f) is proposed to be amended
to add "otherwise stated in" and to delete "or alternative procedure is" to
provide clarification; and to change "executive director" to "agency."
Section 334.43, Variances and Alternative Procedures, is proposed to be
amended. Section 334.43(a) is proposed to be amended by replacing "initiating"
with "proceeding in", by replacing "activity or procedure" with "manner",
by replacing "which is at variance with or which is not specifically authorized
under" with "that differs from," and by inserting "the requirements of" to
clarify the rule requirement. Section 334.43(a) is also proposed to be amended
by changing "commission" to "written agency" to further clarify the rule requirement.
Section 334.43(a) is also proposed to be amended by replacing the word "of"
with the word "in", by adding "form of a", and deleting the phrase "or alternative
procedure" to clarify that a "variance" is the written approval of a request
to be allowed to implement an "alternative procedure" and/or piece of equipment
rather than follow the specific requirement found in this subchapter. Section
334.43(b) is proposed to be amended to change "executive director" in two
places to "agency", to delete "and alternative procedures as relate to" to
clarify that a "variance" is the written approval itself, and to replace "the
provisions of" with "from the requirements in", and to change the word "shall"
to "will" to improve readability. Section 334.43(b) is also proposed to be
amended by deleting "reasonably" to remove an unacceptably vague qualifier,
and to insert "to appropriate agency staff" to emphasize the point that technical
PST program staff must be satisfied that the standard will be met before a
variance can be granted. Section 334.43(b) is also proposed to be amended
by deleting "variance or", and by inserting "and/or equipment" to clarify
that a "variance" is the agency approval of an alternative procedure and/or
equipment. Section 334.43(b) is also proposed to be amended by replacing "a
system meeting" with "the requirement(s) for which", and by replacing "requirements
of this subchapter" with "variance is sought" to clarify the rule requirements
and improve readability. Section 334.43(c) is proposed to be amended to delete
"approval of" and "or alternate procedure" to help clarify that a variance
is the written approval of a request for an alternate procedure and/or equipment.
Section 334.43(c)(1) is proposed to be amended by adding "a requirement in"
and deleting "the requirements of" to improve readability. Section 334.43(c)(1)
is also proposed to be amended by deleting "either" and "or not reasonable"
to remove unacceptably vague language, and to delete the parenthetical "(e.g.
bulk storage tanks, field-constructed tanks, and airport hydrant fuel distribution
systems)" to avoid the impression that a variance would always be issued for
such situations. Section 334.43(d) is proposed to be amended to change "executive
director" to "agency", and to delete "or alternative procedure" to help clarify
that a "variance" is the agency approval of an alternative procedure and/or
equipment. Section 334.43(d)(2)(C) is proposed to be amended by adding "/operator's"
to "owner's" to better reflect that this rule section applies to operators
as well as owners, by making "representatives" singular to clarify the rule
requirement, and by deleting the parenthetical "(e.g., operator, contractor,
or consultant)" to better reflect that this rule section applies to operators
as well as owners. Section 334.43(d)(2)(D) is proposed to be amended by replacing
"variance or" with "the", and adding "and/or equipment", to clarify that a
"variance" is the agency approval of an alternative procedure and/or equipment.
Section 334.43(d)(3) is proposed to be amended by replacing "planning materials"
with "documentation" to clarify the rule requirement, and by deleting "variance
or", and adding "and/or equipment", to clarify that a "variance" is the agency
approval of an alternative procedure and/or equipment. Section 334.43(d)(4)
is proposed to be amended by deleting "sufficient", adding "which demonstrates,"
and "the satisfaction of agency staff, ", and by deleting the word "justify"
to emphasize the point that technical PST program staff must be satisfied
that they have been given sufficient supporting documentation to allow them
to evaluate whether the standard will be met. Section 334.43(d)(4) is also
proposed to be amended by adding "and appropriateness" to clarify that the
reliability of the proposed alternative procedure and/or equipment is not
the only factor in determining whether a variance will be granted, and by
deleting "variance or" and adding "and/or equipment" to clarify that a "variance"
is the agency approval of an alternative procedure and/or equipment. Section
334.43(d)(4)(B) is proposed to be amended to add "and/" to clarify the range
of requests for a variance that the agency may receive. Section 334.43(d)(5)
is proposed to be amended by deleting "variance or," by adding "and/or equipment",
and by replacing "is" with "are" to clarify that a "variance" is the agency
approval of an alternative procedure and/or equipment. Section 334.43(d)(5)
is also proposed to be amended by inserting "requirement for which the variance
is sought" in place of "methods or procedures specified in this subchapter",
by inserting "that requirement" in place of "the methods or procedures specified
in this subchapter", and by inserting "is" in place of "are" to improve rule
clarity and readability. Section 334.43(d)(5) is also proposed to be amended
by deleting "unreasonable or" to remove unacceptably vague language. Section
334.43(d)(6) is proposed to be amended by deleting "adequate," and by adding
"that demonstrates, to the satisfaction of agency staff," to emphasize the
point that technical PST program staff must be satisfied that they have been
given sufficient supporting documentation to allow them to evaluate whether
the standard will be met. Section 334.43(d)(6) is also proposed to be amended
to delete "to reasonably demonstrate" as unacceptably vague, and to insert
"use of" to improve readability. Section 334.43(d)(6) is also proposed to
be amended to delete "variance or," and add the phrase "and/or equipment",
to clarify that a "variance" is the agency approval of an alternative procedure
and/or equipment. Section 334.43(d)(6) is also proposed to be amended by inserting
"be," by deleting "result in an underground storage tank system that is",
by inserting "adhering to," by deleting "a system meeting", by replacing "requirements"
with "requirement(s)" to make singular, by inserting "for which the variance
is sought", and deleting "of this subchapter", to improve clarity and readability.
Section 334.43(e) is proposed to be amended to add "If a variance is granted
by the agency, the owner or operator", to delete "Owners and operators", to
replace "records" with "copies", and to replace "any requests for approval
of any variances or alternative procedures, and documentation of the executive
director's approval of such requests, for the operational life of the UST
system", with "the variance and supporting documentation (including the request
for approval)" to clarify that this recordkeeping requirement is only applicable
if a variance is granted by the agency, as well as to clarify that the owner
and the operator do not have to both keep these records. Section 334.43(f)
is proposed to be added to emphasize the point that the requirement at issue
in this subchapter must be followed until such time as a variance has been
granted which provides for alternative procedures and/or equipment. Section
334.43(g) is proposed to be added to emphasize that, once a variance is granted,
the owner/operator must follow either the terms of that variance or the terms
of the requirement for which the variance was sought.
Section 334.44, Implementation Schedules, is proposed to be amended. Section
334.44(a)(1) is proposed to be amended to replace "are used to store" with
"contain, have contained, or will contain" to clarify that there are agency
regulations which apply from the construction phase through the time an UST
system is taken permanently out of service. Section 334.44(b)(1) is proposed
to be amended to replace "are used to store" with "contain or have contained"
to clarify that there are agency regulations which apply from the construction
phase through the time an UST system is taken permanently out of service.
This new language does not expand the rules being referenced by the implementation
schedules in this section.
Section 334.45, Technical Standards for New Underground Storage Tank Systems,
is proposed to be amended. Section 334.45(b)(1)(A) is proposed to be amended
to delete "one or more of the following standards" because existing clause
(i) is proposed to be incorporated into subparagraph (A), changed to reflect
the new title of that standard, and clause (ii) is proposed to be deleted
as it is an obsolete standard which has not been replaced. Section 334.45(b)(1)(B)(i)
and (ii) is proposed to be amended to add language to reflect the current
names of the referenced standards. Section 334.45(b)(1)(C)(i) and (ii) is
proposed to be amended to reflect the current names of the referenced standards.
Section 334.45(b)(1)(D) is proposed to be amended to add "or as a steel tank
with a bonded fiberglass reinforced polyurethane coating" to reflect new available
technology and to replace a period with a colon at the end. Section 334.45(b)(1)(D)(i)
is proposed to be amended to add "fiberglass-reinforced plastic or fiberglass
reinforced polyurethane" to reflect new available technology, and to replace
a period with a semicolon at the end of the clause. Section 334.45(b)(1)(D)(ii)
is proposed to be amended to delete "applicable" to eliminate ambiguity, and
to replace a period with a semicolon at the end. Section 334.45(b)(1)(D)(iii)(I)
and (II) is proposed to be amended to reflect the current titles of the referenced
standards. Section 334.45(b)(1)(D)(iii)(III) is proposed to be amended by
adding ", or STI, or Underwriters' Laboratories of Canada (ULC) standard which
incorporates the requirements contained in the standards listed in either
subclause (I) or (II) of this clause; and" to allow the use of comparable
standards from other specified standard making organizations, and by deleting
"standard applicable to composite underground storage tanks" because it is
unnecessary language. Section 334.45(b)(1)(D)(iv) is proposed to be amended
to add "utilized in accordance with applicable industry standards" to add
clarification and eliminate ambiguity. Section §334.45(b)(1)(E) and (F)
is proposed to be added to reflect new available technology and provide corresponding
requirements and standards. The existing §334.45(b)(1)(E) is proposed
to be renumbered as §334.45(b)(1)(G) and to be amended by changing "executive
director" to "agency." Section 334.45(c)(1)(A)(i) and (ii) is proposed to
be amended to reflect the current titles of the referenced standards. Section
334.45(c)(1)(B)(iv) is proposed to be amended to reflect the current name
of the standard and its current title. Section 334.45(c)(1)(C) is proposed
to be added to reflect available technology and provide corresponding requirements
and standards. The existing §334.45(c)(1)(C) is proposed to be renumbered
as §334.45(c)(1)(D) and to be amended by changing "executive director"
to "agency." Section 334.45(c)(3)(A) is proposed to be amended to provide
clarification and eliminate ambiguity by changing the parenthetical "(or approved
equivalent)" to specify allowable alternative listing organizations which
the agency will accept. Section 334.45(c)(3)(B) is proposed to be amended
to provide clarification and eliminate ambiguity by changing the parenthetical
"(or approved equivalent)" to specify allowable alternative listing organizations
which the agency will accept; and to add terminology applicable to inherently
flexible piping to reflect the current applicable industry standard. Section
334.45(c)(3)(C) is proposed to be amended to delete "a cathodic protection
system" and replace it with "corrosion protection" to provide clarity, and
to delete the reference to §334.49(c) and replace it with a reference
to §334.49 to allow the application of all applicable methods of corrosion
protection within the section. A new subsection §334.45(c)(3)(D) is proposed
to be added to ensure compliance with the requirements of applicable listings
provided by acceptable listing organizations. Section 334.45(d)(1)(B) is proposed
to be amended by changing "313" to "213" to reflect the recodification of
this chapter in the TAC. Section 334.45(d)(1)(C) is proposed to be amended
by changing the phrase "commission or the executive director" to "agency."
Section 334.45(d)(3)(A)(iii)(I) is proposed to be amended to reflect the current
title of the referenced UL Standard 1316 and to delete the reference to ASTM
Standard D 4021, an obsolete standard which has not been replaced. Section
334.45(d)(3)(A)(iii)(II) is proposed to be amended to reflect the current
title of the referenced standard. Section 334.45(d)(3)(A)(iii)(III) is proposed
to be amended by changing "naturally" to "nationally" to correct a previous
error, and by changing "executive director" to "agency."
Section 334.46, Installation Standards for New Underground Storage Tank
Systems, is proposed to be amended. Section 334.46(a)(1)(D) is proposed to
be amended to change "executive director" to "agency." Section 334.46(b) is
proposed to be amended to change "executive director" to "agency." Section
334.46(d)(4)(B) is proposed to be deleted to as an unnecessary requirement
because it is no longer considered technically necessary to perform this test
to be protective. The subsequent §334.46(d)(4)(C) is proposed to be renumbered
to §334.46(d)(4)(B) and amended to add the word "underground" for clarification.
Section 334.46(g)(2) is proposed to be amended to update the rule and statutory
references relating to water well drillers and to start a new sentence after
these changes by capitalizing the word "Any" to improve readability. Section
334.46(g)(3)(A) is proposed to be amended to update the rule and statutory
references relating to Water Well Drillers and to start a new sentence after
these changes by capitalizing the word "Any" to improve readability. Section
334.46(g)(3)(B)(iv) is proposed to be amended to update the reference relating
to the Water Well Drillers rule. Section 334.46(h)(1)(A)(iv) is proposed to
be amended to change "executive director" to "agency." Section 334.46(h)(1)(B)
is proposed to be amended to change "commission" to "agency." Section 334.46(h)(2)
is proposed to be amended to delete "owner and the" as unnecessary due to
compliance self-certification requirements imposed on owners by HB 2815; to
change "commission's" to "agency's"; to delete the term "tank registration"
to reflect proposed rule changes in Chapter 334, Subchapter A, which make
the term "tank registration form" an outdated term because the agency has
created a new form that will serve for both tank registration and compliance
self-certification proposes; and to add the words "for Underground Storage
Tanks (USTs) and UST Systems" to reflect the new proposed title of §334.8.
Section 334.46(i)(2)(A)(iii) is proposed to be amended to change "commission"
to "agency." Section 334.46(i)(2)(A)(iii)(I) is proposed to be amended to
add "for Underground Storage Tanks (USTs) and UST Systems" to reflect the
new proposed title of the referenced section.
Section 334.47, Technical Standards for Existing Underground Storage Tank
Systems, is proposed to be amended. Section 334.47(b)(1)(A)(i) is proposed
to be amended to include the proposed addition of a new leak detection method
in a new paragraph of §334.50(d). Section 334.47(b)(1)(A)(ii) is proposed
to be amended to improve clarity by adding a sentence at the end specifying
what constitutes an appropriate integrity assessment for certain tanks. Section
334.47(b)(1)(A)(v) is proposed to be amended to change "executive director"
to "agency." Section 334.47(d)(2)(A)(iii) is proposed to be amended to change
"commission" to "agency." Section 334.47(d)(2)(A)(iii)(I) is proposed to be
amended to add the words "for Underground Storage Tanks (USTs) and UST Systems"
to reflect the newly proposed title of §334.7. Section 334.47(d)(2)(A)(iii)(II)
is proposed to be amended to add "for Underground Storage Tanks (USTs) and
UST Systems" to reflect the newly proposed title of §334.8. Section 334.47(d)(2)(B)
is proposed to be amended to add "for Underground Storage Tanks (USTs) and
UST Systems" to reflect the newly proposed title of §334.6.
Section 334.48, General Operating and Management Requirements, is proposed
to be amended. Section 334.48(c) is proposed to be amended to insert " §334.50(d)(1)(B)
of this title" in place of "a code or standard of practice developed by a
nationally recognized association or independent testing laboratory" to have
a specific requirement.
Section 334.49, Corrosion Protection, is proposed to be amended. Section
334.49(a)(1) and (2) is proposed to be amended to add "underground metal"
to add clarification on which components require corrosion protection and
to delete the last phrase "for as long as the underground storage tanks system
is used to store regulated substances" to clarify that there are agency regulations
regarding corrosion protection which apply from the time of installation through
the time an UST system is taken permanently out of service. Section 334.49(a)(3)
is proposed to be amended to change "executive director" to "agency." Section
334.49(a)(4) is proposed to be amended to add "metal" to clarify which components
require corrosion protect, to delete "necessarily" as unnecessary language,
and to add "and also to other underground metal components associated with
an UST system, including but not limited to: " for greater clarity. Section
334.49(a)(5) is proposed to be amended to change "the effective date of this
subchapter" to "September 29, 1989," to maintain the originally intended date.
Section 334.49(a)(6) is proposed to be added to provide clarification it is
the most recent version of a listed standard that must be met, and new §334.49(a)(7)
is proposed to be added to provide a cross reference to requirements for placing
a tank temporarily out of service. Section 334.49(b)(4) is proposed to be
amended to add "or as a steel tank with a bonded fiberglass reinforced polyurethane
coating, as a steel tank with a bonded polyurethane external coating, or as
a steel tank completely contained within a nonmetallic external tank jacket"
to list other acceptable factory-constructed tanks proposed to be added §334.45(b),
to expand the §334.45(b)(1) references to include the additional acceptable
factory-constructed tanks, and to add "(as applicable)" for greater clarity.
Section 334.49(b)(7) is proposed to be added to provide an additional allowable
alternative to other rule requirements for corrosion protection or the upgrading
of an existing corrosion protection system. Section 334.49(d)(1)(A)(iii) is
proposed to be amended to change "executive director" to "agency." Section
334.49(d)(2) is proposed to be amended to delete the first "or" to add more
options to the series, to add "a steel tank with a bonded fiberglass reinforced
polyurethane coating, or a steel tank with a bonded polyurethane coating"
to reflect proposed dual-protected tank additions in §334.45(b), to add
another subparagraph to the §334.45(b)(1) reference that contains the
proposed tank additions, to add "as applicable" after the reference for greater
clarity, and to make "systems" plural because more than one cathodic protection
system can be installed in a tank.
Section 334.50, Release Detection, is proposed to be amended. Section 334.50(a)(1)(A)
is proposed to be amended to add "underground" for greater clarity and to
be more specific. Section 334.50(a)(1)(B) is proposed to be amended by deleting
"and" to add to the series; and by adding", utilized and interpreted (as applicable),"
"and/or methodology provider's," and "consistent with the other requirements
of this section" for greater clarification. Section 334.50(a)(1)(C) is proposed
to be amended by replacing "installer" with "methodology provider/vendor"
to be more specific and by adding "as verified by third party evaluation conducted
by a qualified independent testing organization, using applicable United States
Environmental Protection Agency protocol," to assure better compliance. Section
334.50(a)(1)(C)(i) is proposed to be amended by adding "including the summary
portion of the independent third party evaluation" by adding "by the owner
and/or operator" to be more specific, and by adding ", or methodology provider,"
to clarify agency expectations with regard to performance claims. Section
334.50(a)(1)(C)(ii)(III) is proposed to be amended to remove "and" to add
more subclauses to list. Section 334.50(a)(1)(C)(ii)(IV) is proposed to be
amended to change its period to a semicolon for the same reason. Section 334.50(a)(1)(C)(ii)(V)
is proposed to add an acceptable new technology on electronic leak monitoring
systems for piping; and new §334.50(a)(1)(C)(ii)(VI) is proposed to add
a new method of statistical inventory reconciliation. Section 334.50(a)(5)
is proposed to be amended to add "for Underground Storage Tanks and UST Systems"
in three places for consistency with the new proposed titles of §§334.6,
334.7, and 334.8. Section 334.50(a)(6) is proposed to be amended to add a
cross reference to §334.42(d). Section 334.50(a)(7) is proposed to be
added to provide a cross reference to §334.54(c). Section 334.50(b)(1)(A)
is proposed to be amended to replace "for releases" with "in a manner which
will detect a release" to be more specific about the manner of monitoring
and to add §334.50(d)(10) to include a proposed new leak detection method.
Section 334.50(b)(1)(C) is proposed to be amended to change the nominal capacity
of "550" gallons to "1,000" gallons to be consistent with a protocol established
by EPA and which has been allowed by this agency in the variance process.
Section 334.50(b)(2) is proposed to be amended to replace "designed to" with
"which will" to be more specific and to delete "and" because it is unnecessary.
Section 334.50(b)(2)(A)(i)(I) is proposed to be amended to replace "which
equals or exceeds" with "of" to provide clarification and to improve readability.
Section 334.50(b)(2)(A)(i)(II) is proposed to be amended to insert the word
"or" between the two remaining alternatives because of proposed deletion of
the third alternative, and to delete "or by emitting or triggering audible
and visible alarms" because over time the agency has concluded that this alternative
is often ineffective because it relies on human action rather than automatic
mechanical processes. Under this proposal, owners/operators can voluntarily
use an alarm in conjunction with either of the remaining options listed in
the rule, but may not use it alone. Section 334.50(b)(2)(A)(ii)(I) is proposed
to be amended to delete "which equals or exceeds a rate" to improve readability.
Section 334.50(b)(2)(A)(ii)(II) is proposed to be amended to include the proposed
new leak detection method in §334.50(d)(10). Section 334.50(b)(2)(A)(ii)(III)
is proposed to be added to reflect a new acceptable electronic leak monitoring
technology. Section 334.50(b)(2)(B)(i)(I) is proposed to be amended to replace
"piping" with "positive or negative pressure" to be more specific on the tightness
test, to add "applicable to underground product piping and" to assure that
the test is applicable to underground product piping, to delete "which equals
or exceeds a rate" for better readability; to replace "gallon" with "gallons"
to be consistent with commonly used terminology; and to delete "when the piping
pressure is at 150% of normal operating pressure" to be consistent with the
previous change that allows a positive or negative pressure tightness test.
Section 334.50(b)(2)(B)(i)(II) is proposed to be amended to include the new
leak detection method proposed at §334.50(d)(10). Section 334.50(b)(2)(B)(ii)(II)
is proposed to be amended by adding "all" to clarify the requirement. Section
334.50(b)(2)(B)(ii)(IV) is proposed to be amended by adding "aboveground,"
to be more specific about the location of the check valve. Section 334.50(b)(2)(B)(ii)(V)
is proposed to be amended by deleting "A method is incorporated into the system
design that will allow" and by adding language that specifies acceptable methods
of verifying subclauses (I)-(IV) for greater clarity. Section 334.50(c)(3)(B)
is proposed to be amended to include a new leak detection method proposed
in §334.50(d)(10). Section 334.50(d) is proposed to be amended by replacing
"(1)-(9)" with "(2)-(10)" to include the new leak detection method proposed
in §334.50(d)(10) of this subsection and to clarify that the option §334.50(d)(1)
of this section is no longer an allowable method of release detection and
to replace "(5)-(9)" with "(5)-(10)" to include the new leak detection method
proposed in paragraph 10 of this subsection. Section 334.50(d)(1)(A)(iii)
is proposed to be amended to delete "which equals or exceeds a rate" and to
replace "gallon" with "gallons" to improve readability. Section 334.50(d)(1)(B)(ii)
is proposed to be amended to replace "which equals or exceeds" with "as small
as" to add clarity. Section 334.50(d)(1)(B)(iv) is proposed to be deleted
as an alternative which is no longer applicable, due to proposed changes in
allowable manual tank gauging procedures in §334.50(d)(2) and due to
the existing rule requirement at §334.50(d)(1) disallowing the use of
a combination of tank tightness testing and inventory control as a method
of release detection after December 22, 1998. Section 334.50(d)(2)(A) is proposed
to be amended to change nominal capacity of "550" gallons to "1,000" gallons
to be consistent with a protocol established by EPA and with variances which
have been allowed by this agency in the variance process. Section 334.50(d)(2)(B)
is proposed to be deleted to reflect the existing rule requirement at §334.50(d)(1)
disallowing the use of a combination of tank tightness testing and inventory
control as a method of release detection after December 22, 1998. Section
334.50(d)(2)(C) is proposed to be renumbered to §334.50(d)(2)(B) due
to the previous deletion and to be amended to change the nominal capacity
of "2,000" gallons to "1,000" gallons to be consistent with a protocol established
by EPA and which has been allowed by this agency in the variance process.
Section 334.50(d)(2)(D) is proposed to be renumbered to §334.50(d)(2)(C)
due to the previous deletion. Section 334.50(d)(2)(C)(i)(II) is proposed to
be amended by deleting the phrase "of at least 36 hours" and by adding the
following clarifying language: "The duration of the gauging period is dependant
upon tank volume and diameter, as specified in clause (v) of this subsection."
Section 334.50(d)(2)(C)(v)(I)-(III) is proposed to be amended to add the minimum
gaging period durations for various tank diameters and volumes reflected in
a protocol established by EPA and which has been allowed by this agency in
the variance process. Section 334.50(d)(4)(A)(ii)(II) and (B)(iii) is proposed
to be amended by deleting "which equals or exceeds a rate" to improve readability.
Section 334.50(d)(6)(D) is proposed to be added to include a requirement that
background contamination should not interfere with monitoring for a release
from an UST system into groundwater (a similar requirement exists in §334.50(d)(5)(D)
of this section, regarding vapor monitoring). Section 334.50(d)(9) is proposed
to be added to include a new leak detection technology allowed by this agency.
Existing §334.50(d)(9) is proposed to be renumbered to §334.50(d)(10)
due to the previous addition and to be amended to change "executive director"
to "agency." Section 334.50(e)(2)(B) is proposed to be amended by adding ",
verified," to include another method of confirming a claim and by replacing
"or installer" with ", methodology provider/vendor or independent third party
evaluator" for greater clarity.
Section 334.51, Spill and Overfill Prevention and Control, is proposed
to be amended. Section 334.51(a)(5) is proposed to be amended to add a cross
reference to §334.42(d). Section 334.51(b)(4)(A)(ii) is proposed to be
amended to change "executive director" to "agency." Section 334.51(b)(4)(A)(iii)
is proposed to be amended to change "executive director" to "agency" and to
delete "or unreasonable" as redundant to "impracticable."
Section 334.52, Underground Storage Tank System Repairs and Relining, is
proposed to be amended. Section 334.52(b)(5)(C) is proposed to be amended
to change "executive director" to "agency." Section 334.52(d)(2)(A)(iii) is
proposed to be amended to change "commission" to "agency."
Section 334.54, Temporary Removal from Service, is proposed to be amended.
Section 334.54(b) is proposed to be amended by deleting "Beginning no later
than the date on which any UST system has been out of service for a continuous
period of three months," and capitalizing "Regardless" at the beginning of
the first sentence, to remove language which is no longer applicable. Section
334.54(b)(2) is proposed to be amended to add "tank access points (e.g., fill
risers, automatic tank gauging risers, Stage I vapor recovery risers)" to
provide clarification and to provide additional assurance that temporarily
out of service tanks are properly secured. Section 334.54(c)(2) is proposed
to be amended to change the referenced subsection for what constitutes an
empty system from (e) (that is also proposed to be renumbered) to subsection
(d). Section 334.54(c)(3) is proposed to be amended to delete outdated and
unnecessary language, given the passage of the final deadline for all UST
upgrades, and to specify procedures and requirements for returning "protected
and empty" and "protected and monitored" UST systems to service. Section 334.54(d)
is proposed to be deleted as outdated and unnecessary language, given the
passage of the final deadline for all UST upgrades; and the remaining subsections
are proposed to renumbered due to the deletion. Section 334.54(f)(2) is proposed
to be amended to add "for Underground Storage Tanks (USTs) and UST Systems"
to the title of reference §334.7 to reflect the newly proposed title;
and paragraph (3) is proposed to be amended to change "commission's" to "agency's."
Section 334.55, Permanent Removal from Service, is proposed to be amended.
Section 334.55(a)(1) is proposed to be amended to change "executive director"
to "agency" and to add the words "for Underground Storage Tanks (USTs) and
UST Systems" to the title of referenced §334.6 to reflect its newly proposed
title. Section 334.55(a)(6)(A) is proposed to be amended to change "executive
director" to "agency" and to add the words "for Underground Storage Tanks
(USTs) and UST Systems" to the title of referenced §334.6 to be consistent
with its newly proposed title. Section 334.55(6)(B)(i) is proposed to be amended
to change "operating" to "operated" to improve the grammar and to add paragraph
"(10)" to the reference to §334.50(d) to include the proposed addition
of a new leak detection method. Section 334.55(6)(D)(i) and (ii) is proposed
to be amended to change "executive director" to "agency"; and clause (ii)
is also proposed to be amended to add "for Underground Storage Tanks (USTs)
and UST Systems" to the title of referenced §334.7 to reflect the newly
proposed title. Section 334.55(a)(9) is proposed to be amended to change "executive
director" to "agency." Section 334.55(b)(2) is proposed to be amended to change
"commission" to "agency." Section 334.55(c)(2)(A) is proposed to be amended
to change "executive director" to "agency." Section 334.55(e)(1) is proposed
to be amended to delete the word "comprehensive" to distinguish this requirement
from the site assessment required under Chapter 334, Subchapter D. Section
334.55(e)(1)(B) is proposed to be deleted to reflect the proposed deletion
of §334.54(d) and original subparagraphs (C) and (D) renumbered due to
this deletion. Section 334.55(e)(1)(C) is also proposed to be amended to change
"executive director" to "agency" and to delete the word "comprehensive" as
an unnecessary term; and §334.55(e)(1)(D) is proposed to change "executive
director or the commission" to "agency." Section 334.55(e)(2) is proposed
to be amended by adding language requiring supervision of the site assessment
by qualified licensed or registered personnel to fully inform the reader of
this current requirement related to site assessments. Section 334.55(e)(5)(C)
is proposed to be amended to change "executive director" to "agency." Section
334.55(e)(5)(D) is proposed to be added to assure that suspected or confirmed
releases are properly reported, investigated and remediated, in accordance
with the release reporting and corrective action requirements of Subchapter
D.
Section 334.56, Exempt or Excluded Status, is proposed to be added to specify
the procedures necessary to change a regulated UST system's status from "regulated"
to "exempt" or "excluded." Existing regulations do not adequately provide
procedures for owners/operators to follow in these situations.
Subchapter D, Release Reporting and Corrective Action:
The amendments in Subchapter D are to update its risk assessment terminology
and to do "limited" regulatory reform amendments to streamline the rules and
to improve clarity and readability.
Section 334.71, Applicability, is proposed to be amended to change a deadline
year from 2001 to 2003 to conform with 30 TAC Chapter 350, Texas Risk Reduction
Program, and to replace "Free Product Removal" with "Removal of Non-Aqueous
Phase Liquids" to use a more standard risk assessment term.
Section 334.72, Reporting of Suspected Releases, is proposed to be amended.
At the beginning of the section, "aboveground storage tank (AST) and" is proposed
to be added to clarify that ASTs are also subject to this rule requirement;
"Austin central office or the" and "regional" are proposed to replace deleted
"district" and "or the Austin central office" to update this rule language
and make it more readable; and "agency" is proposed to replace "commission."
Section 334.72(1) is proposed to be amended to include "AST or" to clarify
that aboveground storage tanks are also subject to this rule requirement and
to replace "free product" with "non-aqueous phase liquids (NAPL)" to use more
standard risk assessment terminology. Section 334.72(2) is proposed to be
amended to replace "and" with "or" to clarify the rule requirement and to
adhere to the statutory language in HB 2815's, amended TWC, §26.346,
and to add "AST or UST" to show that this rule requirements is also applicable
to regulated ASTs. Section 334.72(3)(A) is proposed to be amended to add "or
the monitoring procedure is found to be ineffective, and is modified," to
add additional methods of correcting monitoring equipment errors.
Section 334.73, Investigation Due to Off-Site Impacts, is proposed to be
amended to replace "executive director" with "agency", to add "aboveground
storage tank (AST) or underground storage tank (UST)" and "AST or" to clarify
that regulated ASTs are also subject to these rule requirements, to replace
"free product" with "Non-Aqueous Phase Liquids (NAPLs)" to use more standard
risk assessment terminology, to replace "the commission" with "agency staff",
and to replace "its" with "the agency's" for consistency with the previous
change.
Section 334.74, Release Investigation and Confirmation Steps, is proposed
to be amended. At the beginning of the section, "Initial Site Characterization"
is proposed to be replaced with "Site Assessment" and "Free Product Removal"
replaced with "Removal of Non-Aqueous Phase Liquids" to use more standard
risk assessment terminology, "and" changed to "or" to clarify the rule requirement
and adhere to the statutory wording in HB 2815's, amended TWC, §26.346,
and "executive director" to be replaced with the term "agency." Section 334.74(1)(A)
is proposed to be amended to insert "or" to accommodate the deletion of ",
or upgrade" because the deadline for upgrades is past, to include "aboveground
storage tank (AST) or underground storage tank (UST)" to clarify that regulated
ASTs are also subject to this rule requirement. Section 334.74(2) is proposed
to be amended to add "AST or" to indicate that regulated ASTs are also subject
to this rule requirement. Section 334.74(2)(A) and (B) is proposed to be amended
to replace "for the excavation zone" with "from an excavated area" to clarify
the language and to add "or other area(s) of the AST" to clarify that this
rule requirement also applies to regulated aboveground storage tanks. Section
334.74(3) is proposed to be amended to replace "executive director" with "agency."
Section 334.75, Reporting and Cleanup of Surface Spills and Overfills,
is proposed to be amended. Section 334.75(a) is proposed to be amended to
add "aboveground storage tanks (AST) and underground storage tank (UST)" to
clarify that regulated ASTs are also subject to this rule requirement, to
add "the spill or overfill" to improve the clarity of what is being reported,
to replace "commission" with "agency", and to replace "Initial Site Characterization"
with "Site Assessment"and to replace "Free Product Removal" with "Removal
of Non-Aqueous Phase Liquids" to use more standard risk assessment terminology.
Section 334.75(a)(1) is proposed to be amended to add "any" to help clarify
that the requirements apply to any spill from a regulated UST or AST and to
add "substance from an UST or any spill or overfill of petroleum product from
an AST" to clarify that this rule requirement also applies to spills of petroleum
product from ASTs; §334.75(a)(2) is proposed to be amended to add "any"
to help clarify that the requirements apply to any spill from a regulated
UST storing a hazardous substance and to add "from an UST" to indicate that
only hazardous substance spills from an UST are regulated, and to add "the
Comprehensive Environmental Response, Compensation, and Liability Act" to
spell out the acronym "CERCLA." Section 334.75(b) is proposed to be amended
to delete "of UST systems" to remove the indication that the requirement only
applies to USTs and to add "substance from an UST or any petroleum product
from an AST" to indicate that this requirement applies to both regulated USTs
and ASTs, and to break the first sentence into two sentences and insert at
the beginning of the new second sentence "Owners or operators of USTs must
contain and immediately clean up" to clarify that the hazardous substance
part of the requirement only applies to USTs, and to replace "executive director"
with "agency."
Section 334.76, Initial Response to Releases, is proposed to be amended.
At the beginning of the section, "aboveground storage tank (AST) or underground
storage tank (UST)" is proposed to be added to clarify that ASTs are also
subject to this rule requirement. Section 334.76(1) is proposed to be amended
to replace "executive director" with "agency" and to insert term "completed"
and "call, facsimile transmission" to clarify electronic reporting requirements.
Section 334.76(2) is proposed to be amended to include "AST or" to clarify
that ASTs are also subject to this rule requirement.
Section 334.77, Initial Abatement Measures and Site Check, is proposed
to be amended. Section 334.77(a) is proposed to be amended to replace "executive
director" with "agency." Section 334.77(a)(1) is proposed to be amended to
include "aboveground storage tank (AST) or underground storage tank (UST)"
to clarify that regulated ASTs are also subject to this rule requirement; §334.77(a)(3)
and (5) is proposed to be amended to add "AST or" to clarify that regulated
ASTs are also subject to these rule requirements; and §334.77(a)(6) is
proposed to be amended to replace the first "free product" with "Non-Aqueous
Phase Liquids (NAPL)", to replace the second "free product" with "NAPL," and
to replace "Free Product Removal" with "Removal of Non-Aqueous Phase Liquids"
to use more standard risk assessment terminology. Section 334.77(b) is proposed
to be amended to replace "executive director" with "agency."
Section 334.78, Site Assessment, is proposed to be amended. Section 334.78(a)
is proposed to be amended to replace "executive director" with "agency." Section
334.78(a)(4) is proposed to be amended to replace "free product" with "Non-Aqueous
Phase Liquids (NAPLs)" and to replace "Free Product Removal" with "Removal
of Non-Aqueous Phase Liquids (NAPLs)" to use more standard risk assessment
terminology and §334.78(a)(5), (6), and (9) is proposed to be amended
to replace "executive director" with "agency." Section 334.78(b) is proposed
to be amended to replace "executive director" with "agency" and to add "of
an aboveground storage tank (AST) or underground storage tank (UST)" to clarify
that regulated ASTs are also subject to this rule requirement. Section 334.78(b)(1),
(2), and (4)-(6) is proposed to be amended to replace "executive director"
with "agency" and in §334.78(6) to replace "commission" with "agency."
Section 334.78(c) is proposed to be amended to replace "executive director"
with "agency." Section 334.78(d) is proposed to be amended to replace "executive
director without prejudice" with "agency."
Section 334.79, Free Product Removal, is proposed to be amended. The section
title is proposed to be amended to "Removal of Non-Aqueous Phase Liquids (NAPLs)"
to use more standard risk assessment terminology. The beginning of the section
is proposed to be amended to replace the first "free product" with "Non-Aqueous
Phase Liquids (NAPLs)" and to replace the second "free product" with "NAPLs"
to use more standard risk assessment terminology and to replace "executive
director" with "agency." Section 334.79(1) is proposed to be amended to replace
"free product" with "NAPL" to use a more standard risk assessment terminology.
Section 334.79(2) is proposed to be amended to replace "use abatement of free
product migration" with "abate the migration of NAPLs" and to replace "free
product removal system" with "NAPL recovery system" to use more standard risk
assessment terminology. Section 334.79(4) is proposed to be amended to replace
"executive director" with "agency" and to replace "free product removal" with
"product recovery" to use more standard risk assessment terminology. Section
334.79(4)(A)-(C) and (G) is proposed to be amended to replace "free product"
with "NAPL" to use more standard risk assessment terminology; and §334.79(4)(H)
is proposed to be amended to replace "executive director" with "agency."
Section 334.80, Investigation for Soil and Groundwater Cleanup, is proposed
to be amended. Section 334.80(a) is proposed to be amended to replace "In
order to" with "To" to eliminate unnecessary words. Section 334.80(a)(2) is
proposed to be amended to replace "free product" with "Non-Aqueous Phase Liquid"
and to replace "Free Product Removal" with "Removal of Non-Aqueous Phase Liquids
(NAPLs)" to use more standard risk assessment terminology; §334.80(a)(3)
is proposed to be amended to replace "Initial Site Characterization" with
"Site Assessment" and to replace "Free Product Removal" with "Removal of Non-Aqueous
Phase Liquids (NAPLs)" to use more standard risk assessment terminology; and §334.80(a)(4)
is proposed to be amended to replace "executive director" with "agency." Section
334.80(b) is also proposed to be amended to replace "executive director" with
"agency."
Section 334.81, Corrective Action Plan, is proposed to be amended. Section
334.81(a) is proposed to be amended to replace "Initial Site Characterization"
with "Site Assessment" to use more standard risk assessment terminology and
to replace "executive director" with "agency." Section 334.81(b) is proposed
to be amended to replace "executive director" with "agency", to replace "using
risk-based corrective action to establish target cleanup levels" with "§334.203
of this title (relating to Risk Based Criteria for Establishing Target Concentrations)"
to make the rule requirement more specific, and to add the words "to achieve"
to clarify the rule requirement. Section 334.81(b)(8) is proposed to be amended
to replace "a remedial progress monitoring plan" with "operation, monitoring,
and performance plan; and" to update the type of plan required; §334.81(b)(9)
is proposed to be deleted because an operation and maintenance plan is now
part of the operation, monitoring, and performance plan mentioned in the preceding
amendment; and §334.81(b)(10) is proposed to be renumbered to account
for the preceding deletion. Section 334.81(c) is proposed to be amended to
replace "executive director" with "agency." Section 334.81(d) is proposed
to be amended to replace "executive director" and "executive director without
prejudice" with "agency" to eliminate any connotation that this agency would
ever return documents with prejudice. Section 334.81(e) is proposed to be
amended to replace "executive director" with "agency", to replace "modifications"
with "any revisions" and "made" with "as requested" to clarify the rule requirement.
Section 334.81(f)(1)-(3) is proposed to be amended to replace "executive director"
with "agency" and §334.81(f)(4) is proposed to be amended to replace
"commission" with "agency." Section 334.81(g) is proposed to be amended to
replace "In order to" with "To" to eliminate unnecessary words and to replace
"executive director" with "agency." Section 334.81(h) is proposed to be amended
to replace "shall" with "must." Section 334.81(i) is proposed to be amended
to replace "commission" with "agency" and to replace "shall" with "will."
Section 334.82, Public Participation, is proposed to be amended. Section
334.82(a) is proposed to be amended to delete "a" and "plan" to simplify the
wording and to replace "executive director" with "agency." Section 334.82(c)
is proposed to be amended to replace "that complies with subsection (a) of
this section" with "to affected parties" to eliminate an unnecessary reference
back to §334.82(a) and to insert "action" to complete the plan title.
Section 334.83, Emergency Orders, is proposed to be amended to add "aboveground
storage tank or" to clarify that regulated ASTs are also subject to this rule
requirement.
Section 334.84, Corrective Action by the Commission, is proposed to be
amended. The section title is proposed to be amended to "Corrective Action
by the Agency." Section 334.84(a) is proposed to be amended to replace "commission"
with "agency." Section 334.84(a)(1) is proposed to be amended to add "aboveground
storage tank (AST) or" to show that regulated ASTs are also subject to this
rule requirement and to add the acronym "UST" after "underground storage tank"
so it can be used in subsequent paragraphs; §334.84(a)(2) is proposed
to be amended to replace "underground storage tank" with "AST or UST" to indicate
that this requirement is applicable to both ASTs and USTs; and §334.84(a)(3)
is proposed to be amended to replace "underground storage tank" with "AST
or UST" to indicate that this requirement is applicable to both ASTs and USTs
and to replace "executive director" with "agency." Section 334.84(b) is proposed
to be amended to replace "commission" with "agency" and to replace "subchapter"
with "chapter" for accuracy and consistency.
Section 334.85, Management of Wastes, is proposed to be amended to add
"aboveground or" to clarify that this rule requirement is also applicable
to regulated ASTs.
Subchapter E, Financial Responsibility:
Subchapter E is proposed to be repealed in its entirety so that UST financial
assurance requirements can be concurrently moved to Chapter 37, new Subchapter
I, with some changes. Chapter 37 is intended to consolidate all of the agency's
financial assurance requirements (including mechanisms, wording of the mechanisms,
and program specific subchapters) into one rule chapters.
Subchapter F, Aboveground Storage Tanks:
The Subchapter F amendments are to incorporate changes to the petroleum
storage tank program as a result of HB 2815 and to reflect changes similar
to those made in Subchapter A to implement that bill. Amendments are also
proposed to update, clarify, and streamline the rules.
Section 334.121, Purpose and Applicability for ASTs, is proposed to be
amended. The title is proposed to be amended to add "Aboveground Storage Tanks
(ASTs)" to reflect the title name change. Section 334.121(a) is proposed to
be amended to replace "aboveground storage tanks" with "ASTs" because the
acronym has already been defined. Section 334.121(b)(1) is proposed to be
amended to insert "AST" in place of "aboveground storage tank" because this
acronym has already been defined. Section 334.121(b)(1)(A), (C), and (D) is
proposed to be amended to update their references titles to the titles proposed
in this rulemaking; and §334.121(b)(1)(B) is proposed to change its reference
from "§334.122" to "§334.2" because the definition of "petroleum
product" is proposed to be moved to Subchapter A because it is used in more
than one subchapter. Section 334.121(b)(2) is proposed to be amended to replace
"shall apply" and "aboveground storage tanks" with "are applicable" and "ASTs,"
respectively, to improve readability; §334.121(b)(3) is proposed to be
amended to delete "shall" for better readability and to replace "aboveground
storage tanks" with "ASTs" because this acronym has been previously defined; §334.121(b)(4)
is proposed to be amended to replace "shall be" with "are" for better readability
and to replace "aboveground storage tank" with "AST" because this acronym
has been previously defined; §334.121(b)(5) is proposed to be amended
to replace "aboveground storage tank" with "AST" to improve readability; and §334.121(b)(6)
is proposed to delete "statutory" because it is unnecessary, to delete the
title from the reference to §334.123 because it has already been cited
once in this section, to replace "aboveground storage tank" with "AST" because
the acronym has already been defined, and to replace "shall be" with "is"
for better readability.
Section 334.122, Definitions for ASTs, is proposed to be amended. The title
is proposed to be amended to add "Aboveground Storage Tanks (ASTs)" to reflect
the title name change. Section 334.122(a) is proposed to be amended to delete
"shall" for greater readability. In §334.122(b), the definition of "Aboveground
Storage Tank or AST" is proposed to be amended to correct the format and delete
"(or AST)"; the definition of "Appropriate district office" is proposed to
be deleted because it has a commonly understood meaning and does not require
a regulatory definition; subsequent definitions were renumbered throughout
to account for this deletion and subsequent additions and deletions; the definition
of "Electric generating facility" is proposed to be amended to delete the
title of the cross-referenced section, because it has previously been given
within this section; the definition of "Facility" is proposed to be deleted
to eliminate redundancy because this term is defined in Subchapter A; the
definition of "Facility owner" is proposed to be deleted as unnecessary because
it has a commonly understood meaning; and the definitions of "Operator," "Owner,"
"Petroleum product," "Release," "Retail service station," and "Tank" are proposed
to be deleted to eliminate redundancy because these terms are already defined
in Subchapter A.
Section 334.123, Statutory Exemptions for ASTs, is proposed to be amended.
The title of this subsection is proposed to be amended to delete "Statutory"
because it is unnecessary and add "Aboveground Storage Tanks (ASTs)." Section
334.123(a) is proposed to delete ", as provided in the Texas Water Code, §26.344"
as an unnecessary reference. Section 334.123(b)(1) and (2) is proposed to
be amended by replacing "aboveground storage tanks" with its acronym because
the acronym has been previously defined. New §334.123(c) is proposed
to be added to make explicit that the agency may ask a tank owner and a tank
operator to verify claimed exempt status.
Section 334.124, Commission Exclusions for ASTs, is proposed to be amended.
The title of this section is proposed to be amended to delete the term "Commission"
from the title because it is unnecessary, and add "Aboveground Storage Tanks
(ASTs)." Section 334.124(a) is proposed to be delete "by commission directive"
because it is unnecessary. Section 334.124(a)(2) is proposed to be amended
to replace "such" with "this" and "shall" with "must" to improve readability.
Section 334.124(b) is proposed to be amended to replace "aboveground storage
tank" with "AST" because this acronym has been previously defined, and to
update the title of §334.126 to agree with the newly proposed title.
New §334.124(c) is proposed to be added to this subsection to make explicit
that the agency may ask a tank owner and a tank operator to verify claimed
excluded status.
Section 334.125, General Prohibitions and Requirements for ASTs, is proposed
to be amended. The title is proposed to be amended to add "Aboveground Storage
Tanks (ASTs)." Section 334.125(a)(1) is proposed to be amended to become part
of subsection (a) so that the subsection information can be reorganized. Section
334.125(a) is also proposed to be amended to replace "paragraph 2" in the
first line with "paragraph (1)", to replace "person" with "common carrier
(as defined in §334.2 of this title (relating to Definitions)", to replace
the phrase "such tank is registered with the commission" with "the owner or
operator has a valid, current registration certificate, issued by the agency,"
and to delete the last sentence because of changes made to the PST program
to implement HB 2815 and because of changes made to Subchapter A to implement
that legislation. Section 334.125(a) is also proposed to be amended to delete
the phrase "or have deposited" because tank owner/operator obligations are
now covered in the proposed §334.125(b), and to update the title of §334.127
to agree with what is being proposed. New §334.125(a)(1) is proposed
to be added to mirror certain changes made to Subchapter A; HB 2815 mandates
extensive revamping of the PST program, and an area heavily affected is tank
registration. Because of those changes, a new type of agency authorization
has been created for regulatory delivery prohibitions as they apply to both
USTs and ASTs (see preamble comments on §334.5 of Subchapter A). For
new or replacement AST installations, this new "temporary delivery authorization"
may serve in the listed circumstances as adequate for common carriers delivering
to those tanks (also, see preamble language for §334.127(h) of this subchapter).
New §334.125(a)(2) is proposed to be added to further clarify what the
common carrier must observe before making his delivery to the AST(s) in question.
Existing §334.125(a)(2) language is proposed to be deleted because the
regulations for delivery to newly installed ASTs is now covered by the proposed
new language earlier in this section. Section 334.125(b) is proposed to be
amended by adding new language that makes it explicit, as it is in Subchapter
A, that the tank owner or operator must show the proper documentation to the
common carrier before delivery into the tanks is accepted (in the current
rule, owner/operator obligations exist in subsection (a) of this section).
Existing §334.125(b) and (c) language is proposed to be deleted as redundant
to §334.126 and §334.127 of this subchapter, respectively.
Section 334.126, Installation Notification for ASTs, is proposed to be
amended. The title is proposed to be amended to add "Aboveground Storage Tanks
(ASTs)." Section 334.126(a) is proposed to be amended to delete "on or after
the effective date of this subchapter," because this language is unnecessary
and to replace "shall" with "must" to improve readability. Section 334.126(a)(1)
is proposed to be amended to replace "executive director" with "agency." Section
334.126(a)(1)(A) is proposed to be amended by replacing "commission's" with
"agency's", and "a commission" with "an agency"; and to update "district office"
to "regional office" to reflect current agency terminology; §334.126(a)(1)(B)
is proposed to be amended to change "agent or" to "or" and to change the second
"or" to "e.g." to clarify the rule language; §334.126(a)(1)(C) is proposed
to be amended to replace "commission's" with "agency's", to delete "as" and
"as possible" to tighten unacceptably vague language, and to change "designated"
to "authorized" to clarify the rule requirement; §334.126(a)(1)(D) is
proposed to be amended to replace "aboveground storage tanks" with its acronym
because the acronym has been previously defined; §334.126(a)(1)(E) is
proposed to be amended to change "designated" to "authorized" to clarify the
rule requirement, to replace "commission's" with "agency's", and to update
"district" to "regional" to reflect current agency terminology; §334.126(a)(1)(F)
is proposed to be amended to replace "aboveground storage tanks" with its
acronym because the acronym has been previously defined and to delete "(relating
to Construction Notification)" in the reference to §334.6 because this
section title has been previously cited in this section. Section 334.126(a)(2)
is proposed to be amended by replacing "executive director" with "agency",
and by replacing "aboveground storage tank" with its acronym because this
acronym has been previously defined in this section; §334.126(a)(3) is
proposed to be amended to replace "aboveground storage tank" with its acronym
because this acronym has been previously defined in this section; and §334.126(a)(4)
is proposed to be amended to replace "owner or operator" with "person" to
explicitly include landowners who wish to perform this activity, whether or
not they consider themselves to be tank "owners" or "operators", and to update
the titles of §334.6 and §334.126 to agree with the proposed new
titles. Section 334.126(b) is proposed to be amended to delete "statutorily"
in §334.126(b)(1) because this word is unnecessary and to update the
proposed titles of referenced §§334.123, 334.124, and 334.127.
Section 334.127, Registration for ASTs, is proposed to be amended. The
title is proposed to be amended to add "Aboveground Storage Tanks (ASTs)."
Section 334.127(a)(1) is proposed to be amended to replace "shall" with "must"
to improve readability, to replace "commission" with "agency", add "authorized
agency" in front of "forms" for greater clarity, and to change "supplied by
or approved by the executive director" to "in accordance with subsection (e)
of this section" to clarify rule requirements. Section 334.127(a)(1)(A) is
proposed to be amended to delete "statutorily" as unnecessary, and to update
the title of reference §334.123 to reflect the newly proposed title;
and §334.127(a)(1)(B) is proposed to be amended to delete "by commission
directive" as unnecessary, and to update the title of referenced §334.124
to reflect the newly proposed title. Section 334.127(a)(2) is proposed to
be amended to add "and operator," "or operator," and "and operator remain"
to reflect that the agency proposes under this section, AST owners and operators
be made jointly and severally liable for all requirements of this section.
This will mirror the liability scheme of the remainder of this chapter (except
for tank fees). Section 334.127(a)(2) is also proposed to be amended to replace
"aboveground storage tank" with its acronym because the acronym has been previously
defined, to change "shall be" to "are" for better readability, to combine
the second and third sentences for greater clarity, to replace "shall be held"
with "and operator remain" and to delete "by such representatives" to improve
readability and to clarify rule requirements. Section 334.127(a)(3) is proposed
to be amended to replace "aboveground storage tanks" with its acronym because
this acronym has been previously defined, to change "shall" and "be" to "are"
for better readability, to delete "annual facility" because it is unnecessary,
to update the reference to §334.128 to reflect its newly proposed title,
to add "or operator" to reflect the agency's proposal to make the liability
under this section joint and several for AST owners and operators, and to
insert "or timely" after "properly" to clarify the rule requirement. Section
334.127(b) is proposed to be amended to add "or operates" to reflect the agency's
proposal to make the liability under this section joint and several for AST
owners and operators, to replace "commission" with "agency", and to change
"supplied by or approved by the executive director" to "an authorized agency"
to clarify the rule requirement. Section 334.127(c) is proposed to be amended
to insert "or operates" to reflect the agency's proposal to make the liability
under this section joint and several for AST owners and operators, to replace
"aboveground storage tank" with its acronym because the acronym has been previously
defined, and to replace "supplied by or approved by the executive director"
with "agency on an authorized agency form" and to insert "first", to clarify
the rule requirement. Section 334.127(d) is proposed to be amended to add
"or operator" to reflect the agency's proposal to make the liability under
this section joint and several for AST owners and operators, to replace "aboveground
storage tank" with its acronym because the acronym has been previously defined,
to replace "shall" with "must" in four locations to improve readability, to
replace "executive director" with "agency" in two locations; to delete "necessarily"
to clarify the rule requirement, and to replace "Such" with "This" to improve
readability, to change "supplied by or approved by the executive director"
to "an authorized agency" and "which has been completed in accordance with
subsection (e) of this section" to clarify the rule requirement, to replace
"commission's unique" with "Texas Natural Resource Conservation Commission
(TNRCC)" and to add "in the appropriate space on the form" to clarify the
rule requirement. Section 334.127(e) is proposed to be amended to change "Registration"
to "Required" and change "providing AST registration information" to improve
readability. Section 334.127(e)(1) is proposed to be amended to replace "tank"
with "AST" to increase clarity, to add "or operator" to reflect the agency's
proposal to make the liability under this section joint and several for AST
owners and operators, to replace "shall" with "must" to improve readability,
to delete "required" as unnecessary, and to change "supplied by or approved
by the executive director" to "indicated on the agency's authorized form"
to improve clarity; §334.127(e)(2) is proposed to be amended to change
"shall" to "must" in three places for better readability, to delete "as" and
"as possible" to tighten unacceptably vague language, to insert ", operator"
and "of the owner or operator" to reflect the agency's proposal to make the
liability under this section joint and several for AST owners and operators,
and to change "the owner's designated" to "an authorized" to clarify the rule
requirement, and to replace "executive director" with "agency"; §334.127(e)(3)
is proposed to be amended to replace "tank" with "AST" for greater clarity;
to add "or operators" to reflect the agency's proposal to make the liability
under this section joint and several for AST owners and operators, to replace
"shall" with "must" for better readability, and to replace "aboveground storage
tanks" with its acronym because this acronym has been previously defined; §334.127(e)(4)
is proposed to be amended to replace "Tank" with "All AST" and "tanks" with
"or operate ASTs" for greater clarity, to add "or operators" to reflect the
agency's proposal to make the liability under this section joint and several
for AST owners and operators, to replace "shall" with "must" for better readability,
and add "where regulated ASTs are located, unless otherwise allowed under
subsection (f) of this section" to clarify rule requirements; and §334.127(e)(5)
is proposed to be amended to replace "shall" with "must" for greater readability.
Section 334.127(f) is proposed to be amended to replace "aboveground storage
tanks" with its acronym because this acronym has been previously defined in
this section, to replace "shall" with "must" for greater readability, to insert
"or operator" to reflect the agency's proposal to make the liability under
this section joint and several for AST owners and operators, and to correct
the period at the end to a colon. Section 334.127(f)(1) is proposed to be
amended to insert "or operator" and "or operator's" to reflect the agency's
proposal to make the liability under this section joint and several for AST
owners and operators, to replace "may" with "must"to clarify the rule requirement,
and to correct the period at the end to a semicolon; §334.127(f)(2) is
proposed to be amended to insert "or operator must" and "or operator's", and
delete "owner's", to reflect the agency's proposal to make the liability under
this section joint and several for AST owners and operators, to replace "shall"
with "must" for better readability, to delete ", except that records for any
period prior to the effective date of this subchapter shall not be required"
because the effective date of the rule is changing, to replace "commission"
with "agency" and to add "; and" and delete the period at the end; and §334.127(f)(3)
is proposed to be amended to insert "or operator's" to reflect the agency's
proposal to make the liability under this section joint and several for AST
owners and operators, to replace "shall" with "must" for better readability,
and to replace "executive director's" with "agency's." Section 334.127(g)
is proposed to be amended to replace "tank" with "AST" to improve clarity;
to replace "commission" and "executive director" with "agency"; to insert
"and/or operator" to reflect the agency's proposal to make the liability under
this section joint and several for AST owners and operators, and to replace
"shall be required to" with "must" for better readability. New §334.127(h)
language is proposed to provide for a 90-day temporary authorization for delivery
to new or lacement ASTs, to reflect this new type of authorization and its
relationship to delivery prohibitions (see preamble comments for §334.125
and §334.5). The existing language in §334.127(h) is proposed for
deletion as unnecessary and redundant.
Section 334.128, Annual Facility Fees for ASTs, is proposed to be amended.
The title is proposed to be amended to add "Aboveground Storage Tanks (ASTs)."
Section 334.128(a)(1) is proposed to be amended to insert "will" in place
of "shall" for better readability, to insert "agency" in place of "commission",
and to update the title of §334.127 as proposed; §334.128(a)(2)
is proposed to be amended to insert "will" in place of "shall" and insert
"must" in place of "shall" for better readability, and to insert "AST" in
place of "aboveground storage tank" because this acronym has been previously
defined; and §334.128(a)(3) is proposed to be amended to insert "agency"
in place of "executive director." Section 334.128(b)(1) is proposed to be
amended to insert "agency" in place of "executive director" and to insert
"will" in place of "shall" for better readability; §334.128(b)(2) is
proposed to be amended to insert "will" in place of "shall" to improve readability,
and to insert "ASTs" in place of "aboveground storage tanks" because this
acronym has been previously defined. Section 334.128(c)(2) is proposed to
be amended to insert "agency" in place of "executive director" and to insert
"will" in place of "shall" for better readability. Section 334.128(d) is proposed
to be amended to insert "agency" in place of "commission" and to insert "will"
in place of "shall" for better readability. Section 334.128(e) is proposed
to be amended to insert "will" in place of "shall" for better readability,
to insert "AST" in place of "aboveground storage tank" because this acronym
has been previously defined, and to insert "TWC" in place of "Texas Water
Code" because this acronym has been previously defined.
Section 334.129, Release Reporting and Corrective Action for ASTs, is proposed
to be amended to add "Aboveground Storage Tanks (ASTs)" and §334.129(a)
and (b) is proposed to be amended to replace "aboveground storage tank" with
"AST" because this acronym has already been defined and to replace "shall"
with "must" to improve rule readability.
Section 334.130, Reporting and Recordkeeping for ASTs, is proposed to be
amended. The title is proposed to add "Aboveground Storage Tanks (ASTs)."
Section 334.130(a) is proposed to be amended to insert "must" in place of
"shall" for better readability. Section 334.130(a)(1) is proposed to be amended
to update the title of §334.126 as proposed; §334.130(a)(2) is proposed
to be amended to insert "AST" in place of "aboveground storage tank" because
this acronym has been previously defined, and to delete the title of referenced §334.126
because it has been previously cited in this section; §334.130(a)(3)
is proposed to be amended to insert "ASTs" in place of "aboveground storage
tanks" because this acronym has been previously defined and to update the
title of §334.127 as proposed; §334.130(a)(4) is proposed to be
amended to insert "ASTs" in place of "aboveground storage tanks" because this
acronym has been previously defined and to update the title of §334.128
as proposed; §334.130(a)(5) is proposed to be amended to update the title
of §334.129 as proposed; and §334.130(a)(6) is proposed to be amended
to insert "agency" in place of "executive director." Section 334.130(b)(1)(A)
is proposed to be amended to insert "ASTs" in place of "aboveground storage
tanks" because this acronym has been previously defined and to insert "must"
in place of "shall" for better readability; and §334.130(b)(1)(B) is
proposed to be amended to insert "and operators" to reflect the agency's proposal
to make the liability under this section joint and several for AST owners
and operators, to insert "ASTs" in place of "aboveground storage tanks" because
this acronym has been previously defined, and to delete the title of referenced §324.127
because this has already been cited in this section. Section 334.130(b)(2)
is proposed to be amended to insert "ASTs" in place of "aboveground storage
tanks" and to insert "AST" in place of "aboveground storage tank" because
this acronym has been previously defined, to insert "must" in place of "shall"
and to insert "are" in place of "shall be" for better readability, and to
delete the title of referenced §334.127 because it has been previously
cited in this section.
Section 334.131, Enforcement for ASTs, is proposed to be repealed because
the agency has consolidated all enforcement rules into Chapter 70, which followed
statutory enforcement consolidation into an unified TWC, Chapter 7.
Section 334.132, Other General Provisions for ASTs, is proposed to be amended.
The title is proposed to be amended to add "Aboveground Storage Tanks (ASTs)."
Section 334.132(a) is proposed to be amended to insert "must" in place of
"shall" for better readability, to delete "Texas Air Control Board," and "Texas
Water Commission" and insert "Texas Natural Resource Conservation Commission"
to reflect the consolidation of those two agencies. Section 334.132(b) is
proposed to be amended to insert "ASTs" in place of "aboveground storage tanks"
because this acronym has been previously defined, to insert "are" in place
of "shall be" for better readability, and to delete "contractor, operator,
or other" because these additional words are unnecessary, to insert "the"
in place of "an aboveground storage tank" to improve readability, and to delete
"to be principally in charge of any activities or procedures required under
this subchapter" to remove a legally inappropriate qualifying phrase. Section
334.132(c)(1) is proposed to be amended to insert "AST" in place of "aboveground
storage tank" because this acronym has been previously defined, to insert
"agency" in place of "commission", and to insert "must" in place of "shall"
for better readability. Section 334.132(c)(1)(B) is proposed to be amended
to insert "agency" in place of "commission." Section 334.132(c)(2) is proposed
to be amended to insert "agency's" in place of "commission, its" and to delete
an unnecessary comma. Section 334.132(c)(2)(A) is proposed to be amended to
insert "AST" in place of "aboveground storage tank" because this acronym has
been previously defined. Section 334.132(c)(3) is proposed to be amended to
insert "agency" in place of "commission", to insert "direct" in place of "order"
to improve readability, to insert "AST" in place of "aboveground storage tank"
because this acronym has been previously defined, and to delete "aboveground
storage" because it is unnecessary with the previous amendments. Section 334.132(c)(4)
is proposed to be deleted in its entirety as unnecessary and redundant because
it duplicates language in the TWC, Subchapter I. Section 334.132(c)(5) is
proposed to be deleted because the citation is no longer accurate and the
language duplicates that now found in Texas Health and Safety Code, §753.008.
Subchapter G, Target Concentration Criteria:
Subchapter G is proposed to be amended to update some risk assessment terminology
and criteria and to do "limited" regulatory reform amendments to streamline
the rules and to improve clarity and readability.
Section 334.201, Purpose and Applicability, is proposed to be amended.
Section 334.201(a) and (b) is proposed to be amended to replace "executive
director" with "agency." Section 334.201(b) is also proposed to be amended
to replace "the effective date of these rules" with "November 8, 1995" to
maintain the originally intended date.
Section 334.202, Definitions, is proposed to be amended. The definition
of "Institutional Control" is proposed to be amended to replace "executive
director" with "agency." The definition of "Potential beneficial use" is proposed
to be amended to replace "were" with "was" to correct to a singular verb and
to replace "and/or" with "or" to improve rule readability and clarify the
rule requirement.
Section 334.203, Risk-Based Criteria for Establishing Target Concentrations,
is proposed to be amended. Section 334.203(1)(A) is proposed to be amended
to replace "executive director" with "agency" and to delete "or not" to improve
rule readability. Section 334.203(1)(B)-(D) and (F) is proposed to be amended
to change "executive director" to "agency." Section 334.203(1)(I)(i) is proposed
to be amended to delete the term "reasonable" to remove ambiguity from the
rule. Section 334.203(1)(I)(iii) and (iv) is proposed to be amended to change
"executive director" to "agency." Section 334.203(1)(I)(vi) is proposed to
be amended to replace "free product" with "non-aqueous phase liquid" and to
change "free product" to "of non-aqueous phase liquid" to use more standard
risk assessment terminology (consistent with similar changes being made throughout
the chapter), to change the title of referenced §334.79 from "Free Product"
to "of Non-Aqueous Phase Liquid" to reflect the proposed new title of that
rule section, to change "executive director' to "agency." Section 334.203(1)(J)(i)
is proposed to be amended to change "executive director" to "agency" and "commission"
to "agency." Section 334.203(1)(J)(ii) is proposed to be amended to replace
"two" with "15" to reflect a change in risk assessment criteria which is more
protective of human health and safety. Section 334.203(1)(L)-(O) is proposed
to be amended to change "executive director" to "agency." Section 334.203(2),
(5), and (6) is proposed to be amended to insert "agency" in place of "executive
director." Section 334.203(2)(L) is proposed to be amended to insert a comma
after operator and to insert "the agency," in place of "executive director."
Section 334.203(2)(M) and (N) is proposed to be amended by inserting "agency"
in place of "executive director." Section 334.203(3) is proposed to be amended
to insert "agency" in place of "commission." Section 334.203(5)(E), (G), and
(6) is proposed to be amended by inserting "agency" in place of "executive
director."
Section 334.204, Criteria for Selection of Land Use, is proposed to be
amended. Section 334.204(2) is proposed to be amended to replace "executive
director" with "agency." Section 334.204(3) is proposed to be amended to replace
"commission" with "agency." Section 334.204(6) is proposed to be amended to
replace "executive director" with "agency."
Section 334.205, Institutional Control Requirements, is proposed to be
amended to replace "executive director" with "agency." Section 334.205(2),
first line, is proposed to be amended to insert a comma after operator.
Section 334.206, Criteria For Institutional Control Use, is proposed to
be amended to replace "executive director" with "agency." Section 334.206(a)(3)
is proposed to be amended to insert "Land" into the current title of the professional
board identified in the rule to update it. Section 334.206(a)(6) is proposed
to be amended to insert "of" in place of "at" and to delete "Texas Natural
Resource Conservation Commission or subsequent" for greater clarity.
Section 334.208, Model Institutional Controls, lead-in language is proposed
to be added for correct formatting and as an explanation for the figure that
is contained in this section. The "Model Institutional Control for Properties"
figure is proposed to be amended in two signature locations near the end of
the document to change the first two numbers in the year portion of the date
from "19" to "20" to update the document for the new millennium.
Subchapter H, Petroleum Storage Tank Reimbursement Program:
Subchapter H is proposed to be amended to reflect the two year extension
to the expiration date of the Petroleum Storage Tank (PST) Reimbursement Program
from "2001" to "2003" pursuant to HB 2816 and to reflect the six month extension
to the corrective action plan deadline from December 23, 1997 to June 23,
1998 to reflect a twelve month extension to the corrective action plan goals
deadline, and to reflect the new 90 day processing time necessary for reimbursements
pursuant to HB 2815. Amendments are also proposed to streamline the rules
and to improve clarity and readability.
The title of the Subchapter H is proposed to be amended to delete the outdated
term "Interim" at the beginning.
Section 334.301, Applicability of this Subchapter, is proposed to be amended.
Section 334.301(b)(1) and (2) is proposed to be amended to change "executive
director" to "agency." Section 334.301(c) is proposed be amended to change
"commission" to "agency", and is proposed to be amended to reflect the two
year extension to the expiration date of the PST reimbursement program from
"2001" to "2003" pursuant to HB 2816's TWC, amended §26.361(a). Section
334.301(d) is proposed to be deleted because it is obsolete; this subsection
is related to the processing of applications submitted prior to June 16, 1991.
Subsequent subsections were renumbered due to the deletion of this subsection.
Existing §334.301(e) has been renumbered to (d) and pluralized its title
and clarified that any person seeking reimbursement must meet all of the requirements
in the subchapter. Section 334.301(f) is proposed to be deleted because no
such rules were adopted by the agency. Section §334.301(e)(2) and (3)
is proposed to be amended by changing "executive director" to "agency." Section
334.301(i) is proposed to be deleted because it pertains to the processing
of applications during the 1994-1995 biennium. Subsequent subsections were
renumbered due to the deletion of this subsection.
Section 334.302, General Conditions and Limitations Regarding Reimbursement,
is proposed to be amended. Section 334.302(a) is proposed to be amended to
delete the unnecessary words "In order to" and replace with "To." Section
334.302(a)(1) and (2) is proposed to be amended to change "executive director"
to "agency." Section 334.302(a)(3) is proposed to be amended to change "commission"
to "agency." Section 334.302(b) is proposed to be amended to change "executive
director" and "commission" to "agency." Section 334.302(c) is proposed to
be amended to change "commission" to "agency." Section 334.302(c)(1) is proposed
to be amended to change "executive director" to "agency", and to reflect the
proposed change to the title of referenced §334.314. Section 334.302(c)(4)
is proposed to be amended to change "commission" to "agency." Section 334.302(c)(5)
is proposed to be amended to improve the readability, and to reflect the two
year extension to the expiration date of the PST reimbursement program from
2001 to 2003 pursuant to HB 2816's TWC, amended §26.361(a). Section 334.302(d)(1)
is proposed to be amended to correct the title of the §334.304 cross
reference. Section 334.302(d)(2) is proposed to be amended to change "executive
director" to "agency." Section 334.302(d)(3) is proposed to be amended to
correct and amend the §334.303 cross reference title; Section 334.302(d)(4)
is proposed to be amended to correct the §334.310 cross reference title,
and to add "respectively" for greater clarity. Section 334.302(d)(5) is proposed
to be amended to correct the §334.308 cross reference title. Section
334.302(d)(6) is proposed to be amended to correct the §334.309 cross
reference title. Subsection (e) is proposed to delete the §334.310 cross
reference phrase "(relating to Requirements for Eligibility Interim Period)"
because it has already been given once in this section. Section 334.302(j)
is proposed to be amended to change "executive director" to "agency" and to
change "commission, nor its employees" to "nor" and "agency." Section 334.302(l)
is proposed to be amended to change "executive director" to "agency."
Section 334.303, Time to File Application, is proposed to be amended. The
section title is proposed to be amended to "When to File Application" to improve
readability. Section 334.303(a) is proposed to be amended to add language
clarifying the time frame over which the agency will accept applications for
reimbursement based upon the expiration date of the reimbursement program
(September 1, 2003), and the 90-day processing time necessary for reimbursements
pursuant to HB 2815's TWC, new §26.35731(c) and HB 2816's TWC, amended §26.361(a).
Section 334.303(b) is proposed to be amended to add clarify that only "a complete
application will be considered for reimbursement." Section 334.303(c) is proposed
to be added to explain that an application will not be considered complete
until the required supporting technical information, reports, and/or documentation
required by agency rules at Subchapter D have been filed with the agency.
Section 334.304, Who May File Application, is proposed to be amended to
change "executive director" to "agency staff."
Section 334.305, Where and How Documentation Must be Filed, is proposed
to be amended. Section 334.305(a) is proposed to be amended to incorporate
some of the language from its current paragraph (1), which is then proposed
to be deleted to remove a specific address that might change and instead specify
in §334.305(a) the use of the address on the application, and to delete §334.305(a)(2)
to remove the requirement to submit a copy of the application to the agency's
regional office. Section 334.305(b) is proposed to be amended to change "executive
director" to "agency." Section 334.305(c) is proposed to be amended by changing
"executive director" to "agency", by changing "executive director in case
of hand delivery" to "agency", and to delete "date postmarked on the return
receipt in the case of mailing or courier services, and the" to clarify and
simplify the agency's receipt date for documents received.
Section 334.306, Form and Contents of Application, is proposed to be amended.
Section 334.306(a) is proposed to be amended to change "executive director"
to "agency." Section 334.306(b) is proposed to be amended to change the "shall"
to "must" to improve readability. Sections 334.306(b)(1) and (5) are proposed
to be amended to change "executive director" to "agency." Section 334.306(b)(7)
is proposed to be amended to change to the word "evidence" to "proof" and
change "evidence" to "submission" to add clarification and to improve readability,
and to replace "be accompanied by" with "include" to improve readability.
In §334.306(b)(7)(C), the word "or" is proposed to be deleted because
of the subsequent addition of a new §334.306(b)(7)(E). Section 334.306(b)(7)(D)
is proposed to be amended to clarify that an affidavit of payment to the person
who performed the corrective action, signed by the person who performed the
corrective action, must be notarized to verify the signature validity, and
to add the word "or" at the end so that a new §334.306(b)(7)(E) can be
added. Section 334.306(b)(7)(E) is proposed to be added to allow the use of
an affidavit of cost paid in full, accompanied by a promissory note to pay
in full, to serve as acceptable proof of payment. Section 334.306(b)(9) is
proposed to be amended to change "executive director" to "agency." Section
334.306(c) is proposed to be amended to update and clarify the language on
when an application may be filed. Section 334.306(c)(1) is proposed to be
amended to clarify that an application may be filed after the completion of
a phase "or a pre-approved activity;." Section 334.306(c)(2) is proposed to
be amended to change "executive director" to "agency." Section 334.306(d)
is proposed to be amended to change "executive director" to "agency" and to
delete "without prejudice" because it is not legally appropriate in this context.
Section 334.306(e) is proposed to be amended to change "executive director"
to "agency." Section 334.306(f)(3) is proposed to be amended to delete "and
remediation planning" from the site assessment phase. Section 334.306(f)(4)
is proposed to be added to include both risk assessment and the "remediation
planning" proposed to be deleted in §334.306(f)(3). Subsequent paragraphs
were renumbered due to the addition of this paragraph. Section 334.306(f)(6)
is proposed to be amended to include the descriptor "monitoring" in the post-remediation
phase for greater clarity. Section 334.306(f)(7) is proposed to add a new
"site closure" phase to more accurately describe the phases of corrective
action.
Section 334.307, Technical Information Required, is proposed to be amended.
Section 334.307(a) is proposed to be amended to change "executive director"
to "agency." Section 334.307(a)(1) is proposed to be amended to change "executive
director" to "agency", and to correct the Subchapter D cross reference title.
Section 334.307(b) is proposed to be amended to change "executive director"
to "agency", and to remove the unnecessary words "without prejudice" as legally
inappropriate in this context.
Section 334.308, Allowable Costs and Restrictions on Allowable Costs, is
proposed to be amended. Section 334.308(b) is proposed to be amended to change
"commission" to "agency." Section 334.308(c)(3) is proposed to be amended
to remove the specific advance approval requirement for a temporary water
supply because there is a general requirement for preapproval of all corrective
action activities already in §334.310(f), and to change "executive director"
to "agency." Section 334.308(c)(5) is proposed to be amended to delete observation
wells because they are used as part of leak detection and not for the remediation
discussed in this subchapter. Section 334.308(c)(8)(B) is proposed to be amended
to change "executive director" to "agency staff." Section 334.308(c)(15) is
proposed to be amended to change "executive director" to "agency." Section
334.308(c)(18) is proposed to be amended to clarify the type of cost reimbursable
to obtain access to off-site property. Section 334.308(c)(19) is proposed
to be amended to clarify how the determination of the reasonable value of
time spent by the applicant in planning and administering the applicant's
corrective action plan will be made, and to delete the gender specific pronoun
"his own" and replace it with "the applicant's;." Section 334.308(c)(20) is
proposed to be amended to delete "or confirmation of the" to clarify the requirement,
and to change "executive director" to "by agency staff." Section 334.308(c)(22)
is proposed to be amended to change "executive director" to "agency." Section
334.308(d)(2) is proposed to be amended to change "executive director" to
"agency." Section 334.308(e)(2) is proposed to be amended to change "executive
director" to "agency." Section 334.308(f) is proposed to be amended to change
"executive director" to "agency." Section 334.308(g)(5) is proposed to be
amended to change "executive director" to "agency." Section 334.308(g)(15)
is proposed to be amended to change "executive director" to "agency staff."
Section 334.308(g)(16) is proposed to be amended to change the section number
for referenced §334.321 to §334.84, to amend the title of §334.84
as proposed, and to change "executive director" to "agency." Section 334.308(g)(20)
is proposed to be amended to move a concept being deleted at the end of the
existing paragraph to the beginning of the paragraph to improve readability,
to add a new §334.308(g)(20)(A) to clarify that cost will not be reimbursed
for a regulated substance that is not a petroleum product, and to add a new §334.308(g)(20)(B)
rewording the language deleted in §334.308(g)(20) regarding a petroleum
product that has been commingled with a regulated substance that is not a
petroleum product.
Section 334.309, Reimbursable Costs, is proposed to be amended to change
"commission" to "agency."
Section 334.310, Requirements for Eligibility, is proposed to be amended.
Section 334.310(a)(1)(B) is proposed to be amended to reflect the two year
extension to the expiration date of the PST reimbursement program from "2001"
to "2003" pursuant to HB 2816's TWC, amended §26.361(a). Section 334.310(a)(1)(F)(i)(I),
(III), and (IV) is proposed to be amended to change "executive director" to
"agency." Section 334.310(a)(1)(F)(ii)(I) is proposed to be amended to change
"executive director" to "agency." Section 334.310(a)(2)-(5) is proposed to
be amended to change "executive director" to "agency." Section 334.310(c)
is also proposed to be amended to change "executive director" to "agency."
Section 334.310(e) is proposed to be amended to change "Commission" to "Agency."
Section 334.312, Owner/Operator Contribution, is proposed to be amended.
Section 334.312(a) is proposed to be amended to change "executive director"
to "agency." Section 334.312(d) is proposed to be amended to change "commission"
to "agency", and to reflect a six month extension to the corrective action
plan deadline from December 23, 1997 to June 23, 1998 pursuant to HB 2815's
TWC, amended §26.3512(g) and (h). Section 334.312(e) is proposed to be
amended to change "commission" to "agency" and to reflect a twelve month extension
to the corrective action plan goals deadline from "1998" to "1999" and to
change an "or" to "and" in the first date citation to improve readability.
Section 334.312(g)(1) and (2) is proposed to be amended to change "executive
director" to "agency."
Section 334.313, Review of Application by Executive Director, is proposed
to be amended. The section title is proposed to be amended to delete "by Executive
Director" because agency staff actually performs the review of the application.
Section 334.313(a) is proposed to be amended to change "executive director"
to "agency." Section 334.313(a)(1) is proposed to be amended to change "executive
director" to "agency", and to add a lead-in phrase for the subsequent procedures
for determining application completeness. Section 334.313(a)(1)(A) is proposed
to be added indicating that a complete application form must contain a completed
application, legible copies of invoices, proof of payment, preapproval documentation,
technical information requested in the application form, and a completed Application
Checklist. Section 334.313(a)(1)(B) is added indicating that the applicant
has 30 days to respond to deficiencies or reapply. Section 334.313(a)(1)(C)
is added indicating that the 30-day response time to deficiencies can be extended
by the agency for 30 days one time. Section 334.313(a)(1)(D) is added indicating
that after the application is determined complete the agency will do a technical
and financial review. Section 334.313(a)(1)(E) is added indicating that complete
applications with preapproved costs will be processed before applications
without preapproved costs and the applicant will be so notified. Section 334.313(a)(1)(F)
is added indicating that if the corrective action on an application is determined
unacceptable, the applicant will be notified and the application will not
be processed until the corrective action has been determined to be acceptable.
Section 334.313(a)(1)(G) is added indicating the received date will be the
date the complete application, or additional required information, is received
by the agency. Section 334.313(b) is proposed to be amended to insert "will
not be considered a complete claim and will not be processed" in place of
"may be returned by the executive director without prejudice" to clarify that
an application that does not have all the required information will not be
considered complete and thus will not be processed, and to remove "without
prejudice" as legally inappropriate language in this context. Section 334.313(b)
is also proposed to be amended to insert "This" in the second sentence in
place of "Return of the application by the executive director without prejudice"
to be consistent with the previous change and to be amended to incorporate
a deadline date of June 1, 2003 for submission of returned applications based
upon the expiration date of the reimbursement program, September 1, 2003,
and the 90-day processing time necessary for reimbursements pursuant to HB
2816's TWC, amended section §26.361(a) and HB 2815's TWC, new §26.35731(c).
Section 334.313(c) is proposed to be amended to change "executive director"
to "agency." Section 334.313(d) is proposed to be amended to clarify that
substantive review involves "technical and financial review," to change "executive
director" to "agency", to change "he" to "it" to be consistent with the previous
change, to break-out some of the information into a new §334.313(d)(1)
and to add a new §334.313(d)(2). Section 334.313(d)(1) language is proposed
to be amended to change "may" to "will" to indicate that further review of
the application will be postponed until additional required information is
received, to change "executive director" to "agency" and add a new sentence
indicating that the date received will be the date the agency receives the
required additional information. Section 334.313(d)(2) is added to allow issuance
of the fund payment report within the new legislatively required 90 days,
but withhold payment for the insufficiently documented costs or insufficiently
documented corrective action activity. Section 334.313(e) is proposed to be
amended to change "executive director" to "agency." Section 334.313(f) is
proposed to be amended to change "commission" to "agency."
Section 334.314, Executive Director's Fund Payment Report, is proposed
to be amended. The section title is proposed to be changed to "Fund Payment
Report." Section 334.314(a) is proposed to be amended to change "executive
director" to "agency." Section 334.314(b) is proposed to be amended to change
"executive director" to "agency", and to change the period for response to
the fund payment report from 45 days from the date of receipt to 60 days from
the date on the fund payment report . Section 334.314(c) and (d) is proposed
to be amended to change "executive director" to "agency." Section 334.314(e)
is proposed to be amended to change "executive director" to "agency", and
to change the word "his" to "its" and "he" to "it" to be consistent with the
previous change.
Section 334.315, Protest of Fund Payment Report, is proposed to be amended.
Section 334.315(a) is amended to change the word "he" to "the applicant" to
avoid using a single gender pronoun, and to change the period for protesting
the fund payment report from 45 days from the date on which the applicant
receives the fund payment report to 60 days from the date on the fund payment
report. Section 334.315(b) is proposed to be amended to change "executive
director" to "agency." Section 334.315(b)(2) is proposed to be amended to
change "executive director's" to "Texas Natural Resource Conservation Commission"
to reflect current agency terminology. Section 334.315(b)(4) is proposed to
be amended to delete "executive director's" to be consistent with the proposed
new title of this section, and to delete the unnecessary wording "of any other
complaint the applicant has relating to the claim" and replace it with a clarification
that documentation supporting a protest should be included with the statement
of protest submitted to the agency. Section 334.315(d) is proposed to be amended
to change the time to file a petition for relief from "45" to "60" days from
the date of notification from the agency that informal negotiations have ceased
and the final formal protest meeting has been held, and to change "executive
director" to "agency."
Section 334.318, Recovery of Costs, is proposed to be amended to change
"commission" to "agency."
Section 334.320, Responsibilities of Owners and Operators, is proposed
to be amended. The section title is proposed to be changed to "Responsibility
of Owners, Operators, and Others" to reflect all applicable parties under
this section. Section 334.320(b) and (c) is proposed to be amended to change
"executive director" to "agency."
Section 334.321, Corrective Action by the Commission, is proposed to be
amended. In the section title, "Commission" is proposed to be changed to "Agency."
Section 334.321(a)-(d) is proposed to be deleted because these limitations
are an unnecessary repeat of those found in Subchapter D, §334.84. Also,
the subsection designation is proposed to be removed from current §334.321(e)
due to the previous deletions; "executive director" is proposed to be changed
to "agency"; and language is proposed to be added to clarify that work authorized
by the agency to be performed by the owner or operator is subject to the estimated
cost preapproval requirements in this subchapter.
Section 334.322, Subchapter H Definitions, is proposed to be amended. The
following definitions are proposed to be deleted and added to Subchapter A, §334.2
because they are used in more than one subchapter: "Abate", "Aboveground storage
tank", "Backfill", "Corrective action", "Corrective action plan (remedial
action plan)", "House Bill 1214", and "Hydraulic fluid." The title of the
definition of "Commingled" is proposed to have "substance" deleted, to be
moved to Subchapter A, §334.2, and a cross reference to §334.2 for
the definition added here. The definition of "Confirmed" is proposed to be
amended to change "executive director" to "agency." The definition of "Eligible
owner" is proposed to be amended to add "held or" for greater clarity, and
to delete the obsolete last sentence. The definition of "Emergency abatement"
is proposed to be amended to add "mitigating" to be inclusive of all mitigating
actions, to add "in an emergency" to clarify the definition, to delete "by
mitigating fire, explosion, and vapor hazards," to make the definition inclusive
of all mitigating actions, and to change "executive director" to "agency."
The definitions of "Petroleum Product" and "Petroleum Storage Tank" are proposed
to be moved to Subchapter A, §334.2, with a cross reference to §334.2
added here. The remaining definitions are renumbered to accommodate these
changes.
Subchapter I, Underground Storage Tank Contractor Registration and Installer
Licensing:
Subchapter I amendments are proposed to streamline the rules and to improve
clarity and readability.
Section 334.402, Application for Certificate of Registration, is proposed
to be amended. At the beginning of this section, the unnecessary words "in
order" are proposed to be deleted. Section 334.402(1) is proposed to be amended
to change "executive director" to "agency." Section 334.402(2)(B) is proposed
to be amended to add "an authorized representative's name and title, when
the applicant is not an actual individual" in place of "the business representative's
name and title" because the business representative may not be the person
authorized to sign for the company when it is a company registering rather
than an individual. Section 334.402(2)(C) is proposed to be amended to change
"business" to "an authorized" to conform with the previous change. Section
334.402(2)(D) is proposed to be amended to delete "financial assurance, including"
to conform with subsequent changes in §334.402(2)(D)(i) and (ii). Section
334.402(2)(D)(i) is proposed to be amended: to add "proof" in place of "evidence"
to be more specific about what is required; to update the name of the agency
from "Texas Water Commission" to "Texas Natural Resource Conservation Commission";
to change "executive director" to "agency"; and to delete "; and a financial
statement prepared in conformity with accounting principles as defined by
the American Institute of Public Accountants, indicating an applicant's current
net worth of not less than $25,000; or" to move this documentation requirement
to the following §334.402(2)(D)(ii) for greater clarity. Section 334.402(2)(D)(ii)
is proposed to be amended to add the last documentation requirement deleted
from §334.402(2)(D)(i), to add a second alternative documentation of
a letter from a certified public accountant, and to delete the less specific
"other evidence of financial assurance which is determined by the executive
director to be sufficient for the purposes of the section." Section 334.402(2)(E)(i)-(iii)
is proposed to be amended to change "executive director" to "agency." Section
334.402(2)(F) is proposed to be amended to delete the notarization requirement
because it is unnecessary. Section 334.402(2)(G) is proposed to be added to
clarify that the application/issuance fee must be paid when the application
is submitted.
Section 334.403, Issuance of Certificate of Registration, is proposed to
be amended. Section 334.403(a) is proposed to be amended to change "commission"
to "agency"; to add "the initial application/issuance fee" in place of "fees"
to further clarify that the total fee of $150 is the sum of the application
and issuance fees; and to delete "The $100 issuance fee shall be refunded
if the application is withdrawn or denied." because processing is required
whether or not the application is approved. This is also consistent with the
fee provisions of other TNRCC licensing programs. Section 334.403(b) is proposed
to be amended to change "executive director" to "agency"; to delete the requirement
for comments to be sent by certified mail return receipt requested because
this will reduce agency costs and first class mail is adequate; to delete
the return of the $100 issuance fee because considerable processing effort
will have already occurred; to add the words "may be" to allow some flexibility
on denying certificates of registration in unusual but justified special circumstances;
and to delete the words "without prejudice" because they are not legally appropriate
in this context. Section 334.403(c) is proposed to be amended to change "executive
director" to "agency."
Section 334.404, Renewal of Certificate of Registration, is proposed to
be amended. Section 334.404(b) and (c) is proposed to be amended to change
"commission" to "agency." Section 334.404(d) is proposed to be amended to
add new language to clarify that submission of a properly completed application
includes proper payment of associated fees and certification of adequate financial
requirements, to replace "executive director" with "agency", and to delete
the remaining language to clarify it in §334.404(d)(1)-(3). Section 334.404(d)(1)
is proposed to add language to clarify that the current certification will
be considered provisionally renewed if the applicant submitted the renewal
application by the deadline and has not yet received notification of the agency's
renewal decision by the expiration date. Section 334.404(d)(2) is proposed
to add language to clarify that the current registration will not be considered
provisionally renewed if the applicant did not file the renewal application
prior to the expiration date, and the applicant has not received notification
of renewal by the expiration date. Section 334.404(d)(3) is proposed to clarify
that renewal certificates issued after the previous expiration date will have
an expiration date of one year following the previous expiration date. This
also means that some certificates of registration may not be for a full year,
depending on when the renewal application was received. Section 334.404(e)
is proposed to be amended to have the demonstration of financial requirements
made by certification and have the applicant be subject to submitting documentation
of financial requirements on demand rather than resubmitting this documentation
with each renewal. Section 334.404(g) is proposed to be amended to change
"executive director" to "agency"; and to specify issuance of a renewal approval
letter in place of a certificate to reduce TNRCC workload and cost.
Section 334.405, Denial of Certificate of Registration is proposed to be
amended. The title of this section is proposed to be amended to add "Grounds
for" to the beginning of the title to be more accurate and specific. The beginning
of the section is also proposed to be amended to change "executive director"
to "agency." Section 334.405(4) is proposed to be amended to change "executive
director" to "agency."
Section 334.406, Fee Assessments for Certificate of Registration, is proposed
to be amended. For simplification and clarification, §334.406(1)(A) is
proposed to be amended to change the application fee to a combined application/issuance
fee of $150; §334.406(1)(B) specifying the issuance fee separately is
proposed to be deleted and the remaining provisions renumbered. For further
simplification and clarification, newly renumbered §334.406(1)(F) is
proposed to be amended to cite the actual $25 late renewal fee instead of
cross referencing where to find it in the rules. Section 334.406(2) is proposed
to be amended to change "executive director" to "agency." Section 334.406(3)
is proposed to be added to indicate that all related fees are nonrefundable,
because processing takes place whether or not the application for a certificate
of registration is approved or disapproved. This new policy is consistent
with other TNRCC licensing programs.
Section 334.407, Other Requirements for Certificate of Registration, is
proposed to be amended. Section 334.407(a) is proposed to be amended to change
"executive director" to "agency." Section 334.407(a)(4) is proposed to be
amended to change "business" to "authorized" in conformance with the amendment
proposed to §334.402(2)(B). Section 334.407(b) is proposed to be amended
to delete the unnecessary word "such", to change "responsibility" to "requirements"
in conformance with previously proposed changes to §334.402, and to change
"commission" to "agency." Section 334.407(d) is proposed to be amended to
delete the "Texas Air Control Board" because this agency was combined with
the Texas Water Commission to form the Texas Natural Resource Conservation
Commission and to amend "Texas Water Commission" to read "Texas Natural Resource
Conservation Commission" for the same reason.
Section 334.409, Revocation, Suspension, or Reinstatement of Certificate
of Registration and License, is proposed to be amended to change "executive
director" to "agency."
Section 334.411, Type of Hearing, is proposed to be amended. The title
of the section is proposed to be changed to "Procedures for Revocation, Suspension,
or Reinstatement of a Certificate of Registration and License" to match the
new proposed contents of this section. The existing wording of this section
is proposed to be deleted as unnecessary because it is outdated and acts as
a statutory recitation. Proposed new §334.411(a)-(d) is proposed so that
the procedures for revocation, suspension, or reinstatement of the certificate
will be laid out more specifically. This proposed language is consistent with
that used elsewhere in this subchapter and in Subchapter J (Registration of
Corrective Action Specialist and Project Managers for Product Storage Tank
Remediation Projects) for revocations, suspensions, and reinstatements.
Section 334.412, Definitions, is proposed to be amended. Section 334.412(1)
is proposed to be deleted because the definition of "business representative"
already appears in the commission's generally applicable definitions in 30
TAC Chapter 3. New §334.412(1) is proposed to be amended by using "UST"
further on in this paragraph, by adding "by the agency" for greater clarity,
and by adding "the contractor" in place of "same" for greater clarity. Section
334.412(3) is proposed to be deleted because "commission" is also already
defined in Chapter 3. Former §334.412(4) and (5) is proposed to be renumbered
due to the previous deletions. Section 334.412(6) is proposed to be deleted
because "executive director." Section 334.412(7) is proposed to be renumbered
due to the previous deletions and §334.412(7)(D)(ii)(I) is proposed to
be amended to reflect that the Texas Water Well Drillers Board licensing responsibilities
have been transferred to the Texas Department of Licensing & Regulation.
Section 334.412(8) is proposed to be deleted because this definition is already
defined in Subchapter A. Section 334.412(9)-(10) is proposed to be renumbered
due to previous proposed deletions. Section 334.412(11)-(13) is proposed to
be deleted because "operator", "owner", and "person" are already defined in
agency general definitions in 30 TAC Chapter 3. Section 334.412(14) and (15)
is proposed to be renumbered to account for the previous proposed deletions.
Section 334.412(16) is proposed to be deleted because the definition is already
in Subchapter A. Section 334.412(17)-(19) is proposed to be renumbered to
account for previous proposed deletions.
Section 334.413, License for Installers and On-Site Supervisors, is proposed
to be repealed because it was only necessary to have this section until rules
were adopted by the commission that define the requirements necessary for
the issuance of installer and on-site supervisor licenses, and that has been
done.
Section 334.414, License for Installers and On-Site Supervisors, is proposed
to be amended. Section 334.414(b) is proposed to be amended to change "commission"
to "agency." Section 334.414(c)(1) is proposed to be amended to change "commission"
to "agency." Section 334.414(d) is proposed to be amended to change "commission"
to "agency."
Section 334.416, Requirements for Issuance of License A and License B,
is proposed to be amended. Section 334.416(a) is proposed to be amended to
add "applicant" in place of "installer or on-site supervisor" because it is
more accurate (it does not matter if the applicant is an installer or an on-site
supervisor); and to change "commission" to "agency." Section 334.416(e) is
proposed to be amended to change "executive director" to "agency." Section
334.416(f) is proposed to be amended to change "executive director's" to "agency's."
In §334.416(g) and (h), the phrase "prior to the examination" is added
to clarify that required courses must be completed prior to taking the license
examination. Section 334.416(i) and (i)(7) is proposed to be amended to change
"executive director" to "agency."
Section 334.417, Application for License A and License B, is proposed to
be amended. Section 334.417(a)(5) is proposed to be amended to change "a list
and description" to "documentation" to allow the agency to better verify that
the courses were taken. Section 334.417(a)(6) is proposed to be amended to
change "executive director" to "agency." Section 334.417(b) is proposed to
be amended to change "executive director" to "agency" and to add that the
initial application fee of $200 should accompany the licensing application.
Section 334.417(c) is proposed to be amended to add "take" in place of "schedule"
and to change "executive director's" to "agency's." Section 334.417(d) is
proposed to be amended to delete "without prejudice" because this wording
is not legally appropriate in this context, to add "application" in place
of "examination" because the application and examination fee are proposed
to be combined, and to change "executive director" to "agency."
Section 334.418, Notification of Examination, is proposed to be amended
by adding "application" in place of "examination" because the application
and examination fee are proposed to be combined and by changing "executive
director" to "agency." The phrase "on each specific UST category" is proposed
to be deleted from §334.419(i) to focus the test evaluation more onto
the overall knowledge of the applicant.
Section 334.418(g) is proposed to be amended by changing "commission's"
to "agency's." The Phrase "on each specific UST category" is proposed to be
deleted from §334.419(i) to focus the test evaluation more onto the overall
knowledge of the applicant.
Section 334.419, License A and License B Examination, is proposed to be
amended. Section 334.418(a), (d)-(f), and (h) is proposed to be amended by
changing "executive director" to "agency."
Section 334.420, Issuance of License A or License B, is proposed to be
amended. Section 334.420(a), (c), and (d) is proposed to be amended by changing
"executive director" to "agency."
Section 334.421, Renewal of License, is proposed to be amended. Section
334.421(b) is proposed to be amended to change "executive director" to "agency."
Subsection (c) is proposed to be amended to change "executive director" to
"agency." Section 334.421(c)(1) is proposed to be amended to add "documentation
of" in place of "evidence satisfactory to demonstrate" to allow the agency
to better verify that the courses were taken. Section 334.421(d) is proposed
to be amended to add new wording that the applicant must submit renewal fees
and course completion certificates with the application, and to delete the
last sentence because the concept is covered in more detail in new §334.421(d)(1)
and (2). Section 334.421(d)(1) is proposed to add language to clarify that
the current license will be considered provisionally renewed if the applicant
submits a timely renewal application and has not yet received notification
of the agency's renewal decision by the expiration date. Section 334.421(d)(2)
is proposed to add language to clarify that the current license will not be
considered provisionally renewed if the applicant did not submit the renewal
application on time and the applicant has not received notification of renewal
by the expiration date. Section 334.421(d)(3) is proposed to clarify that
licenses issued after the previous expiration date will have an expiration
date of one year following the previous expiration date. This also means that
some licenses may not be for a full year depending on when the renewal application
was received. Section 334.421(f) is proposed to be amended to change "executive
director" to "agency." Section 334.421(g) is proposed to be amended to delete
the former language and add new language to clarify that eight hours of courses
are required for License A or B, and 8 hours each of the courses required
for License A and License B are required to renew both, except that when the
same course is required for both Licenses A and B, the course hours can be
counted twice. Section 334.421(h) is proposed to be deleted because this requirement
has been incorporated into the language of the preceding amendment. Section
334.421(i) and (j) is proposed to be renumbered due to the previously proposed
deletion. Newly renumbered §334.421(h) is proposed to be amended to change
and to delete "and (h)" to be consistent with the deletion of the original
subsection (h) and to change "executive director" to "agency." Newly renumbered §334.421(j)
is proposed to be amended to delete "and (h)" to be consistent with the deletion
of the original subsection (h).
Section 334.422, Denial of License A or License B, is proposed to be amended.
The title of this section was changed to add "Grounds for" at the beginning
to be more descriptive of the contents of the section. The beginning of the
section is proposed to be amended to change "executive director" to "agency."
Section 334.422(4) is proposed to be amended to delete "or" at the end so
that new §334.422(5) and (6) can be added. Section 334.422(5) is proposed
to be added for denial of renewal because of applicant default on loans guaranteed
by the Texas Guaranteed Student Loan Corporation. This is added in accordance
with the Texas Education Code, Chapter 57. Section 334.422(6) is proposed
to be added for denial of renewal because an applicant is delinquent on child
support payments. This is added in accordance with the Texas Family Code,
Chapter 232. Section 334.422(5) is proposed to be renumbered due to previous
paragraph additions.
Section 334.423, Fee Assessments for License A and License B, is proposed
to be amended. Section 334.423(a)(1) is proposed to be amended to add "initial
license application fee--$200" and to delete "examination fee--$50.00" to
clarify that the initial application fee is required and that the fee includes
the examination fee. Section 334.423(a)(2) is proposed to be amended to add
"examination fee--$50.00 (retests only)" and to delete "initial license application
fee--$200" to clarify the $50 fee is for examination retests only. Section
334.423(a)(4) is proposed to be amended to add the actual $25 amount of the
renewal fee instead of cross referencing where to find the fee amount in the
rules. Section 334.423(c) is proposed to be deleted because this fee is being
eliminated. Section 334.423(d) is proposed to be renumbered due to the previous
deletion, and to change "executive director" to "agency"; and amended to delete
the cross reference for the late renewal fee amount that has been previously
proposed to be added in §334.423(a)(4). Section 334.423(d) is proposed
to be added to indicate that all related fees are nonrefundable, because processing
takes place whether or not the application for a license is approved or disapproved.
This new policy is consistent with other TNRCC licensing programs.
Section 334.424, Other Requirements for a License A and License B, is proposed
to be amended. Section 334.424(a) is proposed to be amended to change "executive
director" to "agency." Section 334.424(b) is proposed to be amended by adding
the word "all" and by changing the chapter number from "313" to "213" to reflect
the new location for the Edwards Aquifer rules. Section 334.424(c) is proposed
to be amended to delete the "Texas Air Control Board," which was combined
with the Texas Water Commission to form the Texas Natural Resource Conservation
Commission, and to amend "Texas Water Commission" to reflect the name of the
new organization, "Texas Natural Resource Conservation Commission."
Section 334.426, Revocation, Suspension, or Reinstatement of a License
A and License B, is proposed to be amended to change "executive director"
to "agency."
Section 334.428, Type of Hearing, is proposed to be amended. The title
of the section is proposed to be changed to "Procedures for Revocation, Suspension,
or Reinstatement of a License A and License B" to match the new proposed contents.
The existing wording of this section is proposed to be deleted as unnecessary
because it is outdated and acts as a statutory recitation. Proposed new §334.428(a)-(d)
is proposed so that the procedures for revocation, suspension, or reinstatement
of the licenses will be laid out more specifically. This proposed language
is consistent with that used elsewhere in this subchapter and in Subchapter
J for revocations, suspensions, and reinstatements.
Section 334.429, Penalties Effective On or After September 1, 1995, is
proposed to be repealed in its entirety as outdated, due to the consolidation
of enforcement-related rules into Chapter 70, which itself followed a statutory
enforcement consolidation.
Subchapter J, Registration of Corrective Action Specialists and Project
Managers for Product Storage Tank Remediation Projects:
Subchapter J amendments are proposed to streamline the rules and to improve
clarity and readability.
Section 334.452, Exemptions from Subchapter J, is proposed to be amended.
Section 334.452(a)(1) deletes "Statutory" to be consistent with the proposed
change to the title of the referenced section. Section 334.452(a)(2) is proposed
to be amended to delete "Commission" to be consistent with the proposed change
to the title of the referenced section. Section 334.452(d)(2)(A) is proposed
to be amended to change "TWC" to "agency" and change "TWC" to "agency,." These
amendments are also necessary because the Texas Water Commission was merged
into this agency. Section 334.452(d)(2)(C) is proposed to be amended to add
language to refer to "air program regulations" rather than "applicable Texas
Air Control Board regulations." These amendments are necessary because the
Texas Air Control Board was merged into the TNRCC. Section 334.452(h) is proposed
to be amended to replace "commission" with "agency." Section 334.452(i) is
proposed to be amended by deleting "On or after September 1, 1995, a qualified"
because the original implementation date is no longer needed, by deleting
and adding various terms applicable to professional engineers as necessary
to comply with the language of the most recent version of the Engineering
Practice Act; by replacing "commission" with "agency"; by reflecting the current
name of the Texas Board of Professional Engineers, by referencing the proposed
new §334.452(j) that contains enforcement provisions moved from Subchapter
A, §334.11(c)(3)(A), and by deleting two references to §334.11(c)(3)(A)
that is proposed to be repealed and its language moved to proposed new §334.452(j)
of this section. Section 334.452(j) is proposed to be added to reflect the
movement of existing enforcement language applicable to professional engineers,
who also hold registration with the TNRCC as corrective action project managers,
from Subchapter A, §334.11(c)(3)(A)(ii), which is proposed for repeal,
to this section, to amend that existing language by changing various terminology
applicable to professional engineers or to the Texas Board of Professional
Engineers as necessary to comply with the language of the most recent version
of the Engineering Practice Act, and to delete a previous cross reference
in the repealed language to this subchapter.
Section 334.453, General Requirements and Prohibitions, is proposed to
be amended. Section 334.453(a)(1) is proposed to be amended to delete "offered
to be" and ", and performed by" to leaving just "performed by" for easier
readability and to delete the unnecessary word "natural." Section 334.453(a)(2)
is proposed to be amended to delete the unnecessary word "natural." Section
334.453(a)(4) is proposed to be amended to replace "commission" with "agency."
Also, the word "business" is proposed to be deleted because a business representative
is not always authorized to sign for the company for all purposes. Section
334.453(b)(1)(A) is proposed to be amended to delete the unnecessary words
"offer to"; to correct the word "service" to "services"; and to insert the
word "performing" in place of "offering to perform" for easier reading. Section
334.453(b)(1)(E)(ii) is proposed to be amended to remove the word "interim"
to refer to the new name of Subchapter H. Section 334.453(b)(2)(C) is proposed
to be amended to delete the unnecessary word "natural." Section 334.453(b)(2)(D)
is proposed to be amended to replace "commission" with "agency." Section 334.453(c)
is proposed to be amended to remove the reference to repealed §334.11
and replace it with a reference to "Chapter 70 of this title (relating to
Enforcement) and Texas Water Code, Chapter 7." Section 334.453(e) is proposed
to be amended to replace "commission" with "agency."
Section 334.455, Notice to Owner or Operator, is proposed to be amended.
Section 334.455(c)(5) is proposed to be amended by deleting the word "Interim"
to refer to the new name of Subchapter H and by replacing "TWC" with "agency"
because "TWC" is now an obsolete acronym for this agency. Section 334.455(f)(1)
is proposed to be amended by changing "by" to "with" to clarify that the agency
accepts the registration and is not the registrant, and by changing "Texas
Water Commission" to "agency" because the Texas Water Commission was merged
into this agency. Section 334.455(f)(2) is proposed to be amended by replacing
"Texas Water Commission's" with "agency's" because the Texas Water Commission
was merged into this agency and by replacing "commission" with "agency."
Section 334.456, Application for Certificate of Registration for Corrective
Action Specialist, is proposed to be amended. Section 334.456(2)(B) is proposed
to be amended to change "the business" to "an authorized" because a business
representative is not always authorized to sign for the company for all purposes
and to add ", when the applicant is not an actual individual" for greater
clarity. Section 334.456(2)(C) is proposed to be amended to change "business"
to "authorized" for greater clarity and consistency with the previously proposed
change. Section 334.456(2)(D) is proposed to be amended to change "financial
assurance, including" to "documentation of" to avoid possible confusion of
these requirements with financial assurance requirements found at Chapter
37. Section 334.456(2)(D)(i) is proposed to be amended to replace the word
"evidence" with the word "proof" for greater clarity and to replace "Texas
Water Commission, Petroleum Storage Tank Division" with "Texas Natural Resource
Conservation Commission" because the Texas Water Commission was merged into
the TNRCC. Section 334.456(2)(D)(ii)(I) is proposed to be amended to add "(balance
sheet)" to clarify the type of financial statement required, and to delete
"business" to clarify that the signature must be by a person authorized to
sign for the company. Section 334.456(2)(D)(ii)(II) is proposed to be amended
to delete a vague requirement on "other evidence of financial assurance which
is determined by the executive director to be sufficient for the purposes
of this section" and replace it with the more specific requirement for "a
letter from a certified public accountant, who is not employed by the applicant
or does not receive payment from the applicant on a regular basis, verifying
the applicant's net worth to be not less than $25,000." Section 334.456(2)(E)(ii)
is proposed to be amended by deleting "; or" and inserting a period in its
place. Section 334.456(2)(E)(iii),which states "other documentation of quality
of performance which is determined by the executive director to be sufficient,
pursuant to this section." is proposed to be deleted because no other evidence
of quality of performance is acceptable. Section 334.456(3) is proposed to
be amended to delete the requirement that the application be "notarized" as
an unnecessary requirement.
Section 334.457, Application for Certificate of Registration for Corrective
Action Project Manager, is proposed to be amended. Section 334.457(2)(B)(iii),
which states "other documentation of quality of performance which is determined
by the executive director to be sufficient, pursuant to this section." is
proposed to be deleted because no other evidence of quality of performance
is acceptable. Section 334.457(3)(A) is proposed to be amended to replace
"commission" with "agency." Section 334.457(3)(A)(i) was inadvertently deleted
in a previous rulemaking and is being added back, without change, as new language
in this proposal. Section 334.457(3)(A)(ii) was also inadvertently deleted
in a previous rulemaking and is being added back as new language in this proposal,
modifying the former language applicable to professional engineers to comply
with the language of the most recent version of the Engineering Practice Act;
removing unnecessary language requiring executive director approval, given
the requirements stated in §334.452(i); adding the word "requirement"
and replacing "may be" with "is" to provide clarification and to be more specific;
and adding a reference to §334.452(i) for clarification. Section 334.457(3)(B)
is proposed to be amended to replace "commission" with "agency." Section 334.457(4)
is proposed to delete the requirement for the application to be "notarized"
as an unnecessary requirement. Section §334.457(6) is proposed to add
the requirement to take the examination for the project manager certification
within 120 days after approval of the application and to add the option to
reapply if an application is denied. The requirement to take the examination
within 120 days of application will allow the commission not to retain application
records for a longer period of time; and it will still allow the applicant
a reasonable amount of time within which to take the examination. Also, if
an application is denied, an applicant should have the option to reapply.
Section 334.458, Review and Issuance of Certificates of Registration, is
proposed to be amended. Section 334.458(a) is proposed to be amended to delete
"administratively" to clarify that an application is complete when all requirements
have been met, not just the administrative requirements in the application
form. Section 334.458(b) is proposed to be amended to delete "administrative"
and "administratively" to clarify that an application is complete when all
requirements have been met, not just the administrative requirements within
the application form. Also, this subsection is proposed to be amended to remove
gender specific language by replacing "he determines" with "it is determined";
"he shall inform" with "shall be informed"; and "he shall cease his review"
and "return" with "review will cease" and "will be returned." In addition,
this subsection is proposed to be amended to remove "without prejudice" because
it is legally inappropriate in this context and to add a reference to §334.457
for greater clarity. Section 334.458(c)(1) is proposed to be amended to replace
the unnecessary gender word "his" with the word "the" and to delete the word
"administratively" to clarify that an application is complete only when all
requirements have been met, not just the administrative requirements within
the application form. Section 334.458(c)(1) is also proposed to be amended
to add "including payment of the applicable fees" to clarify that payment
of fees is a requirement for a complete application. Section 334.458(d) is
proposed to be amended to delete the word "annually"on certificate of registration
renewal because registration renewal is proposed to be amended from annually
to every two years in the referenced §334.460, Renewal of Certificate
of Registration for Corrective Action Specialist and Registration for Corrective
Action Project Managers.
Section 334.459, Continuing Education Requirements for Corrective Action
Project Managers, is proposed to be amended. Section 334.459(a) is proposed
to be amended to add an exception to the requirement applicable to professional
engineers and to provide a reference to §334.452(i), to replace the annual
requirement for 16 hours of continuing education with the 32 hours that will
be required if the registration is renewed every two years as proposed, to
remove unnecessary words "in order", and to delete the unnecessary words "each
time it is due for renewal." Also in §334.459(a), a new second sentence
is added in parentheses to clarify that sixteen hours of education are required
for annual renewals during the transition to the two year renewal. Also in §334.459(a),
the unnecessary words "In order to" are proposed to be deleted; "16" is proposed
to be deleted to comport with previous changes in this subchapter; "within
the 12 months immediately preceding" is proposed to be clarified with the
words "prior to;" and "he submits an administratively complete application
for renewal" is proposed to be clarified with "a completed application for
renewal is submitted" because the word "he" is gender specific and an applicant
must submit more than the "administrative" information before the application
is considered complete. Section 334.459(b) is proposed to be amended to remove
the unnecessary words "In order to" and replace them with "To" at the beginning
of the first sentence. Section 334.459(e) is proposed to be amended to add
the wording "required continuing education instruction" to replace "16", which
would be incorrect with the proposed 32 hours of continuing education for
a two-year period. Section 334.459(f) is proposed to be amended to correct
the words "certificate" to "certificates" because more than one certificate
may be required to document training, and to delete "each year" because a
two-year registration renewal is being proposed in §334.460.
Section 334.460, Renewal of Certificate of Registration for Corrective
Action Specialist and Corrective Action Project Manager, is proposed to be
amended. Section 334.460(a) is proposed to be amended to add two new sentences
and a lead-in phrase to the third as follows: "As of the effective date of
this rule, the agency will transition to renewal of certificates of registration
on a two-year basis. For one year after the effective date of this subsection,
existing certificates with even registration numbers will be renewed for one
year and certificates with odd registration numbers will be renewed for two
years. Following this designated period, each." This staggered two-year renewal
period will add efficiency to the program by reducing the number of renewals
that have to be processed each year by one-half. The last sentence of §334.460(a)
is also proposed to be amended to replace the "one year" terminology with
"two years" and to change the "renewal" to "expiration" date for greater clarity.
Section 334.460(d) is proposed to be deleted and replaced with "The renewal
application must be accompanied by all information needed for the application
to be complete, including the required financial documentation, and any other
information necessary for the agency to complete the renewal process." This
amendment is proposed as part of breaking §334.460(d) into two new paragraphs
separating the requirements for an application to be considered complete for
corrective action specialists from those for corrective action project managers
for greater clarity. The requirement to resubmit financial information in
the language proposed for deletion was replaced with a certification that
the company has continued to meet the financial requirements in new §334.460(d)(1)
to simplify and reduce the paper work burden on the regulated community. In §334.460(d)(2),
the previous provision which allowed an applicant for project manager registration
to reapply for certification without resubmitting the required documentation
is not included. This allows the commission not to retain files of original
applications indefinitely. Section 334.460(f) is proposed to have its current
language deleted and replaced with new language to clarify the status of registration
when the renewal application is received, or is not received, 30 days prior
to expiration of the current registration. This amendment is proposed as part
of breaking §334.460(f) into two new paragraphs for greater clarity.
Section 334.460(f)(1) clarifies how applicants will not be adversely affected
by processing times that go beyond the expiration date, as long as the application
is properly and timely filed. Section 334.460(f)(2) clarifies that provisional
renewal will not be in effect for those applications that are not properly
and timely filed. Section 334.460(g), is proposed to be amended to delete
"does not apply" and replace it with "has not met all requirements" for renewal,
to delete the specific gender pronoun "his," to change the one year from the
expiration date to complete a renewal application to 30 days in conformance
with the change in §334.460(f)(2), to change the specific gender pronoun
phrase "date his previous expiration expires, he must submit" to "expiration
date," and to add "must be resubmitted" at the end of the sentence. The second
sentence is proposed to be amended to delete "does not apply" and replace
it with "has not met all requirements", to delete the specific gender pronoun
"his", to change the one year from the expiration date to complete a renewal
application to 30 days in conformance with the change in §334.460(f)(2),
to change the specific gender pronoun phrase "date his previous expiration
expires, he must" to "expiration date", and to add "must be resubmitted" at
the end of the sentence. These amendments eliminate specific gender pronouns
and allow the agency to retain records of expired licenses for 30 days rather
than for an entire year to be consistent with other TNRCC certification programs.
Section 334.460(h) is proposed to be amended to delete "certificate of registration"
and replace it with "documentation of approval" to allow the agency greater
flexibility on the type of documentation issued.
Section 334.461, Denial of Certificate of Registration, is proposed to
be amended. Section 334.461(1) is proposed to be amended to add "and fees"
to clarify that registration can be denied when an application for registration
is submitted without the required fees, to replace "he is seeking" with "being
sought" to eliminate the gender specific language, and to remove "without
prejudice" because it is legally inappropriate in this context. Section 334.461(2)(B)
is proposed to delete the word "Interim" to refer to the new title of Subchapter
H. The "or" at the end of §334.461(5) is proposed to be deleted so that
newly proposed §334.461(6) and (7) can be inserted. Section 334.461(6)
is proposed to be added for denial of renewal because of applicant default
on loans guaranteed by the Texas Guaranteed Student Loan Corporation. This
is added in accordance with the Texas Education Code, Chapter 57. Section
334.461(7) is proposed to be added for denial of renewal because an applicant
is delinquent on child support payments. This is added in accordance with
the Texas Family Code, Chapter 232. Section 334.461(6) is proposed to be renumbered
to allow for the newly added paragraphs.
Section 334.462, Other Requirements, is proposed to be amended. Section
334.462(a)(4) is proposed to be amended to replace "business" with "authorized"
and to add a cross reference to the rule requirement for an authorized representative
to sign an application for registration. This amendment is proposed because
a business representative may not be the authorized person to sign on behalf
of the company for all purposes, and also to be consistent with the previously
proposed similar amendments. Section 334.462(b) is proposed to be amended
to replace "responsibility" with "information" to avoid possible confusion
of this requirement with the financial assurance requirements in Chapter 37.
Also, "during which" is added and "such" is deleted to improve readability.
Section 334.462(c) is proposed to be amended to add a reminder at the beginning
of the first sentence about the exemption of professional engineers from the
project manager continuing education requirement and to provide a reference
to §334.452(i). Also in this subsection, deletion of the "16" is proposed
to conform with the proposed change from one-year to two-year registration
renewal in the referenced §334.459. A further amendment of this subsection
is proposed to add the word "requirement" to clarify that continuing education
is not optional. Section 334.462(d) is proposed to be amended to delete "Texas
Air Control Board" and to change "Texas Water Commission" to "Texas Natural
Resource Conservation Commission" because the Texas Air Control Board and
the Texas Water Commission have been merged into the Texas Natural Resource
Conservation Commission.
Section 334.463, Grounds for Revocation or Suspension of Certificate of
Registration, is proposed to be amended. Section 334.463(a)(1) is proposed
to be amended to replace the gender specific word "he" with "the corrective
action specialist." Section 334.463(a)(1)(A) and (C) is proposed to be amended
to delete the "or" at the end and to place the "or" at the end of §334.463(a)(1)(D)
for proper rule formatting. Section 334.463(a)(1)(B) is proposed to be amended
to remove the word "Interim" to refer to the new proposed title of Subchapter
H. In §334.463(a)(1)(D), the word "this" replaces "the" for proper rule
formatting. In §334.463(a)(1)(E), (b)(1)(E), and (4), "agency" is substituted
for "commission." Section 334.463(a)(3) and (5) is proposed to be amended
to change the gender specific word "his" to "the" and add "of a corrective
action specialist,." Section 334.463(b)(1) is proposed to be amended to replace
the gender specific word "he" with "the corrective action project manager."
Section 334.463(b)(1)(A) and (C)is proposed to be amended to delete the "or"
at the end and to place the "or" at the end of §334.463(b)(1)(D) for
proper rule formatting. In §334.463(b)(1)(D), the word "this" replaces
"the" for proper rule formatting. Section 334.463(b)(2) is proposed to be
amended to change the gender specific word "his" to "the" and add "of a corrective
action project manager." Section 334.463(b)(3) is proposed to be amended to
change the gender specific word "his" to "the" and add "of a corrective action
project manager."
Section 334.465, Procedures for Revocation or Suspension of a Certificate
of Registration, is proposed to be amended. Section 334.465(b) is proposed
to be amended by updating the cross reference from Chapter "337" to Chapter
"70." Section 334.465(c)(1) is proposed to be amended to update the example
suspension times to be consistent with other agency certification programs
(as part of an ongoing commissioners' directive to achieve consistency among
TNRCC programs wherever possible). Section 334.465(d) is proposed to be amended
to replace "commission" with "agency."
Section 334.466, Reinstatement of a Certificate of Registration, is proposed
to be amended. Section 334.466(a) is proposed to be amended to replace "executive
director" with "agency." Section 334.466(c) is proposed to be amended to add
", including a professional engineer," as a clarification to include professional
engineers in the requirements for reinstatement after revocation of a certificate
of registration, to replace "commission" with "agency", to substitute "may"
for "must" because a holder who has a certificate revoked has the option of
not reapplying for reinstatement, and to add the phrase "Following the period
of revocation" because it clarifies when that applicant can reapply for a
certificate of registration after revocation.
Section 334.467, Fee Assessments for Certificates of Registration, is proposed
to be amended. Section 334.467(a) is proposed to be amended to remove the
capitalization from "Corrective Action Specialists" for consistency with the
rest of the rule and to delete "on or after September 1, 1995" because there
are substantive changes now being made to the rule. Section 334.467(a)(1)
is proposed to be amended to change the initial application fee for a corrective
action specialist from $200 to $400 to reflect the new fee that would be appropriate
for the proposed two-year registration. Section 334.467(a)(2) is proposed
to be amended to delete the word "annual" and "-$175;" to lead into a new
breakdown of the corrective action specialist renewal fees during the transition
from the one to two-year renewal. Section 334.467(a)(2)(A) is proposed to
be added to show the current one-year $175 renewal fee, which will be used
by half of the applicants during the transition year. Section 334.467(a)(2)(B)
is proposed to be added to show the new two-year renewal fee of $350 that
will be paid by half of the applicants during the transition year and all
of the applicants after that. Section 334.467(a)(3) is proposed to be amended
to replace a semicolon with a colon at the end and to delete the reference
"-assessed in accordance with Chapter 12 of this title (relating to Payment
of Fees)" because the renewal fees are now being proposed to be added to this
subsection. Section 334.467(a)(3)(A) is proposed to add the one-year late
renewal fee of $25 to this section for use during the transition from one-year
to two-year renewal. Section 334.467(a)(3)(B) is proposed to add the two-year
late renewal fee of $50 to this section for use by half of the applicants
the first year and all of the applicants thereafter. Section 334.467(b) is
proposed to be amended to remove capitalization from "Corrective Action Project"
for consistency with the rest of the rule and to replace the words "registered
professional engineers" with "professional engineers who are currently duly
licensed to practice engineering in the State of Texas," to comply with the
language of the most recent version of the Engineering Practice Act. Section
334.467(b)(1) is proposed to be amended to substitute "$250, includes the
initial $50 examination fee" for the former one-year "$100" initial application
fee. This amendment is proposed to change the initial application fee for
a project manager to reflect the new two-year registration period and show
that the $50 exam fee is included. Section 334.467(b)(2) is proposed to be
amended to add "(required for retakes)" to clarify that this $50 fee is required
for exam retakes only. Section 334.467(b)(3) is proposed to be amended to
delete the "annual" and "-$75;" to lead into a new breakdown of the corrective
action project manager renewal fees during the transition from the one-year
to two-year renewal. Section 334.467(b)(3)(A) is proposed to show the one-year
renewal fee of $75 dollars that will have to be used by one-half of the applicants
during the first year transition from a one-year renewal to a two-year renewal.
Section 334.467(b)(3)(B) is proposed to add the new two-year renewal fee of
$150 that will be used by half of the applicants during the first transition
year and then by all of the applicants after the first year. Section 334.467(b)(4)
is proposed to be amended to delete the reference "-assessed in accordance
with Chapter 12 of this title;" because the late renewal fees are proposed
to be added to this subsection. Section 334.467(b)(4)(A) is proposed to add
the one-year late renewal fee of $25 for use by half of the applicants during
the first year transition year from a one-year to a two-year registration
period. Section 334.467(b)(4)(B) is proposed to add the new two-year late
renewal fee of $50. This fee will be used by half of the applicants during
the transition year and then everyone thereafter. Section 334.467(c) is proposed
to be amended to replace "commission" with "agency."
Subchapter K, Storage, Treatment, and Reuse Procedures for Petroleum-Substance
Contaminated Soil
Section 334.481, Definitions, is proposed to be amended. The following
was added, "Words used in more than one subchapter are defined in Subchapter
A of this chapter (relating to General Provisions). Words widely used in more
than one chapter are defined in Chapter 3 of this title (relating to Definitions).",
to tell the reader where to find meaning of words that are not defined in
this section. The definition of "Aboveground storage tank" is proposed to
be deleted to eliminate redundancy because this term is defined in Subchapter
A. Subsequent definitions are renumbered to account for this deletion and
subsequent deletions wherever necessary. The definitions of "Activities associated
with the exploration, development, and production of oil or gas or geothermal
resources" and "Active geologic processes" are proposed to be deleted because
they are not used in this subchapter. The definition of "Application" is proposed
to be deleted as unnecessary. The definition of "Areal expansion of an existing
facility" is proposed to be deleted as the term is no longer needed and is
deemed unnecessary. The definition of "Authorized" is proposed to be amended
to replace "executive director" with "agency." The definition of "Class B
facility" is proposed to be amended to replace "shall" with "must" to improve
readability. The definition of "Clean fill standard" is proposed to be amended
to delete ", e.g. soil cleaned to less than .5 mg/kg for each constituent
of BTEX, and less than 10 mg/kg for TPH" because the contaminant levels that
define "clean fill" are proposed in §334.503 and are not needed in a
definition. The definition of "Executive Director" is proposed to be deleted
to eliminate redundancy because this term is defined in Chapter 3 of this
title. The definition of "Existing facility" is proposed to be deleted because
the term is unnecessary. The definition of "Final closure" is proposed to
be amended to delete "so that waste management activities are no longer conducted
at the facility unless subject to the provisions of this title" because this
language is not needed. The definition number of "Leaking petroleum storage
tank (LPST) site" is proposed to be deleted to eliminate redundancy because
this term is proposed to be defined in Subchapter A. The definition of "Management"
is proposed to be deleted because it is unnecessary. The definition of "Maximum
allowable inventory" is proposed to be amended to delete the term "definition"
to be consistent with the previous change to the "Clean fill standard" definition
that removed the criteria (concentration limits) from that definition. The
definitions of "Operator" and "Owner" are proposed to be deleted to eliminate
redundancy because these terms are defined in Subchapter A. The definition
of "PST-Waste Manifest" is proposed to be amended to replace "executive director"
with "agency" and to delete "in order" to improve readability by removal of
unnecessary words. The definition of "Person" is proposed to be deleted because
this term is defined in Subchapter A. The definition of "Petroleum substance"
is also proposed to be deleted to eliminate redundancy because this term is
defined in Subchapter A. The definition of "Sole-source aquifer" is proposed
to be amended to delete the phrase "of 1974" as unecessary to the citation,
and to delete the last two sentences: "The Edwards Aquifer has been designated
a sole-source aquifer by the United States Environmental Protection Agency.
The Edwards Aquifer Recharge and Transition Zones are specifically those areas
delineated on maps in the offices of the executive director." This amendment
is proposed to clarify that the Edwards Aquifer is not the only sole-source
aquifer. The definition of "Treatment" is proposed to be amended to delete
the unnecessary words "in order" to improve readability and improve clarity
and to delete the last sentence "The term treatment does not include the reduction
of contaminant levels by dilution." The definition of "Underground storage
tank" is proposed to be deleted to eliminate redundancy because this term
is defined in Subchapter A.
Section 334.482, General Prohibitions, is proposed to be amended. The title
of the section is proposed to be amended by replacing the word "Prohibitions"
with "Requirements" to better reflect the contents of the section. Section
334.482(b) language is proposed to be deleted and replaced by new language
which, along with new §334.482(c)-(f), is proposed to be added to clarify
how a variance from any of the requirements in this subchapter may be obtained.
The new language makes it clear who may obtain a variance, what procedures
they must follow to request a variance, the role of the agency in the review
process, and the standard of that review, the documentation that should be
submitted to support the request, recordkeeping requirements, and the obligations
of a person who has had a variance approved.
Section 334.484, Registration Required for Petroleum-Substance Waste Storage
or Treatment Facilities, is proposed to be amended. Section 334.484(a) is
proposed to be amended to insert "December 27, 1996" in place of "the effective
date of these rules" to preserve and maintain the original meaning of the
rules. Section 334.484(b) is proposed to be amended to replace "executive
director" with "agency." Section 334.484(c) is proposed to be amended to insert
"December 27, 1996" in place of "the effective date of these rules" to preserve
and maintain the original meaning of the rules; to replace "executive director"
and "commission" with "agency"; and to replace the term "shall" with the term
"must" to improve readability. Section 334.484(c)(21) is proposed to be amended
to replace "executive director" with "agency"; to insert "agency's cental
office" in place of "executive director of the commission, and a copy shall
be submitted to the commission's field office in the district where the proposed
facility will be located" to clarify where the application should be submitted
and to eliminate the need to send a copy to the region office. Section 334.484(d)
is proposed to be amended to replace "shall" with "must" to improve readability.
Section 334.484(e) is proposed to be amended to replace "executive director"
with "agency." Section 334.484(f) is proposed to be amended to replace "shall"
with "must" to improve readability; to replace "executive director's" with
"agency's"; and to delete "and to the appropriate region office" to eliminate
the need to submit a copy of the information to the region office. Section
334.484(h) is proposed to be amended to replace "executive director" with
"agency."
Section 334.485, Suspension or Revocation of Registration, is proposed
to be amended. Section 334.485(a)(5) is proposed to be amended to replace
"executive director" with "agency." Section 334.485(b) is proposed to be amended
to replace "he shall" with "the executive director will" to remove a gender
specific word and to improve readability. Section 334.485(b)(1) and (2) is
proposed to be amended to replace "shall" with "will" to improve readability;
and §334.485(b)(3) is proposed to be amended to replace "shall" with
"must" to improve readability.
Section 334.486, Denial of Application for Registration or Renewal, is
proposed to be amended. The subsection designation "(a)" is proposed to be
deleted because subsection (b) is proposed to be deleted; and "executive director"
is proposed to be replaced with "agency." Section 334.486(3) is proposed to
be amended to insert at the end "under Chapter 37, Subchapter K, of this title
(relating to Financial Assurance Requirements for Class A or B Petroleum-Substance
Contaminated Soil Storage, Treatment, and Reuse Facilities)" to reflect the
new location of the financial assurance requirements for these facilities.
Former §334.486(b) is proposed to be deleted because its language is
legally inappropriate in this context.
Section 334.487, Renewal of Registration, is proposed to be amended. Section
334.487(b) is proposed to be amended to insert "agency will" in place of "commission
shall." Section 334.487(c) is proposed to be amended to insert "agency will"
in place of "executive director shall." Section 334.487(d) is proposed to
be amended to insert "agency" in place of "executive director." Section 334.487(e)
is proposed to be amended to insert "agency will" in place of "executive director
shall" and to improve readability.
Section 334.488, Authorization for Class C and Class D Facilities, is proposed
to be amended. This section is proposed to be amended to replace "Executive
director" with "Agency."
Section 334.490, Notification and Mobilization Requirements for Class B
Facilities, is proposed to be amended. Section 334.490(1) is proposed to be
amended to replace "commission region field" with "agency regional", to use
the latest designation for regional offices. Section 334.490(3)-(5) is proposed
to be amended to replace "executive director" with "agency." Section 334.490(6)
is proposed to be amended to replace "commission" with "agency."
Section 334.492, Public Notice, is proposed to be amended. Section 334.492(2)
is proposed to be amended to replace "executive director" with "agency." Section
334.492(2)(F) is proposed to be amended to replace "Texas Natural Resource
Conservation Commission" with "agency." Section 334.492(4)(E) is proposed
to be amended to replace "executive director" with "agency." Section 334.492(5)
is proposed to be amended to replace "commission's Austin" and "commission
region" with "agency's central" and "agency regional", respectively, to use
current agency terminology with regard to the central and regional offices.
Section 334.493, Public Meetings for Class A Facilities, is proposed to
be amended. Section 334.493(a) is proposed to be amended to replace "executive
director" with "agency" and to replace the gender specific word "his" with
"its." Section 334.493(b) is proposed to be amended to replace "executive
director" with "agency" and to replace "his or her" with "its" to remove gender
specific terminology. Section 334.493(c) is proposed to be amended to replace
"commission" with "agency" and to replace "executive director" with "agency."
Section 334.493(d) is proposed to be amended to replace "executive director"
with "agency."
Section 334.494, Closure and Facility Expansion, is proposed to be amended
to replace "executive director" with "agency" to replace "executive director's"
with "agency's" and to replace "region field" with "regional" to use current
agency terminology.
Section 334.495, Location Standards for Class A Petroleum-Substance Waste
Storage or Treatment Facilities, is proposed to be amended. Section 334.495(a)
is proposed to be amended to replace "commission shall" with "agency will"
and to improve readability. Section 334.495(b)(5) is proposed to be amended
to replace "executive director" with "agency." Section 334.495(c) is proposed
to be amended to replace "executive director" with "agency", and to replace
"the Texas Natural Resource Conservation Commission" with "this agency" to
improve readability. Section 334.495(d) is proposed to be amended to replace
"executive director" with "agency", and to replace "his" and "he" with "its"
and "it", respectively, to improve readability.
Section 334.496, Shipping Procedures Applicable to Generators of Petroleum-Substance
Waste, is proposed to be amended. Section 334.496(a) is proposed to be amended
to delete "in order" to remove some unnecessary words to improve readability.
Section 334.496(a)(2) is proposed to be amended to replace "executive director"
with "agency."
Section 334.497, Recordkeeping and Reporting Procedures Applicable to Generators,
is proposed to be amended. Section 334.497(1) is proposed to be amended to
replace "commission" with "agency." Section 334.497(5) and (6) is proposed
to be amended to replace "executive director" with "agency."
Section 334.499, Shipping Requirements Applicable to Owners or Operators
of Storage, Treatment, or Disposal Facilities, is proposed to be amended.
Section 334.499(b)(2), (c)(2)(D), (3), and (d) is proposed to be amended to
replace "executive director" with "agency."
Section 334.500, Recordkeeping Requirements Applicable to Owners or Operators
of Storage, Treatment, or Disposal Facilities, is proposed to be amended.
Section 334.500(a)(2) is proposed to be amended to replace "commission" with
"agency"; §334.500(a)(3) is proposed to be amended to insert "agency's
central office" in place of "executive director and to the commission's appropriate
region office", to eliminate the requirement to send duplicate information
to the agency's regional office. Section 334.500(b), (d), and (e)(7) is proposed
to be amended to replace "executive director" with "agency."
Section 334.501, Additional Reports, is proposed to be amended to replace
"executive director" with "agency."
Section 334.502, Design and Operating Requirements of Stockpiles and Land
Surface Treatment Units, is proposed to be amended. Section 334.502(a)(2)
and (f) is proposed to be amended to replace "executive director" with "agency."
Section 334.503, Reuse of Petroleum-Substance Waste, is proposed to be
amended. Section 334.503(b) is proposed to be amended in several places to
add back requirements on reuse of petroleum-substance waste that were mistakenly
deleted with the adoption of new Chapter 350, Texas Risk Reduction Program,
and instead should have been retained in this subchapter until implementation
of the new Texas Risk Reduction Program on September 1, 2003. Section 334.503(b)
is proposed to be amended to replace "shall" with "will" and "shall" with
"must" to improve readability; to replace "executive director" with "agency";
and to delete the last wording "This information that shall be maintained
under §334.503(c)(3)(A)-(C) of this section includes, but is not limited
to:" to facilitate the addition of new §334.50(c)(1) and (2) in this
section. In §334.503(b)(1) is proposed to provide the requirements for
maintaining information after implementation of the Texas Risk Reduction Program
on these wastes on September 1, 2003; and former §334.503(b)(1)-(7) is
proposed to be renumbered to subparagraphs (A)-(G) to accommodate this change.
Section 334.503(b)(2) is proposed to specify recordkeeping and reporting requirements
before implementation of the Texas Risk Reduction Program. Section 334.503(c)(1)
is proposed to provide reuse approval requirements for petroleum-substance
waste reuse prior to implementation of the Texas Risk Reduction Program on
these wastes; former §334.503(c)(1) and (2) is proposed to be renumbered
to accommodate the insertion of new paragraph (1). Section 334.503(c), newly
renumbered paragraph (2) is proposed to be amended to replace "executive director"
with "agency." Section 334.503(c), newly renumbered §334.503(c)(3)(A)
is proposed to be reorganized by deleting the sentences "The concentration
of benzene, toluene, ethylbenzene, and total xylenes, or any other relevant
chemicals of concern derived from the petroleum substance waste shall not
exceed levels which are protective of human health and the environment as
generally determined in accordance with Chapter 350 of this title (relating
to Texas Risk Reduction Program Rule), and shall not be at such concentrations
which compromises the integrity of the cold-mix asphalt product. Authorization
for the facility shall also be obtained from all other appropriate federal,
state, or local governing agencies. Authorization from the owner of the road
or other area where the asphalt is to be utilized shall be obtained prior
to laying the asphalt." In §334.503(c)(3)(A), two new clauses are proposed
to add the criteria for reuse in cold-mix-emulsion before and after implementation
of the Texas Risk Reduction Program on September 1, 2003. Section 334.503(c)(3)(B)
is proposed to be reorganized by deleting the last three sentences and by
creating two new clauses to provide the requirements for reuse in hot-mix
asphalt before and after implementation of the Texas Risk Reduction Program
on September 1, 2003. Section 334.503(c)(3)(C) is proposed to be reorganized
by deleting the last three sentences and creating two new clauses to incorporate
the requirements for reuse of petroleum-substance wastes in road base or parking
lot stabilized base before and after implementation of the Texas Risk Reduction
Program on September 1, 2003. Section 334.503(c)(3)(D) language is proposed
to be deleted because §334.482(b) already states that a variance may
be sought for requirements under this subchapter. Section 334.503(c)(3)(D)
is proposed to partially reinstate language for reuse of petroleum-substance
wastes in road base or parking lot stabilized base when the base will not
be covered with asphalt or concrete (similar language was accidently deleted
in the 1999 rulemaking which promulgated the Texas Risk Reduction Program
rules), and in addition, establish a procedure that must be followed for the
reuse of contaminated soil in road base or parking lot stabilized base prior
to the implementation of the Texas Risk Reduction Program. Section 334.503(c)(3)(E)
is proposed to partially reinstate language to determine when petroleum-substance
wastes will be considered clean enough to be used as fill, and also, to establish
a procedure that must be followed for the reuse of contaminated soil to be
considered "clean fill" prior to the implementation of the Texas Risk Reduction
Program on these wastes. In addition, language has been added to clarify that
tankhold bedding and backfill for tank systems must follow the requirements
of §334.46(a)(5) of this title (relating to Installation Requirements
for New Tank Systems).
Section 334.504, Contaminant Assessment Program and Corrective Action,
is proposed to be amended. Section 334.504(a)-(c) is proposed to be amended
to insert "agency" in place of "executive director." Section 334.504(d) is
proposed to be amended to insert "agency" in place of "executive director."
Section 334.504(e) is proposed to be amended to insert "agency" in place of
"executive director" and to insert "agency's central" in place of "commission's
Austin" and to insert "agency regional" in place of "commission region" to
incorporate current agency terminology.
Section 334.506, Contingency Plan, is proposed to be amended to replace
"executive director" with "agency."
Section 334.507, Emergency Procedures, is proposed to be amended. Section
334.507(e)(2) is proposed to be amended to replace "local Texas Natural Resource
Conservation Commission" with "agency" to improve rule readability. Section
334.507(j) and (k) is proposed to be amended to replace "executive director"
with "agency."
Section 334.508, Closure Requirements Applicable to Class A and Class B
Facilities, is proposed to be amended. Section 334.508(a), (c)(1), and (d)
is proposed to be amended to replace "executive director" with "agency." Section
334.508(g) is proposed to be amended to replace "shall" with "must" to improve
readability.
Subchapter L, Overpayment Prevention:
Subchapter L amendments are proposed to streamline the rules and to improve
clarity and readability.
Section 334.531, Responsibility of Recipients of Money from the PSTR Fund
and Persons Paid by Recipients of Money from the Petroleum Storage Tank Remediation
Fund, is proposed to be amended. Section 334.531(a) is proposed to be amended
to change "executive director" to "agency", and to delete "necessity of" to
clarify that the work performed will be the subject of audit. Section 334.531(c)
is proposed to be added to explain that failure to provide documentation or
information requested during the audit may result in denial of the costs.
The subsequent subsection was renumbered due to the addition of new §334.531(c).
Newly renumbered §334.531(d) is proposed to be amended to change "executive
director" to "agency."
Section 334.532, Payments, is proposed to be amended. Section 334.532(a)
is proposed to be amended to change "executive director" to "agency." Section
334.532(b) is proposed to be changed to update the title of the cross reference
to section 334.310 and to change "Texas Natural Resource Conservation Commission"
to "agency."
Section 334.533, Audits, is proposed to be amended. The first sentence
of this section is proposed to be deleted, and the second sentence is proposed
to be amended to delete "generally accepted" and to add a reference to the
statutory auditing standards at the end to more closely mirror the statutory
audit requirements. Language in §334.533 is also proposed to be deleted
to more closely mirror statutory audit requirements. Section 334.533 is also
proposed to be amended to change the word "shall" to "may" and delete "a minimum"
to add flexibility to the audit process within the requirements of the statute
(TWC, §26.35735). Section 334.533(4) of this section is proposed to be
amended to add a cross reference to §334.560, Reimbursable Cost Guidelines,
and §334.309, Reimbursable Cost, and to delete the phrase "as those terms
are defined by this chapter" because it is no longer necessary with the added
cross references.
Section 334.534, Notice of Overpayment, is proposed to be amended. Section
334.534(a) is proposed to be amended to change "executive director" to "agency."
Section 334.534(d) is proposed to be amended to delete a specific address
that might change and instead specify the use of the address on the notice
of overpayment. Section 334.534(e) is proposed to be amended to change "executive
director" to "agency."
Section 334.535, Objections to the Notice of Overpayment and Formal Petition
for Hearing, is proposed to be amended to change the word "shall" to "must"
because its usage is not necessary to make rule requirements legally enforceable.
Section 334.537, Failure to Return Overpayment or Cooperate with Audit
or Investigation, is proposed to be amended to change "commission" to "agency."
FISCAL NOTE
Jeff Horvath, Strategic Planning and Appropriations Division, has determined
that for the first five-year period the proposed rules are in effect, there
will be no significant fiscal implications for the agency or other units of
state government as a result of administration or enforcement of the proposed
amendments. Qualifying local taxing authorities that foreclose on properties
with storage tanks may realize some reduction in cost due to their decreased
environmental liability, the amount of which cannot be determined. In addition,
due to the extension of deadlines for corrective action plans, some owner/operators
will not see increases in their deductibles concerning reimbursement payments
for corrective action at LPST sites.
The proposed amendments implement HBs 2109 (relating to limits on liability
of a taxing unit for storage tanks), 2815 (relating to the petroleum storage
tank program; providing a penalty), and 2816 (relating to the fee on delivery
of certain petroleum products and programs for corrective actions in response
to releases from petroleum storage tanks), 76th Legislature, 1999. The proposed
rules limit environmental liability for qualifying local taxing authorities
that foreclose on properties with storage tanks. In addition, the proposed
rules create an annual self certification requirement whereby UST owners/operators
must certify that their tanks meet certain technical and administrative requirements
prior to accepting motor fuel deliveries. Transporters of motor fuel must
observe a valid, current delivery certificate prior to delivering fuel.
Corrective action deadlines to access the Petroleum Storage Tank Reimbursement
Fund are proposed to be extended without an increase in the deductible paid
by the eligible owner or operator. The December 23, 1997 deductible deadline
date was extended by 6 months and the December 23, 1998 deductible deadline
was extended by twelve months. These extensions allow the owner/operator additional
time before there is an increase in the owner/operator financial contribution.
The legislation extended the expiration date of the Petroleum Storage Tank
Reimbursement Fund an additional two years to September 1, 2003, and the expiration
date for fee collection was extended by six months to March 1, 2002.
UST owners/operators will be required to certify on an annual basis which
tanks are in compliance with the listed regulations and which tanks are not,
and to post the annual TNRCC delivery certificate at each facility. Any increase
in costs to comply with these new requirements are not anticipated to be significant.
Costs incurred by UST owner/operators in getting their tanks into compliance
with the administrative requirements and technical standards so that they
may accurately submit the annual compliance self-certification to TNRCC are
not costs associated with these proposed rules. Compliance with the agency
rules containing the administrative requirements and technical standards is
currently required.
The proposed rules would also clarify for local governments whether a taxing
unit was liable for USTs acquired through the foreclosure of an ad valorem
tax lien on real property. The rule would provide limits on liability of a
taxing unit that has foreclosed an ad valorem tax lien on real property on
which an UST is located.
PUBLIC BENEFIT
Mr. Horvath has also determined that for each year of the first five-years
the proposed amendments to Chapter 334 are in effect, the public benefit anticipated
from enforcement of and compliance with the proposed sections will be enhanced
understanding by making the rules clearer and easier to read, limited environmental
liability for qualifying local taxing authorities that foreclose on properties
with storage tanks, the extension of deadlines to accomplish corrective action
goals without an increase in deductible payments, faster reimbursement of
corrective action expenses, and a longer time to receive corrective action
expense reimbursements before expiration of the Petroleum Storage Tank Remediation
Fund. Also, the self-certification provisions should achieve greater compliance
with tank technical and administrative requirements which are designed to
prevent and detect releases. UST owners/operators will be required to certify
on an annual basis which tanks are in compliance with the listed regulations
and which tanks are not, and to post the annual TNRCC delivery certificate
at each facility. Any increase in costs to comply with these new requirements
are not anticipated to be significant. Costs incurred by UST owner/operators
in getting their tanks into compliance with the administrative requirements
and technical standards, so that they may accurately submit the annual compliance
self-certification to TNRCC, are not costs associated with these proposed
rules. Compliance with the agency rules containing the administrative requirements
and technical standards is currently required. Transporters must observe a
valid, current delivery certificate for those USTs prior to delivering fuel.
Transporter cost to verify self-certification will increase insignificantly
with the number of motor fuel deliveries.
Therefore, there are no significant additional economic costs anticipated
to any person required to comply with the proposed amendments. There may be
an increase in cost to annually self-certify compliance with additional reporting
requirements at tank registration renewal, which are not anticipated to be
significant.
SMALL BUSINESS AND MICRO-BUSINESS ANALYSES
No adverse economic effects are anticipated to any small businesses or
micro-businesses affected by the proposed rules. Many of the small or micro-businesses
could be owners/operators of retail service stations or convenience stores.
Any increase in cost to annually self-certify the compliance status of the
USTs is not anticipated to be significant. The costs to transporters is also
not anticipated to be significant. In addition, due to the extension of deadlines
for corrective action plans, some owner/operators will not see increases in
their deductibles concerning reimbursement payments for corrective action
at LPST sites.
REGULATORY IMPACT ASSESSMENT
The commission has reviewed the proposed rulemaking in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
has 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 that statute. "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. The
proposed amendments to Chapter 334 are not anticipated to adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state because the proposed amendments and repeals are intended to make
the rules easier to read and understand, improve program efficiency, and also
to implement state law requirements in HBs 2109, 2815, and 2816. Under HB
2815, owner/operators of certain USTs will have to annually
certify
that their tanks are in compliance with listed "administrative requirements
and technical standards." There is no change to the obligation to comply with
these existing requirements and technical standards.
While the proposal does not constitute a "major environmental rule", a
discussion of the four factors listed at Texas Government Code, §2001.0225(a),
will further clarify the nature of this rulemaking proposal. The proposed
rules do not exceed a standard required by federal law. The principle new
state law requirement is the compliance self-certification program
established
in HB 2815. Federal law at 40 Code of Federal Regulations (CFR) Part
281 requires that Texas have requirements in place to prevent and to detect
releases and spills to maintain program delegation. The TNRCC has had rules
in place that address these requirements, and the new self-certification program
in this rulemaking proposal requires tank owners/operators to annually certify
their compliance with these state rules. The rules proposed to implement HB
2815 do not exceed the standard set by that bill. Other proposed rule changes
are intended to streamline and clarify TNRCC rules concerning AST and USTs,
and do not exceed federal standards for program delegation. Also, the proposed
rules do not exceed the authority given the agency in TWC and in amendments
to it made through HB 2815, HB 2816, and HB 2109. In addition, the proposal
does not conflict with any requirements of the delegation agreement between
Texas and the United States Environmental Protection Agency on state implementation
of the 40 CFR Part 280 UST program (as referenced in 40 CFR Part 281). Finally,
this proposal does not adopt rules solely under the general powers of the
agency. A general effort to streamline and clarify agency PST rules was undertaken
as part of the Commissioners' ongoing regulatory reform effort, under the
specific statutory authority of TWC, §§26.345, 26.351, 26.352, 26.3573(j),
and 26.454.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this proposal
under the Texas Government Code, §2007.043. The following is a summary
of that assessment. The specific purpose of the rulemaking is to implement
HBs 2109, 2815, and 2816 and their corresponding changes to the TWC and to
do limited commissioner's regulatory reform amendments to streamline the rules,
improve program efficiency, and improve clarity and readability. This action
will not create a burden on private real property. The vast majority of the
proposed new rules were written to establish a compliance self-certification
program, as required by HB 2815. The rules proposed to create this program
would institute a system whereby owners and operators of certain USTs share
a responsibility to annually certify that those tank systems are in compliance
with "administrative requirements and technical standards." The TNRCC rules
which constitute "administrative requirements and technical standards" have
been in place for years. Because the new certificating program will induce
owners and operators of these USTs to achieve better compliance with these
existing agency regulations, it will actually result in fewer parcels of private
real property being burdened with contamination resulting from releases and
spills. Certification itself will not burden, restrict, or limit an owner's
right to property. The rules proposed to implement the remainder of the legislative
bills also do not add substantive requirements that would burden private real
property. In fact, the rules proposed to implement HB 2109 would make the
overall rule chapter less stringent by limiting the environmental liability
for qualifying local taxing authorities that foreclose on properties with
storage tanks. The rules proposed as part of the commissioner's regulatory
reform effort also do not create a burden on private real property, since
they are written to streamline and to clarify existing rules. As a whole,
this rulemaking will not be the cause of a reduction in market value of private
real property, and does not create a burden on private real property and will
not constitute a takings under the Texas Government Code, §2007.
While maintaining its assertion that this rulemaking action does not create
a burden on, or restrict or limit, private real property, the agency believes
that a number of exemption under Texas Government Code, §2007.003(b),
describe situations which could be said to be applicable to the proposed rulemaking.
To the extent that LPST sites constitute a "public or private nuisance", the
compliance certification program being implemented in this proposal should
lead to increased compliance with existing agency regulations that are designed
to prevent and detect releases and spills of regulated substances. In addition,
there are times when LPST sites constitute a "grave and immediate threat to
life or property." As stated above, the compliance certification program that
is being implemented in this proposal should lead to increased compliance
with agency rules designed to prevent and detect releases and spills of regulated
substances. Greater compliance with these rules will lead to fewer LPST sites,
which in turn will reduce the number of such sites that would be classified
as constituting an "emergency." Having proper release detection systems in
place for USTs can make the difference between a small release that can be
abated quickly versus a large release that can have serious impacts to human
health and safety (e.g., vapor inhalation on-site and through transport via
sanitary sewers, explosions, and drinking water impacts). LPST sites can constitute
"real and substantial" threats to public health and safety, both in an emergency
context and in the long term due to acute and carcinogenic effects. The compliance
certification rules proposed to implement HB 2815 should serve to increase
compliance with existing agency rules designed to prevent and detect releases
and spills from tank systems. Increased compliance should reduce the number
of LPST sites, and reduce the severity of the ones that do occur. This result
can be said to "significantly advance the health and safety purpose."
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has prepared a consistency determination for the proposed
rules pursuant to 31 TAC §505.22, and has found that the proposed rulemaking
is consistent with the applicable Texas Coastal Management Program (CMP) goals
and policies. The rulemaking is subject to the CMP and must be consistent
with applicable CMP goals and policies which are found in 31 TAC §501.12
and §501.14. The CMP goal applicable to the rules is the goal to protect,
preserve, restore, and enhance the diversity, quality, quantity, functions,
and values of Coastal Natural Resource Areas (CNRAs). CMP policies applicable
to the rules include the administrative policies and the policies for specific
activities related to construction and operation of solid waste treatment,
storage, and disposal facilities. In particular, the CMP policy most applicable
to these rules is to ensure that new solid waste facilities and areal expansions
of existing solid waste facilities are sited, designed, constructed, and operated
to prevent releases of pollutants that may adversely affect CNRAs and to comply
with standards established under the Solid Waste Disposal Act, 42 United States
Code, §§6801 et seq.
This rulemaking concerns regulation of USTs and some ASTs and petroleum-contaminated
waste/soil treatment facilities and soil reuse.
The rulemaking contains new or amended requirements mandated by legislation/state
law and limited regulatory reform amendments to streamline the rules and improve
clarity and readability. This rulemaking does not significantly change petroleum-contaminated
soil treatment facility and reuse requirements or storage tank technical and
operating requirements beyond those required by federal or state law. Concerning
safe and appropriate storage, management, and treatment of petroleum-contaminated
soils, the standards are proposed to be adjusted to reflect good science gathered
over many years experience since the original rule was first written. The
original numbers were estimates projected to be appropriate, given the information
available to the agency at the time those rules were promulgated. After several
years of evaluating data, the agency is convinced that a new standard, which
reflects the current agency risk-based approach to waste assessment and remediation,
would be more technically sound while remaining protective of the environment.
The tank compliance certification program is expected to increase compliance
with rules designed to prevent and detect releases and spills, so that the
coastal areas (like other parts of the state) should experience fewer instances
of contamination, and those instances that do occur should be detected earlier
so they can be abated earlier. Therefore, the commission has determined that
this rulemaking is consistent with the applicable CMP goal and policies because
the new or amended requirements are mandated by state law and the regulatory
reform amendments do not have an adverse effect on the CNRAs. Interested persons
may submit comments on the consistency of the proposed rules with the CMP
during the public comment period.
PUBLIC HEARING
A public hearing on the proposed rules will be held in Austin on July 25,
2000, at 10:00 a.m. in Building E, Room 201S at the Texas Natural Resource
Conservation Commission complex, 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 occur during the hearing; however, an agency staff
member will be available to discuss the proposal 30 minutes prior to the hearing
and answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the commission
at (512) 239-4900. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., August
1, 2000, and should reference Rule Log Number 1999-038-334-WS. For further
information, please contact Jackie Hardee at (512) 239-2151.
Subchapter A. GENERAL PROVISIONS
30 TAC §§334.1-334.10, 334.12, 334.15, 334.17, 334.18
STATUTORY AUTHORITY
The amended sections are proposed under TWC, §5.103, which provides
the commission authority to adopt any rules necessary to carry out its powers
and duties under this code and other laws of this state and to adopt rules
repealing any statement of general applicability that interprets law or policy; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; and §26.011, which requires the commission
to control the quality of water by rule. The amended sections are also proposed
under TWC, §26.345, which provides the commission authority to develop
a regulatory program and to adopt rules regarding USTs, §26.351, which
provides the commission authority to adopt rules establishing the requirements
for taking corrective action in response to a release from an UST or AST,
and §26.454, which provides the commission authority to adopt rules for
the licensing of installers and on-site supervisors, and continuing education
requirements for installers and on-site supervisors.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks and Subchapter K, Underground Storage Tank Installers.
§334.1.Purpose and Applicability.
(a)
Purpose. The purposes of this chapter are to:
(1)
provide a comprehensive regulatory program for
hazardous
substance and petroleum substance
underground storage tank
(UST)
systems [
(2)-(4)
(No change.)
(b)
Applicability to
USTs
[
(1)
An
UST
[
(A)
meets the definition of
UST
[
(B)
contains, has contained, or will contain a regulated substance
as defined under §334.2 of this title [
(C)
is not completely exempted from regulation[
(D)
is not completely excluded from regulation under §334.4(a)
of this title (relating to [
(2)
The [
(1)
of this subsection), and to the registration,
self-certification,
design, construction, installation, operation, testing,
maintenance, upgrading, recordkeeping, reporting, removal from service, release
monitoring, release reporting and corrective action
(including risk-based
corrective action)
, fee assessment, financial assurance
in accordance
with Chapter 37, Subchapter I of this title (relating to Financial Assurance
for Petroleum Underground Storage Tank Systems)
, and other applicable
requirements associated with such systems, as more fully described in this
chapter.
(3)
The [
(4)
The following types of underground tank systems
are
[
(A)-(B)
(No change.)
(c)
Applicability to
ASTs
[
(1)
An
AST
[
(A)
meets the definition of "aboveground storage tank" in
§334.2
[
(B)
contains, has contained, or will contain a "petroleum product"
as defined in
§334.2
[
(C)
is not exempted from regulation
under
[
(D)
is not excluded from regulation
under
[
(2)
The [
(3)
The applicable requirements and provisions in this
chapter shall apply equally to all owners and operators of regulated
ASTs
[
(4)
The following types of
ASTs
[
(A)-(B)
(No change.)
(5)
If a storage tank containing a petroleum product
technically meets the definitions of both an
AST
[
(6)
Consistent with the [
(d)
Applicability of specific sections to
USTs
[
(1)
USTs
[
[(A)
Subchapter A of this chapter (relating
to General Provisions);]
[(B)
Subchapter B of this chapter (relating
to Underground Storage Tank Fees);]
[(C)
Subchapter C of this chapter (relating
to Technical Standards);]
[(D)
Subchapter D of this chapter (relating
to Release Reporting and Corrective Action);]
[(E)
Subchapter E of this chapter (relating
to Financial Responsibility);]
[(F)
Subchapter H of this chapter (relating
to Interim Reimbursement Program); and]
[(G)
Subchapter I of this chapter (relating
to Underground Storage Tank Contractor Certification and Installer Licensing).]
(2)
ASTs
[
(A)
§334.3 of this title (relating to Exemptions
for Underground Storage Tanks (USTs) and UST Systems), §334.4 of this
title (relating to Exclusions for Underground Storage Tanks (USTs) and UST
Systems), §334.5 of this title (relating to General Prohibitions for
Underground Storage Tanks (USTs) and UST Systems), §334.6 of this title
(relating to Construction Notification for Underground Storage Tanks (USTs)
and UST Systems), §334.7 of this title (relating to Registration for
Underground Storage Tanks (USTs) and UST Systems), §334.8 of this title
(relating to Certification for Underground Storage Tanks (USTs) and UST Systems),
and §334.9 of this title (relating to Seller's Disclosure), and §334.10
of this title (relating to Reporting and Recordkeeping)
[
(B)
Subchapter
B
[
(C)
Subchapter
C
[
(D)
Subchapter I of this chapter (relating to Underground
Storage Tank Contractor Registration and Installer Licensing)
[
§334.2.Definitions.
The following words and terms, when used in this chapter, [
(1)
Abandonment in-place--A method of permanent removal of
an underground storage tank
(UST)
from service where the tank is
left in the ground after appropriate preparation and filling with an acceptable
solid inert material
in accordance with the requirements of §334.55
of this title (relating to Permanent Removal From Service)
.
(2)
Abatement--The process of reducing
in sufficient degree or intensity the source of the release or impacted area,
and potential fire, explosion, or vapor hazards, such that immediate threats
to human health no longer exist. This includes the removal of all regulated
substances from the aboveground or underground tank, and the removal of phase-separated
products released from the tank.
(3)
[
(4)
Aboveground storage tank (AST)--A
non-vehicular device, (including any associated piping), that is made of non-earthen
materials; located on or above the surface of the ground, or on or above the
surface of the floor of a structure below ground, such as mineworking, basement,
or vault; and designed to contain an accumulation of petroleum products.
[(3)
Accidental release--Any sudden or
nonsudden release of a petroleum substance from an underground storage tank
that results in a need for corrective action and/or compensation for bodily
injury or property damage neither expected nor intended by the tank owner
or operator.]
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
Backfill--The volume of materials
or soils surrounding the UST bounded by the ground surface, walls, and floor
of the tank pit.
(13)
[
(14)
[
[
Bodily injury--The meaning
given to this term by applicable Texas law; however, this term shall not include
those liabilities which, consistent with standard insurance industry practices,
are excluded from coverage in liability insurance policies for bodily injury.]
[
Bulk storage tank--An
underground storage tank having a capacity of 20,000 gallons or more.]
(15)-(16)
(No change.)
(17)
Change-in-service--A method of permanent removal
from service involving the permanent conversion of a regulated
UST
[
(18)
Closure letter--A letter issued by the
agency
[
(19)
Commingled--A combination or mixture
of a petroleum product and a substance other than a petroleum product (excluding
soil and/or water).
[(19)
Commission--Texas Natural Resource
Conservation Commission, or its predecessor or successor agencies, as applicable.]
(20)
Common carrier--With respect to
delivery prohibitions and UST compliance self-certification only, a person
(as defined in this section) who physically delivers a regulated substance
into an UST directly from a cargo tank which is affixed or mounted to a self-propelled,
towable, or pushable vehicle (e.g., wagon, truck, trailer, railcar, aircraft,
boat, or barge).
(21)
[
(22)
[
[(22)
Controlling interest--Direct ownership
of at least 50% of the voting stock of another entity.]
(23)
(No change.)
(24)
Corrective action--Any assessment,
monitoring, and remedial activities undertaken to investigate the extent of
and to remediate contamination.
(25)
Corrective action plan (or remedial
action plan)--A detailed plan developed to address site remediation of soil,
groundwater, or surface water contamination that provides for required protection
of human health, safety, and the environment. The selection of the most effective
and efficient remedial method will be dictated by the nature and location
of the release, the site soils, hydrogeological conditions, and the required
degree of remediation. The remedial method selection should take into consideration
such factors as cost, time, and state compliance requirements with each method.
The title of any report which contains a corrective action plan must include
the designation "remedial action plan."
(26)
[
(A)
certified as a corrosion specialist or a cathodic protection
specialist by
NACE International
[
(B)
licensed as a professional engineer by the Texas [
(27)
[
(A)
has been certified by
NACE International
[
(B)
is employed under the direct supervision of a corrosion
specialist (as defined in this section), where the corrosion specialist maintains
responsible control and oversight over all corrosion testing and inspection
activities;
or
(C)
has been officially qualified as a cathodic protection
test or, in strict accordance with the assessment and examination procedures
prescribed by NACE
International.
[
[(D)
can otherwise demonstrate at least an
equivalent level of proficiency, training, and experience as required for
personnel meeting the requirements of subparagraphs (A), (B), or (C) of this
definition.]
[(26)
Cost-effective work--Work
of a type which is both effective in achieving the desired remediation result,
and which of alternative types of effective work, is the least costly.]
(28)
[
(29)
[
(30)
[
(31)
[
[(31)
EPA--The federal Environmental
Protection Agency.]
(32)
Excavation zone--The space containing the
UST
[
[(33)
Executive director--The executive
director of the commission.]
(33)
[
(34)
[
(35)
[
[(37)
Facility owner--Any person who
currently holds legal possession or ownership of a total or partial interest
in an underground storage tank facility. The facility owner and the owner
associated with an underground storage tank system may be the same person
or may be different persons, depending on the specific arrangements at the
facility.]
(36)
[
(37)
[
(38)
[
[(41)
Financial reporting year--The latest
consecutive 12-month period for which any of the following reports used to
support a financial test is prepared:]
[(A)
a 10-K report submitted to the federal Securities and
Exchange Commission;]
[(B)
an annual report of tangible net worth submitted to Dun
and Bradstreet; or]
[(C)
annual reports submitted to the Energy Information Administration
or the Rural Electrification Administration. Thus, this term may comprise
a fiscal or a calendar year period.]
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
(45)
Hydraulic fluid--Any regulated substance
that is normally used in a hydraulic lift system.
(46)
[
(47)
[
(48)
[
(49)
[
(50)
[
(51)
[
(52)
Jacketed tank--A factory-constructed
tank consisting of a single-wall or double-wall steel internal (or primary)
tank that is completely enclosed in an external secondary-containment jacket
made of noncorrodible material, and which is designed so that releases of
stored substances from the internal tank can be contained and monitored within
a liquid-tight interstitial space between the internal tank and the external
jacket.
[(54)
Legal defense cost--Any expense
that an owner or operator or provider of financial assurance incurs in defending
against claims or actions brought:]
[(A)
by EPA or the state to require corrective action or to
recover the costs of corrective action;]
[(B)
by or on behalf of a third party for bodily injury or
property damage caused by an accidental release; or]
[(C)
by any person to enforce the terms of a financial assurance
mechanism.]
(53)
[
(54)
[
(55)
Leaking petroleum storage
tank (LPST) site--A site at which a confirmed release of a petroleum substance
from an UST or AST has occurred. Petroleum substance contamination which results
from multiple sources may be deemed as one LPST site by the agency.
(56)
[
(57)
[
(58)
[
(59)
[
[(61)
Necessary cost--Cost of necessary
work.]
[(62)
Necessary work/technically necessary
work--Work which is required and approved by the commission to assess or remediate
a leaking petroleum storage tank site.]
(60)
[
(61)
[
(62)
Non-aqueous phase liquid (NAPL)--See
"Free product (or non-aqueous phase liquid)" as defined in this section.
(63)
[
(64)
[
(65)
[
(66)
[
(67)
[
(68)
[
(69)
[
(70)
[
(71)
[
(72)
[
(73)
[
(74)
[
(75)
[
(76)
[
(77)
[
(78)
Petroleum product--A
petroleum substance obtained from distilling and processing crude oil that
is liquid at standard conditions of temperature and pressure, and that is
capable of being used as a fuel for the propulsion of a motor vehicle or aircraft,
including but not limited to motor gasoline, gasohol, other alcohol blended
fuels, aviation gasoline, kerosene, distillate fuel oil, and Number 1 and
Number 2 diesel. The term does not include naphtha-type jet fuel, kerosene-type
jet fuel, or a petroleum product destined for use in chemical manufacturing
or feedstock of that manufacturing.
(79)
[
(A)
basic petroleum substances--crude oils, crude oil fractions,
petroleum feedstocks, and petroleum fractions;
(B)
motor fuels--(see definition for "motor fuel" in this section);
(C)
aviation gasolines--Grade 80, Grade 100, and Grade 100-LL;
(D)
aviation jet fuels--Jet A, Jet A-1, Jet B, JP-4, JP-5,
and JP-8;
(E)
distillate fuel oils--Number 1-D, Number 1, Number 2-D,
and Number 2;
(F)
residual fuel oils--Number 4-D, Number 4-light, Number
4, Number 5-light, Number 5-heavy, and Number 6;
(G)
gas-turbine fuel oils--Grade O-GT, Grade 1-GT, Grade 2-GT,
Grade 3-GT, and Grade 4-GT;
(H)
illuminating oils--kerosene, mineral seal oil, long-time
burning oils, 300 oil, and mineral colza oil;
(I)
solvents--Stoddard solvent, petroleum spirits, mineral
spirits, petroleum ether, varnish makers' and painters' naphthas, petroleum
extender oils, and commercial hexane;
(J)
lubricants--automotive and industrial lubricants;
(K)
building materials--liquid asphalt and dust-laying oils;
(L)
insulating and waterproofing materials--transformer oils
and cable oils;
(M)
used oils--(see definition for "used oil" in this section);
[(N)
any other petroleum-based material having
physical and chemical properties similar to the previosly listed materials
and receiving approval by the executive director for designation as a petroleum
substance.]
(80)
[
(81)
[
(82)
[
(83)
[
(84)
[
(85)
[
[(87)
Property damage--The meaning given
this term by applicable Texas law. This term shall not include those liabilities
which, consistent with standard insurance industry practices, are excluded
from coverage in liability insurance policies for property damage. However,
such exclusions for property damage shall not include corrective action associated
with releases from tanks which are covered by the policy.]
[(88)
Provider of financial assurance--An
entity that provides financial assurance to an owner or operator of an underground
storage tank through one of the mechanisms listed in Subchapter E of this
chapter (relating to Financial Responsibility).]
(86)
[
(87)
[
[(91)
Reasonable cost--That amount or
range which is commensurate with the level of corrective action necessary
to assess and remediate a site, as determined by the executive director, based
on an evaluation of technical effectiveness and cost effectiveness as well
as typical costs expected for that particular corrective action under review,
with respect to the necessary or required scope and complexity of the action.
(As defined by 31 (later 30) TAC §334.309(a) of this title (Allowable
Costs and Restrictions on Allowable Costs--Interim Period) until that section
was repealed and replaced on June 7, 1993, by the adoption of Subchapter M
of this chapter (relating to Reimbursable Cost Guidelines).]
(88)
[
[(93)
Reimbursable cost--As defined by
Subchapter M, §334.560 of this title (relating to Reimbursable Cost Guidelines).]
(89)
[
(90)
[
(91)
[
(92)
[
(93)
Responsible party--the person(s)
designated by the agency, as allowed by law, as responsible for performing
timely corrective action at a LPST site to the satisfaction of the agency.
(94)
Retail service station--A facility
where flammable liquids used as motor fuels are stored and dispensed from
fixed equipment into the fuel tanks of motor vehicles and where such dispensing
is an act of retail sale.
(95)
[
[
SARA--Superfund Amendments
and Reauthorization Act of 1986.]
(96)
[
(97)
[
(98)
[
(99)
[
(100)
[
(101)
[
[(106)
Substantial business relationship--The
extent of a business relationship necessary under applicable state law to
make a guarantee contract issued incident to that relationship valid and enforceable.
A guarantee contract is issued incident to that relationship if it arises
from and depends on existing economic transactions between the guarantor and
the owner or operator.]
(102)
[
(103)
[
(104)
[
[
Tangible net worth--The
tangible assets that remain after deducting liabilities; such assets do not
include intangibles such as goodwill and rights to patents or royalties. For
purposes of this definition, assets means all existing and all probable future
economic benefits obtained or controlled by a particular entity as a result
of past transactions.]
(105)
[
(106)
[
(107)
[
(108)
Taxing unit--any local
governmental entity or political subdivision of the State of Texas, which
is legally authorized by state law to levy, assess, and collect ad valorem
taxes on property in Texas.
(109)
[
(110)
[
[(116)
TNRCC--Texas Natural Resource
Conservation Commission, or "commission" as referenced in this chapter.]
[
TWC--Texas Water Commission,
abolished after August 31, 1993, and now refers to the Texas Natural Resource
Conservation Commission (TNRCC).]
(111)
[
(112)
[
(113)
[
(114)
[
(115)
[
(116)
[
(117)
[
(118)
[
(119)
[
(120)
[
(121)
[
(122)
[
§334.3.[
(a)
Complete exemption. The following underground tanks and
containment devices (including any connected piping) are completely exempt
from regulation under this chapter[
(1)-(7)
(No change.)
(8)
transformers or other electrical equipment that contains
a regulated substance and that is used in the transmission of electricity,
to the extent that such a transformer or equipment is exempted by the United
States Environmental Protection Agency under
Title
40 Code of Federal
Regulations, Part 280;
(9)-(11)
(No change.)
(b)
Partial exemption. As provided under the Texas Water Code
(TWC)
, §26.344(e), in-ground hydraulic lifts that use a compressed
air/hydraulic fluid system and which hold less than 100 gallons of hydraulic
oil are exempt from regulation under this chapter, except that such lifts
[
(c)
Upon request by the agency, the owner
and operator of a tank claimed to be exempted under this section must provide
appropriate documentation or other information in a timely manner to support
that claim.
§334.4.[
(a)
Complete exclusions. In addition to the tanks exempted
from regulation under §334.3 of this title (relating to [
(1)
any
UST
[
(2)-(3)
(No change.)
(4)
emergency spill protection or emergency overflow containment
tanks, including certain sumps and secondary containment systems, which are
used solely for the temporary storage or containment of regulated substances
resulting from a leak, spill, overfill, or other unplanned release, and where
the regulated substances are routinely removed within 48 hours of the discovery
of the release; provided [
(5)
UST
[
(b)
Partial exclusions. The following
USTs
[
(1)
(No change.)
(2)
any
UST
[
(3)
any
UST
[
(c)
Other exclusion. In addition to the partial exemption for
hydraulic lifts covered under §334.3(b) of this title [
(d)
Upon request by the agency, the owner
and operator of a tank claimed to be excluded under this section must provide
appropriate documentation or other information in a timely manner to support
that claim.
§334.5.General Prohibitions for Underground Storage Tanks (USTs) and UST Systems .
(a)
Design
prohibitions
. On or after September 1,
1987, no person
may
[
(1)
The
UST
[
(2)
All components of the
UST
[
(3)
The
UST
[
(b)
Delivery
prohibitions
.
(1)
Except as provided under paragraphs (2) and (3) of
this subsection, no common carrier (as defined in §334.2 of this title
(relating to Definitions) shall deposit any regulated substance into an UST
system regulated under this chapter unless the owner or operator has a valid,
current delivery certificate issued by the agency covering that system. The
delivery certificate is a combination of the registration certificate referenced
under §334.7 of this title (relating to Registration for Underground
Storage Tanks (USTs) and UST Systems) and the compliance self-certification
document referenced under §334.8(c)(5) of this title (relating to Certification
for Underground Storage Tanks (USTs) and UST Systems).
[
(2)
For new or replacement UST systems, only during
the initial period ending 90 days after the date that regulated substance
is first deposited into the new or replacement system(s), a common carrier
may accept, as adequate to meet the requirements of paragraph (1) of this
subsection, documentation that the owner or operator has a "temporary delivery
authorization" (as defined in §334.8(c)(5)(D) of this title) issued by
the agency for the facility at which the new or replacement UST system(s)
exist.
[
(3)
The requirement to observe a Texas
Natural Resource Conservation Commission (TNRCC) delivery certificate before
delivering to an UST regulated under §334.8(c)(2) of this title will
phase-in according to the schedule in §334.8(c)(2) of this title.
(4)
A common carrier delivering a regulated
substance into an UST system may accept the following documentation as adequate:
(A)
the original, valid, current delivery certificate (or temporary
delivery authorization, if applicable) issued by the agency; or
(B)
a legible copy of the valid, current delivery certificate
(or temporary delivery authorization, if applicable).
(5)
If in the exercise of good faith,
a common carrier who deposits a regulated substance into an UST system is
first presented with an apparently valid, current TNRCC delivery certificate
(or temporary delivery authorization, if applicable) represented by the UST
owner or operator to meet the requirements of paragraph (1) of this subsection,
this will be considered prima facia evidence of compliance by that common
carrier with this subsection.
[(c)
Notification. No person shall perform
any installation, replacement, removal, change-in-service, abandonment in-place,
or any other major construction related to an underground storage tank system
unless and until the commission has been provided prior notification of such
activity in accordance with §334.6 of this title (relating to Construction
Notification).]
[(d)
Registration. On or after September 1,
1987, no person shall own or operate an underground storage tank which contains
or has contained a regulated substance unless such underground storage tank
has been properly registered with the commission in accordance with §334.7
of this title (related to Registration), except for:]
[(1)
underground storage tanks completely exempted or partially
exempted from regulation under §334.4(a) or (c) of this title (relating
to Statutory Exemptions);]
[(2)
underground storage tanks completely excluded or
partially excluded from regulation under §334.4(a) or (c) of title (relating
to Commission Exclusions); and]
[(3)
underground storage tanks which are permanently out
of service and which either:]
[(A)
were removed from the ground before May 8, 1986; or]
[(B)
remain in the ground, but were emptied, cleaned, and filled
with solid inert materials on or before January 1, 1974, in accordance with
accepted industry practices in effect at the time the UST was taken out of
operation;]
[(4)
underground storage tanks which are out of operation
and empty of regulated substances at the time of their discovery, provided
that:]
[(A)
the facility owner can reasonably demonstrate no prior
knowledge of the existence of the USTs; and]
[(B)
the USTs are permanently removed from service in accordance
with §334.55 of this title (relating to Permanent Removal from Service)
no later than September 29, 1990, or within 60 days of their discovery, whichever
is later.]
§334.6.Construction Notification for Underground Storage Tanks (USTs) and UST Systems .
(a)
General requirements.
(1)
Beginning September 1, 1987, any person who intends either
to install a new or replacement underground storage tank
(UST)
,
to remove an
UST
[
(2)
On or after
September 29, 1989
[
(3)
In addition to the construction notification requirements
of this section, the owner or operator of an existing or proposed
UST
[
(4)
Any
UST
[
(5)
In situations where a proposed
UST
[
(6)
Construction notifications required under this section
may be provided to the
agency's
[
(7)
Construction notification required under this section
must
[
(b)
Notification for major construction activities.
(1)
Applicable activities.
(A)
For the purposes of this section, a major
UST
[
(i)-(viii)
(No change.)
(B)
The requirements of this section
are
[
(2)
Filing requirements. Except as provided under
subsection (c) of this section, any
owner or operator
[
(A)
Such notification should be submitted on the
agency's
[
(B)
When requested by the
agency
[
(i)-(x)
(No change.)
(C)
Between 24 and 72 hours prior to the scheduled time of
initiation of the proposed activity, the owner
or operator must
[
(3)
Rescheduling. If after the submittal of the initial
construction notification, the owner
or operator
determines that
a revision to the previously reported scope or start date for the construction
is necessary, the owner
or operator must
[
(A)
If an earlier start date is proposed, and if this date
is less than 30 days from the original notification date, then the owner
or operator must
[
(B)
An owner
or operator
may revise the proposed
construction start to a later date as necessary, provided that the
agency's
[
(4)
Waiver requests. Normally a notification period
of at least 30 days
is
[
(A)
good cause shown by the owner
or operator
for
an earlier construction start date; and
(B)
the ability of
agency
[
(5)
Expiration. A written construction notification
for a major
UST
[
(6)
Notification form.
(A)
Any person who intends to perform a major
UST
[
(B)
The construction notification form
must
[
(c)
Alternative notification procedures.
(1)
Only for
UST
[
(A)
The owner
or operator must
[
(B)
After providing the construction notification prescribed
under subparagraph (A) of this paragraph, the owner
or operator
may proceed with the construction activity, as directed by the
regional
director
[
(2)
The alternative notification procedures of paragraph
(1) of this subsection may be used only when the following situations occur:
(A)
when an owner
or operator
of an
UST
[
(B)
when an out-of-operation
UST
[
(C)
when any duly authorized public official (e.g., any federal,
state, or local fire or safety officer, health or environmental official,
law officer, etc.) orders the immediate removal or repair of all or portions
of an
UST
[
(D)
when the activity is necessary to maintain the operational
readiness of an emergency generator
, as defined by §334.2 of this
title (relating to Definitions)
;
(E)
in any other case where the
agency
[
§334.7.Registration for Underground Storage Tanks (USTs) and UST Systems .
(a)
General provisions.
(1)
All underground storage tanks
(USTs)
in existence
on or after September 1, 1987,
must
[
(A)
are completely exempted or partially exempted from regulation
under §334.3(a) or (b) of this title (relating to [
(B)
are completely excluded or partially excluded from regulation
under §334.4(a) or (c) of this title (relating to [
(C)
were properly registered with the
agency
[
(D)
(No change.)
(E)
were out of operation and empty of regulated substances
at the time of their discovery, provided that:
(i)
the facility owner
and operator
can reasonably
demonstrate no prior knowledge of the existence of the USTs; and
(ii)
(No change.)
(2)
The owner
and operator
of an
UST
[
(3)
All
USTs
[
(b)
Existing tanks. Any person who owns an
UST
[
(c)
New or replacement tanks. Any person who owns a new or
replacement
UST
[
(d)
Changes or additional information.
(1)
The owner
or operator
of an
UST
[
(A)
change in
owner or operator
[
(i)-(ii)
(No change.)
(B)
change in the operational status of
any
[
(C)
change in the type of stored regulated substance[
(D)
installation of additional tanks and
/or
ancillary
equipment at an existing facility;
(E)-(I)
(No change.)
(J)
change in financial
assurance
[
(2)
Notice of any change or additional information
must
[
(3)
Notice of any change or additional information
must
[
(4)
However, for the initial filing of
the UST registration and self-certification form (as described in §334.8(c)(4)
of this title (relating to Certification for Underground Storage Tanks (USTs)
and UST Systems) for all regulated UST systems at a facility, all UST owners
and operators must complete the "Tank Identification/Description" section
of the UST registration portion of the form by the same deadline given in §334.8(c)(4)(A)(vi)
of this title. This requirement does not relieve an owner or operator from
any other registration requirements under this section.
(e)
Required form for providing UST registration information
[
(1)
Any
UST
[
(2)
The
UST
[
(3)
All
UST
[
(4)
UST
[
(5)
If additional information, drawings, or other documents
are submitted with new or revised registration data, specific facility identification
information (including the facility identification number, if known)
must
[
(6)
For any UST registration information
filed with the agency on or after the effective date of this paragraph, UST
owners and operators must provide the required information on an authorized
agency UST registration and self-certification form, as prescribed by §334.8(c)(3)
of this title.
(7)
Owners and operators of petroleum
UST systems should also see the financial assurance requirements in Chapter
37, Subchapter I, §37.870(b) of this title.
(f)
Inadequate information. When any of the required
UST
[
[(g)
Registration requirements as a condition
for reimbursement. In order to be eligible for reimbursement of corrective
action expenses, the eligibility requirements relating to registration, as
provided in §334.310 of this title (relating to Requirements for Eligibility)
must be met.]
§334.8.Certification for Underground Storage Tanks (USTs) and UST Systems .
(a)
Underground storage tank (UST) construction activity
[
[(1)
Owner or operator certifications. Any
owner or operator who installs a new or replacement underground storage tank
system after the effective date of this subchapter shall assure that all applicable
parts of the construction certification section of the commission's authorized
tank registration form are completed. The owner or operator shall further
certify by signature that:]
[(A)
the installation meets the requirements of §334.45
of this title (relating to Technical Standards for New UST Systems) and §334.46
of this title (relating to Installation Standards for New UST Systems);]
[(B)
the corrosion protection system meets the requirements
of §334.49 of this title (relating to Corrosion Protection); and]
[(C)
the release detection equipment or procedures meet the
requirements of §334.50 of this title (relating to Release Detection).]
(1)
[
(2)
[
(b)
Financial
assurance
[
[(1)
Beginning on the effective date of this
subchapter, all owners and operators of new and existing underground storage
tank systems shall assure that the applicable parts of the financial responsibility
section of the commission's authorized tank registration form are completed,
and shall certify by signature that the financial responsibility requirements
under Subchapter E of this chapter (relating to Financial Responsibility)
have been met.]
[(2)
The required financial responsibility
information shall be included in the appropriate section of the commission's
authorized tank registration form, and shall be filed with the commission
as follows.]
[(A)
For new UST systems, the financial responsibility information
shall be filed with the commission in accordance with the tank registration
time limits prescribed under §334.7 of this title (relating to Registration).]
[(B)
For existing UST systems, the financial responsibility
information shall be filed with the commission within 30 days of the prescribed
date that financial responsibility is required pursuant to §334.92 of
this title (relating to Compliance Dates).]
(c)
UST compliance self-certification requirements.
(1)
Applicability. Except as provided in this paragraph, the
requirements of this subsection are applicable to the owners and operators
of USTs regulated under this chapter.
(A)
The requirements of this subsection are not applicable
to the following USTs:
(i)
USTs which are completely exempt or partially exempt from
regulation under §334.3 of this title (relating to Exemptions for Underground
Storage Tanks (USTs) and UST Systems); and
(ii)
USTs which are completely excluded or partially excluded
from regulation under §334.4 of this title (relating to Exclusions for
Underground Storage Tanks (USTs) and UST Systems);
(iii)
USTs into which deliveries or deposits of regulated substances
are exclusively made by persons other than a common carrier, as defined in §334.2
of this title (relating to Definitions).
(B)
The agency will not provide an UST delivery certificate
for USTs covered by the exceptions in subparagraph (A) of this paragraph.
(2)
Phase-in schedule for all regulated substance
UST systems except motor fuel (as defined in §334.2 of this title) UST
systems.
(A)
For these UST systems, the self-certification requirements
of this subsection will become effective two years after the effective date
of this subsection.
(B)
Nothing in this subsection affects the requirements under §334.7(d)(4)
of this title.
(3)
Conditions and limitations.
(A)
Filing of the UST registration and self-certification form
does not relieve an owner or operator from the responsibility for timely compliance
with other applicable filing requirements under this chapter.
(B)
Completion of the UST registration and self-certificaton
form in a manner that indicates compliance with applicable UST regulations
(as specified in subparagraph (D) of this paragraph) will result in the agency's
issuance of an UST delivery certificate for the tanks at the facility for
which compliance is self-certified.
(C)
The agency's issuance of a delivery certificate for an
UST(s) does not constitute agency certification or affirmation of the compliance
status of the tank(s) in question with agency UST technical and/or administrative
requirements, and this issuance does not preclude the agency from investigating
these tanks and pursuing enforcement actions under the Texas Water Code when
apparent violations are discovered.
(D)
The administrative requirements and technical standards
that are the subject of the compliance self-certification shall include:
(i)
tank registration, as described in §334.7 of this
title;
(ii)
facility fees, as described in Subchapter B of this chapter
(relating to Underground Storage Tank Fees);
(iii)
financial assurance, as described in Chapter 37, Subchapter
I of this title; and
(iv)
technical standards, as described in §334.49 of this
title (relating to Corrosion Protection), §334.50 of this title (relating
to Release Detection), §334.51 of this title (relating to Spill and Overfill
Prevention and Control), and §334.43 of this title (relating to Variances
and Alternative Procedures), when a variance to all or part of one or more
of the previous three sections has been granted by the agency in writing under
the procedures described in §334.43 of this title.
(4)
UST registration and self-certification
form.
(A)
Requirements for completion of the form.
(i)
Each UST registration and self-certification form must
be completed with all the applicable information requested on the agency's
authorized form for all regulated UST systems at the specified facility.
(ii)
Owners or operators who own or operate regulated USTs
at more than one facility must complete and file a separate UST registration
and self-certification form for each facility.
(iii)
The agency will not issue a delivery certificate based
upon an incomplete submittal.
(iv)
Upon completion, the UST registration and self-certification
form must be dated and signed by either the UST owner (or the owner's legally
authorized representative) or by the UST operator (or the operator's legally
authorized representative).
(v)
If additional information, drawings, or other documents
are submitted with the UST registration and self-certification form, specific
facility identification information (including the facility identification
number) must be conspicuously indicated on each document and all these documents
must be securely attached to and filed with the UST registration and self-certification
form.
(vi)
To ensure timely initial issuance by the agency of the
UST delivery certificate, an owner or operator must submit the required UST
registration and self-certification form (including any additional or supplemental
information required under clause (v) of this subparagraph) to the agency
no later than the following dates:
(I)
For UST systems where the first storage of regulated substances
was initiated before the effective date of this clause, the deadline for submission
is 60 days after the effective date of this section.
(II)
For UST systems where the date of the first storage of
regulated substances was on or after the effective date of this section, the
deadline for submission is no later than 30 days after the date of initial
storage of regulated substances.
(vii)
To ensure timely renewal of a previously-issued UST delivery
certificate, the deadline for submission is 30 days before the annual renewal
date for the UST delivery certificate for that specific facility, as indicated
in paragraph (5)(B)(iii) of this subsection.
(B)
The facility owner and operator are both responsible for
ensuring that the UST registration and self-certification form is fully and
accurately completed, and that it is submitted to the agency in a timely manner.
To minimize processing delays, the form should be mailed directly to the specific
agency office, department, and mail code shown on the form.
(C)
When tank ownership at a facility changes, a new certification
under this subsection must be made within 30 days of the ownership change.
(5)
UST delivery certificate.
(A)
Certificate availability.
(i)
The owner and operator of USTs regulated under this section
must make available to a common carrier a valid, current Texas Natural Resource
Conservation Commission (TNRCC) delivery certificate (or TNRCC temporary delivery
authorization under subparagraph (D) of this paragraph, as applicable) before
delivery of a regulated substance into the UST(s) can be accepted. The delivery
certificate must cover each UST at the facility accepting a delivery. The
bill of lading for the first delivery of regulated substance into any new
or replacement UST at the facility must be attached to the temporary delivery
authorization for that facility.
(ii)
The owner and operator of USTs regulated under this section
must make immediately available, upon request by agency staff, a valid, current
TNRCC delivery certificate (or TNRCC temporary delivery authorization under
subparagraph (D) of this paragraph, as applicable) for the USTs at a facility.
(iii)
The owner and operator of USTs regulated under this section
must ensure that a valid, current TNRCC delivery certificate (or TNRCC temporary
delivery authorization under subparagraph (D) of this paragraph, as applicable)
is posted at a facility. The posting must be in a location where the document
is clearly visible at all times.
(B)
Annual delivery certificate renewal.
(i)
The initial delivery certificate issued for a tank(s) will
be valid until the expiration date indicated on that certificate. The expiration
will be based on the last digit of the official TNRCC owner identification
number for the registered owner of the tank(s) in question, as described in
clause (ii) of this subparagraph. It is the responsibility of the tank owner
and operator to ensure that an application for renewal of that certificate
is properly and timely filed.
(ii)
A delivery certificate is renewed by timely and proper
submission of a new UST registration and self-certification form to the agency.
For each facility, to allow time for processing of the renewal request, the
agency must have received the properly completed form at least 30 days before
the expiration date of the delivery certificate in question. The agency will
not issue a renewed delivery certificate based on improper submission of renewal
documents.
(iii)
Annual expiration and renewal dates for delivery certificates
are determined by the last digit of the official TNRCC owner identification
number for the registered owner of the tank(s) in question, and are effective
beginning in calendar year 2001 and for each year thereafter on the dates
indicated below:
(I)
If owner number ends in "1"--delivery certificate expires
on January 31, and renewal is due February 1;
(II)
If owner number ends in "2"--delivery certificate expires
on the last day of February, and renewal is due March 1;
(III)
If owner number ends in "3"--delivery certificate expires
on March 31, and renewal is due April 1;
(IV)
If owner number ends in "4"--delivery certificate expires
April 30, and renewal is due May 1;
(V)
If owner number ends in "5"--delivery certificate expires
on May 31, and renewal is due June 1;
(VI)
If owner number ends in "6"--delivery certificate expires
on June 30, and renewal is due July 1;
(VII)
If owner number ends in "7"--delivery certificate expires
July 31, and renewal is due August 1;
(VIII)
If owner number ends in "8"--delivery certificate expires
August 31, and renewal is due September 1;
(IX)
If owner number ends in "9"--delivery certificate expires
September 30, and renewal is due October 1; and
(X)
If owner number ends in "0"--delivery certificate expires
October 31, and renewal is due November 1.
(C)
Identifying tanks. Within 30 days of the effective date
of this section, the owner and operator of USTs regulated under this section
are responsible for ensuring that a legible tag, label, or marking is permanently
applied upon or affixed to either the top of the fill tube or to a nonremovable
point in the immediate area of the fill tube for each regulated UST at the
facility. That tag, label, or marking must clearly and legibly show the designated
UST identification number of that UST at that facility and that identification
number must be identical to the UST identification number listed on the UST
registration and self-certification form filed with the agency under this
subsection. All UST identification numbers at a given facility must be numeric,
must begin with the number one (1) and must proceed sequentially without skipping
numbers (i.e.: 1, 2, 3...). In addition, for each compartmented UST where
a single UST has a separate fill tube for each internal compartment; the numeric
UST identification number must be the same for each fill tube serving that
single UST, however, to allow differentiation between compartments on the
UST registration and self-certification form and at the facility, that common
UST identification number must also be followed by a single additional alphabetic
identifier for each compartment, beginning with the letter "A" and proceeding
sequentially without skipping letters (i.e.: 1A, 1B, 1C...).
(D)
Temporary delivery authorization.
(i)
Upon receipt of a TNRCC construction notification form
indicating the pending installation of a new or replacement UST system(s),
the agency will issue a temporary delivery authorization for those tank systems.
(ii)
The temporary delivery authorization is valid for no more
than 90 days after the first delivery of regulated substance into the new
or replacement UST system.
(iii)
The UST owner and operator are responsible for maintaining
complete and accurate records of the date of the first deposit of regulated
substances into a new or replacement UST(s), as well as the date that the
initial 90 day period expires. The bill of lading for the first delivery of
regulated substance into any new or replacement UST at the facility must be
attached to the temporary delivery authorization for that facility.
(6)
Revocation of Delivery Certificate.
(A)
Grounds for revocation of delivery certificate. The commission
may revoke a delivery certificate for reasons including, but not limited to:
(i)
when the executive director determines that any of the
information contained or referenced in the compliance self-certification portions
of the UST registration and self-certification form was inaccurate at the
time the self-certification was made;
(ii)
when the tank owner and/or operator submits compliance
self-certification information to the executive director which he knows or
reasonably should have known to be false or deceptive; and
(iii)
for any other reason which in the opinion of the executive
director constitutes good cause for revocation.
(B)
Procedures for revocation of delivery certificate.
(i)
A proceeding to revoke a delivery certificate must be commenced
by:
(I)
the executive director through the filing of a petition;
or
(II)
the commission on its own motion.
(ii)
If the executive director determines good cause exists
to revoke a delivery certificate, the executive director shall file a petition
with the chief clerk and provide notice to the owner and operator of the tank(s)
in question. To the extent possible, the procedures required to assess administrative
penalties under Chapter 70 of this title (relating to Enforcement) shall be
followed to revoke a delivery certificate under this subchapter.
(iii)
In response to a petition, or on its own motion to revoke
a delivery certificate, the commission may:
(I)
revoke a certificate; and
(II)
issue any other orders permitted by law.
(iv)
Revocation of a delivery certificate is cumulative of
any other remedies available to the agency by law.
§334.9.Seller's Disclosure.
Effective on and after the effective date of this subchapter, any person
who sells or otherwise legally conveys a tank (or tank system) which is designed
or intended to be installed as an underground storage tank
(UST) must
[
(1)
The written notification
must
[
(2)
This notification requirement
applies
[
(3)
The written notification
must
[
(4)
For the purpose of fulfilling the disclosure requirements
of this section, the following language
(together with the information
in paragraph (1) of this section)
is deemed sufficient: "The underground
storage tank(s) which are included in this conveyance are presumed to be regulated
by the Texas
Natural Resource Conservation
[
§334.10.Reporting and Recordkeeping.
(a)
Reporting. Owners and operators of
underground storage
tank (UST)
[
(1)
construction notification, in accordance with §334.6
of this title (relating to Construction Notification
for Underground
Storage Tanks (USTs) and UST Systems
);
(2)
application for approval of any proposed UST system
in the Edwards Aquifer recharge or transition zones, in accordance with §334.6(a)(2)
of this title [
(3)
registration of UST systems and changes in information,
in accordance with §334.7 of this title (relating to Registration
for Underground Storage Tanks (USTs) and UST Systems
);
(4)
certification of
construction activities,
[
(5)
(No change.)
(6)
request for extension of time for an UST system that
is temporarily out of service, in accordance with §334.54[
(7)-(8)
(No change.)
(9)
reports, plans, and certifications related to suspected
and confirmed releases of regulated substances, including:
(A)-(C)
(No change.)
(D)
initial site
assessment
[
(E)
non-aqueous phase liquid
[
(F)-(G)
(No change.)
(H)
notification of cleanup initiation, in accordance with §334.81(e)
of this title [
(I)
certification of compliance with corrective action plan,
in accordance with §334.81(g) of this title [
(J)
(No change.)
(10)
notifications and reports relating to financial
assurance
[
[(A)
reports of financial condition, in accordance
with §334.95(f) of this title (relating to Financial Test of Self-Insurance);]
[(B)
notification of failure to secure alternate
financial assurance, in accordance with §334.95(g) of this title (relating
to Financial Test of Self-Insurance), §334.103(b) of this title (relating
to Cancellation or Nonrenewal by a Provider of Financial Assurance), and §334.108(c)
of this title (relating to Bankruptcy or Other Incapacity of Owner or Operator
or Provider of Financial Assurance);]
[(C)
request for release of excess guaranteed
funds, in accordance with §334.100(d)-(f) of this title (relating to
Trust Fund);]
[(D)
forms and reports regarding financial
responsibility, in accordance with §334.104 of this title (relating to
Reporting by Owner or Operator); and]
[(E)
notification of related bankruptcy proceedings,
in accordance with §334.108(a) of this title (relating to Bankruptcy
or Other Incapacity of Owner or Operator or Provider of Financial Assurance);
and]
(11)
any other reports, filings, notifications, or
other submittals required by this chapter, or otherwise required by the
agency
[
(b)
Recordkeeping.
(1)
General recordkeeping requirements.
(A)
Owners and operators of UST systems
are
[
(B)
Except as provided in subparagraphs (C) and (D) of this
paragraph, legible copies of all required records pertaining to
an
[
(C)
Except as provided in clause (v) of this subparagraph,
in
[
(i)
If the UST system is in operation, the records
must
[
(ii)
The records
must
[
(iii)
The owner or operator
must
[
(I)-(II)
(No change)
(iv)
The filing of the written information required in clause
(iii) of this subparagraph
must
[
(v)
The conditional authorization otherwise
allowed under this subparagraph for records maintenance at an alternative,
off-premises location is not applicable to the UST delivery certificate (or
temporary delivery authorization, if applicable) issued by the agency under §334.8(c)
of this title. This UST delivery certificate must be maintained on the premises
of all facilities with regulated USTs, must be posted by the UST system operator
and visible to the person(s) performing deliveries to the UST system.
(D)
For UST systems which have been permanently removed from
service in accordance with the applicable provisions of §334.55 of this
title (relating to Permanent Removal from Service), the facility owner may
submit the appropriate records required by this chapter to the
agency
[
(i)
(No change.)
(ii)
the facility owner
must
[
(iii)
the records
must
[
(2)
Required records and documents. Owners and
operators of UST systems
must
[
(A)
Legible copies of the following general records
must
[
(i)
original and amended registration documents, in accordance
with §334.7 of this title [
(ii)
original and amended certifications for UST installations
and financial
assurance
[
(iii)
(No change.)
(B)
Legible copies of applicable records and documents related
to technical standards for UST systems
must
[
(i)
application documents and
the agency's
[
(ii)-(ix)
(No change.)
(x)
records for temporary removal of UST systems from service,
in accordance with §334.54(f)(4) of this title [
(xi)
records for permanent removal of UST systems from service,
in accordance with §334.55(f) of this title [
(C)
Legible copies of all required financial assurance records
must
[
(D)
Legible copies of previous and current
registration and self-certification forms required to be filed annually with
the agency under §334.8(c) of this title, as well as UST delivery certificates,
must be maintained for at least five years from the original date of submittal.
§334.12.Other General Provisions.
(a)
Other regulations.
(1)
Except as provided in paragraph (2) of this subsection,
compliance with the provisions of this chapter by an owner or operator of
an underground storage tank
(UST)
system or aboveground storage
tank
(AST)
system
does
[
(2)
As provided in the Texas Water Code
(TWC)
, §26.359,
this chapter establishes a unified statewide program for underground and surface
water protection, and any local regulation or ordinance is effective only
to the extent the regulation or ordinance does not conflict with the standards
adopted for the design, construction, installation, or operation of
USTs
[
(b)
Owner and
operator responsibility
[
(1)
[
(2)
The commission shall consider the
person who is in day-to-day control of a petroleum storage tank system at
a site that is in violation of applicable statute or agency regulations to
be the:
(A)
person primarily responsible for taking corrective action,
for corrective action costs, for receiving a notice of violation, or for paying
a penalty assessed; and
(B)
primary subject of an enforcement action or order.
(3)
[
[
person primarily responsible
for taking corrective action, for corrective action costs, for receiving a
notice of violation, or for paying a penalty assessed; and]
[
primary subject of an enforcement
action or order under this chapter.]
(4)
[
(5)
[
(c)
Inspections,
monitoring, and testing
[
(1)
For the purposes of developing or assisting in the development
of any regulation, conducting any study, or enforcing this chapter, an owner
and/or operator of an
UST
[
(A)
(No change.)
(B)
permit a designated agent or employee of the
agency
[
(2)
For the purposes of developing or assisting in
the development of a regulation, conducting a study, or enforcing the provisions
of this chapter, the
agency's
[
(A)
enter at reasonable times an establishment or place in
which an
UST
[
(B)-(C)
(No change.)
(3)
The
agency
[
[(4)
Each inspection made under this
section must be begun and completed with reasonable promptness. Before a designated
agent or employee of the commission enters private property to carry out a
function authorized under this section, the agent or employee must give reasonable
notice and exhibit proper identification to the manager or owner of the property
or to another appropriate person. The commission's designated agent or employee
must observe the regulations of the establishment being inspected, including
regulations regarding safety, internal security, and fire protection.]
§334.15.Limits on Liability of Lender.
(a)
A lender, as defined in §334.2 of this title (relating
to Definitions), is not liable as an owner or operator under this chapter
solely because the lender holds indicia of ownership to protect a security
or lienhold interest in property. A lender is not liable under this subsection
if:
(1)
such lender has a security interest in a personal property
or in a fixture that is not attached to the real estate or a lienhold interest
on the real estate or fixture that is attached to the real estate as security
for a loan to finance the acquisition or development of property, to finance
the removal, repair, replacement, or upgrading of a regulated tank, or to
finance the performance of corrective action in response to a release of a
regulated substance from a tank, and the security or lienhold interest is
in:
(A)
an underground
storage tank (UST)
or aboveground
storage tank
(AST)
;
(B)
real property on which an
UST
[
(C)
in any other personal property attached to or located on
property on which an
UST
[
(2)
(No change.)
(b)
(No change.)
(c)
A lender that has a bona fide security or lienhold interest
in any real or personal property as described under subsection (a) of this
section and that forecloses on or receives an assignment or deed in lieu of
foreclosure and becomes the owner of that real or personal property is not
liable as an owner or operator under this chapter if the lender:
(1)
permanently
removes from service any
USTs
[
(2)-(3)
(No change.)
(d)
(No change.)
(e)
A lender described by subsection (a) of this section which
forecloses on or receives an assignment or deed in lieu of foreclosure on
real or personal property described in subsection (a) of this section is not
liable as an owner or operator under this chapter because the lender sells,
releases, liquidates, or winds up operations and takes measures to preserve,
protect, or prepare a secured
AST
[
(1)
did not participate in the management of an
AST
[
(2)
(No change.)
(f)
A lender may establish that the ownership indicia maintained
after foreclosure continues to be held primarily to protect a security interest
if, within 12 months after foreclosure, the lender:
(1)
lists the
AST
[
(2)
advertises the
AST
[
(A)
(No change.)
(B)
a trade or other publication appropriate for the
AST
[
(C)
a newspaper of general circulation in the area in which
the
AST
[
(g)
(No change.)
(h)
A lender that meets the conditions of subsection (f) nonetheless
becomes liable as owner and/or operator at the end of the 12-month period,
or when the lender no longer holds ownership indicia primarily to protect
its security interest, whichever occurs first. If a lender outbids, rejects,
or does not act on an offer of fair consideration for the
AST
[
§334.17.Privatization of Storage Tank Program.
The commission may retain agents for the performance of services related
to the duties and administrative tasks of this chapter. The agent(s)
will
[
§334.18.Limits on Liability of Taxing Unit.
(a)
Authorization and applicability. The provisions of this
section are authorized by Texas Water Code, §26.3516 (relating to Limits
on Liability of Taxing Units), and apply only to taxing units as defined in
the Property Tax Code, §1.04(12) that:
(1)
have foreclosed an ad valorem tax lien as security for
payment of ad valorem taxes on real property on which an aboveground storage
tank (AST) or an underground storage tank (UST) is located, or on any other
personal property attached to or located on property on which an AST or UST
is located, and
(2)
hold indicia of ownership in such storage tank, or
in such real or personal property, by virtue of a tax foreclosure on or after
September 1, 1999.
(b)
Removal from service and corrective action requirements.
If after foreclosure of an ad valorem tax lien on real property on which an
AST or an UST is located, a taxing unit performs or causes to be performed
any UST or AST removal from service or corrective action activities, then
these activities must be in accordance with the applicable provisions of this
chapter, including §334.54 of this title (relating to Temporary Removal
from Service), §334.55 of this title (relating to Permanent Removal from
Service), §334.129 of this title (relating to Release Reporting and Corrective
Action for Aboveground Storage Tanks (ASTs)), and Subchapter D of this chapter
(relating to Release Reporting and Corrective Action).
(c)
Limits on liability of a taxing unit.
(1)
A taxing unit is not liable as an owner or operator under
this chapter solely because the taxing unit holds indicia of ownership in
either an AST, UST, the real property on which the storage tank is located,
or any other personal property attached to or located on the real property
on which the storage tank is located, if these indicia of ownership is the
result of a tax foreclosure sale conducted under the provisions of the Texas
Tax Code.
(2)
A taxing unit is not liable as an owner or operator
under this chapter solely because the taxing unit sells, releases, liquidates,
or winds up operations and takes measures to preserve, protect, or prepare
the secured AST or the secured UST before the sale or other disposition of
either the storage tank, the real property on which the storage tank is located,
or any other personal property attached to or located on the real property
on which the storage tank is located, provided that the taxing unit:
(A)
did not participate in the management of either the AST
or UST, the real property on which this storage tank is located, or any other
personal property attached to or located on the real property on which the
storage tank is located, before the foreclosure of or an equivalent action
on either the storage tank or the real or personal property; and
(B)
performs the actions identified in paragraph (3) of this
subsection to establish that the ownership indicia maintained after foreclosure
continue to be held primarily to protect a payment of ad valorem taxes.
(3)
A taxing unit may establish that the ownership
indicia maintained after foreclosure continue to be held primarily to protect
the payment of ad valorem taxes if the taxing unit either:
(A)
lists the AST, UST, or the facility or real property on
which the storage tank is located, with an appropriate broker, dealer, or
agent who deals in that type of property; or
(B)
advertises the AST, UST, or the facility or real property
on which the storage tank is located, for sale or other disposition in either:
(i)
a real estate publication;
(ii)
a trade or other publication appropriate for the AST,
UST, or the facility or real property being advertised; or
(iii)
a newspaper of general circulation in the area in which
the AST, UST, or real property is located.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State, on May 19, 2000.
TRD-200003485
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §334.11
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Water Code (TWC), §5.103, which
provides the commission authority to adopt any rules necessary to carry out
its powers and duties under this code and other laws of this state and to
adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. This rule
repeal is also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
The repeal implements TWC, Chapter 26, Subchapter I, Underground Storage
Tanks.
§334.11.Enforcement.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003486
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.21-334.23
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.21.Fee Assessment.
(a)
Except as provided in subsection (e) of this section, an
annual facility fee of $50 is assessed for each underground storage tank
(UST)
subject to the registration provisions of §334.7 of this
title (relating to Registration
for Underground Storage Tanks (USTs)
and UST Systems
). The fees shall be billed to and paid by the owner
of the tank.
(b)
Payment of annual facility fees is due within 30 days of
the date the
agency
[
(c)
The
agency
[
(d)
An agency of the federal government is not subject to an
assessment under this section for any revenue used to match federal funds
for the remediation of leaking
USTs
[
(e)
An annual facility fee shall not be assessed for an
UST
[
§334.22.Failure To Make Payment.
(a)
(No change.)
(b)
The
agency
[
§334.23.Disposition of Fees, Interest, and Penalties.
The
agency
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003487
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.41-334.52, 334.54-334.56
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.41.Applicability.
(a)
Except as provided under subsection (b) of this section,
an underground storage tank
(UST)
shall be subject to all provisions
of this subchapter if such tank meets the general applicability requirements
of §334.1(b) of this title (relating to Purpose and Applicability).
(b)
The provisions of this subchapter shall not apply to any
of the following types of
UST
[
(1)
(No change.)
(2)
Any
UST
[
(c)
Any
UST
[
(d)
For the purposes of this subchapter only, a new
UST
[
§334.42.General Standards.
(a)
All components of any new or existing underground storage
tank
(UST)
system subject to the provisions of this subchapter
shall be designed, installed, and operated in a manner that will prevent releases
of regulated substances due to structural failure or corrosion [
(b)
For all components of any new or existing
UST
[
(c)
The owners and operators of UST systems subject to the
provisions of this subchapter and those persons and/or business entities who
engage in, perform, or supervise the installation, repair
,
or removal
of UST systems shall be responsible for ensuring that those UST systems are
designed, installed, repaired, removed
,
and operated in accordance
with the provisions of this subchapter, as provided under [
(d)
When provisions of this subchapter require compliance with
a specific code or standard of practice developed by a nationally recognized
association or independent testing laboratory, the most recent version of
the referenced code in effect at the time of the regulated
UST
[
(e)
Compliance with the provisions of this subchapter shall
not relieve an owner or operator of an
UST
[
(f)
Unless
otherwise stated in
a variance [
(1)
(No change.)
(2)
the manufacturers' specifications and instructions
for installation and operation of
UST
[
(g)
Any underground component of an
UST
[
§334.43.Variances and Alternative Procedures.
(a)
Prior to
proceeding in
[
(b)
The
agency
[
(c)
An owner or operator may submit a request for [
(1)
when conformance with
a requirement in
[
(2)
when new or alternative products, equipment, methods,
and/or procedures appropriate for use with
UST
[
(d)
Any request to the
agency
[
(1)
(No change.)
(2)
complete project identification, including:
(A)-(B)
(No change.)
(C)
name, address, and telephone number of owner's
/operator's
authorized
representative,
[
(D)
proposed date for implementation of
the
[
(3)
sufficient
documentation
[
(A)-(C)
(No change.)
(4)
[
(A)
(No change.)
(B)
results of previous experience involving use of the alternative
procedure
and/
or equipment;
(5)
complete explanation of the reasons why the requested
[
(6)
[
(e)
If a variance is granted by the agency, the owner
or operator
[
(f)
When a variance is sought, the owner and
operator must adhere to the requirement in question until such time as the
owner or operator receives a written variance which allows an alternative
procedure and/or equipment for that requirement.
(g)
Once a person has received a written variance
from the agency under this section, that person must adhere to the terms of
that variance as written, or to the terms of the requirement for which the
variance was sought.
§334.44.Implementation Schedules.
(a)
New
underground storage tank (UST)
[
(1)
Requirements for all new UST systems. All new UST systems
installed on or after the effective date of this subchapter, which
contain,
have contained, or will contain
[
(A)-(D)
(No change.)
(2)
Additional requirements for new hazardous substance
UST systems. In addition to the requirements applicable to all new UST systems
in paragraph (1) of this subsection, all new hazardous substance UST systems
installed on or after the effective date of this subchapter shall also be
in compliance with the following requirements from the time of installation
through the entire operational life of the system.
(A)
Such systems shall be properly constructed or equipped
with a secondary containment system which shall be designed, constructed,
and installed in accordance with the provisions of §334.45(d) of this
title [
(B)
Such systems shall be properly constructed or equipped
with a release detection system capable of monitoring either the interstitial
spaces between the primary and secondary walls of any double-wall UST components,
or the spaces between the primary UST component walls and all secondary containment
barriers, as applicable, in accordance with the provisions in §334.50(c)
of this title [
(b)
Existing UST systems.
(1)
Requirements for all existing UST systems. All existing
UST systems (i.e., UST systems for which installation has commenced or has
been completed on or prior to December 22, 1988) which
contain or have
contained
[
(A)
Tank integrity assessment and cathodic protection. No later
than December 22, 1998, all existing UST systems shall be brought into compliance
with the applicable tank integrity assessment and cathodic protection requirements
of §334.47(b)(1) of this title [
(B)
Spill and overfill prevention. No later than December 22,
1994, all tanks in an existing UST system shall be brought into compliance
with the applicable spill and overfill prevention equipment requirements of §334.51(b)
of this title [
(C)
Release detection for existing UST system piping.
(i)
Release detection for pressurized piping. No later than
December 22, 1990, all piping in an existing UST system that routinely conveys
regulated substances under pressure (i.e., which operates at greater than
atmospheric pressure) shall be brought into compliance with the pressurized
piping release detection requirements in §334.50(b)(2)(A) of this title
[
(ii)
Release detection for suction piping and gravity-flow
piping. All piping in an existing UST system that routinely conveys regulated
substances either by gravity flow or under suction (i.e., which operates at
less than atmospheric pressure) shall be brought into compliance with the
suction and gravity-flow piping release detection requirements in §334.50(b)(2)(B)
of this title [
(D)
Release detection for existing tanks.
(i)
Except as provided in clause (ii) of this subparagraph,
all tanks in an existing UST system shall be brought into compliance with
the tank release detection requirements in §334.50(b)(1) of this title
[
(I)-(VII)
(No change.)
(ii)
(No change.)
(2)
Additional requirements for existing hazardous
substance UST systems. In addition to the requirements applicable to all existing
UST systems in paragraph (1) of this subsection, all existing hazardous substance
UST systems shall also be brought into compliance with additional secondary
containment and release detection standards in accordance with the following
schedule.
(A)
No later than December 22, 1998, all existing hazardous
substance UST systems shall be equipped with a secondary containment system
meeting the design, construction, and installation requirements in §334.45(d)
of this title [
(B)
No later than December 22, 1998, all existing hazardous
substance UST systems shall be equipped with a release detection system capable
of monitoring either the interstitial spaces between the primary and secondary
walls of any double-walled UST components, or the spaces between the primary
UST component walls and any secondary containment barriers, as applicable,
in accordance with the provisions in §334.50(c) of this title [
§334.45.Technical Standards for New Underground Storage Tank Systems.
(a)
General requirements.
(1)
Any new
underground storage tank (UST)
[
(2)-(5)
(No change.)
(b)
Technical standards for new tanks.
(1)
Tank design and construction. Each new tank shall be properly
designed, constructed, and protected from corrosion in accordance with one
or more of the methods listed in subparagraphs (A)-
(G)
[
(A)
The tank may be constructed of fiberglass-reinforced plastic.
Tanks constructed under this method shall meet
UL Standard 1316, "Standard
for Safety for Glass-Fiber-Reinforced Plastic Underground Storage Tanks for
Petroleum Products, Alcohols, and Alcohol-Gasoline Mixtures;
[
[(i)
UL Standard 1316, "Standard for Glass-Fiber-Reinforced
Plastic Underground Storage Tanks for Petroleum Products"; or]
[(ii)
ASTM Standard D 4021, "Standard Specification
for Glass-Fiber-Reinforced Polyester Underground Petroleum Storage Tanks."]
(B)
The tank may be constructed of coated steel and equipped
with a factory-installed cathodic corrosion protection system. Any tank constructed
under this method shall be thoroughly coated with a suitable dielectric material,
shall be equipped with a factory-installed cathodic corrosion protection system
meeting the appropriate design and operational requirements in §334.49(c)(1)
of this title [
(i)
UL Standard 58, "Standard for
Safety for
Steel
Underground Tanks for Flammable and Combustible Liquids"; and
(ii)
Part I of UL Standard 1746, "
Standard for Safety
for External
Corrosion Protection Systems for Steel Underground Storage
Tanks," or STI Standard, "Specification for sti- P
3
System of External Corrosion Protection of Underground Steel Storage
Tanks."
(C)
The tank may be constructed of coated steel and equipped
with a field-installed cathodic corrosion protection system. Any tank constructed
under this method shall be thoroughly coated with a suitable dielectric material,
shall be equipped with a field-installed cathodic protection system meeting
the appropriate design and operational requirements in §334.49(c)(2)
of this title [
(i)
UL Standard 58, "Standard for
Safety for
Steel
Underground Tanks for Flammable and Combustible Liquids"; and
(ii)
NACE
International
Standard
RP0285-95,
"Corrosion Control of Underground Storage Tank Systems by Cathodic Protection
[
(D)
The tank may be factory-constructed either as a steel/fiberglass-reinforced
plastic composite tank, or as a steel tank with a bonded fiberglass-reinforced
plastic external cladding
or as a steel tank with a bonded fiberglass
reinforced polyurethane coating
. Any tank constructed under this method
is not required to be equipped with a cathodic protection system, provided
that the tank meets the following requirements
:
[
(i)
The tank shall be equipped with a factory-applied external
fiberglass-reinforced plastic or fiberglass reinforced polyurethane
cladding or laminate which has a total dry film thickness of 100 mils minimum
and 125 mils nominal
;
[
(ii)
The tank shall be operated and maintained in accordance
with the [
(iii)
The tank shall be designed and fabricated in accordance
with one or more of the following standards:
(I)
Part II of UL Standard 1746, "
Standard for Safety
for External
Corrosion Protection Systems for Steel Underground Storage
Tanks";
(II)
Steel Tank Institute (STI)
[
(III)
any other UL
, or STI, or Underwriters' Laboratories
of Canada (ULC) standard which incorporates the requirements contained in
the standards listed in either subclause (I) or (II) of this clause; and
[
(iv)
The tank shall be electrically isolated from all other
metallic structures by use of dielectric bushings or other appropriate methods
utilized in accordance with applicable industry standards
.
(E)
The tank may be factory-constructed as
a steel tank with a bonded polyurethane external coating. Any tank constructed
under this method is not required to be equipped with a cathodic protection
system, provided that the tank meets the following requirements:
(i)
The tank shall be equipped with a factory-applied external
polyurethane coating which has a minimum dry film thickness of 70 mils;
(ii)
The tank shall be operated and maintained in accordance
with the applicable requirements of §334.49 of this title;
(iii)
The tank shall be designed and fabricated in accordance
with one or more of the following standards:
(I)
Part IV of UL Standard 1746, "Standard for Safety for External
Corrosion Protection Systems for Steel Underground Storage Tanks";
(II)
Steel Tank Institute (STI) ACT-100-U, "Specification for
External Corrosion Protection of Composite Steel Underground Storage Tanks";
or
(III)
any other UL, or STL, or Underwriters' Laboratories of
Canada (ULC) standard which incorporates the requirements contained in the
standards listed in either subclause (I) or (II) of this clause; and
(iv)
The tank shall be electrically isolated from all other
metallic structures by use of dielectric bushings or other appropriate methods
utilized in accordance with applicable industry standards.
(F)
The tank may be factory-constructed as
a steel tank completely contained within a nonmetallic external tank jacket.
Any tank constructed under this method is not required to be equipped with
a cathodic protection system, provided that the tank meets the following requirements:
(i)
The tank shall be equipped with a factory-constructed nonmetallic
external jacket which provides both secondary containment and corrosion protection;
(ii)
The tank shall be operated and maintained in accordance
with the applicable requirements of §334.49 of this title;
(iii)
The tank shall be designed and fabricated in accordance
with the following:
(I)
Part III of UL Standard 1746, "Standard for Safety for
External Corrosion Protection Systems for Steel Underground Storage Tanks";
or
(II)
any other UL, or STI, or Underwriters' Laboratories of
Canada (ULC) standard which incorporates the requirements contained in the
standard listed in subclause (I) of this clause; and
(iv)
The tank shall be electrically isolated from all other
metallic structures by use of dielectric bushings or other appropriate methods
utilized in accordance with applicable industry standards.
(G)
[
(2)-(3)
(No change.)
(4)
Other new tank components.
(A)
Fittings. All metallic tank fittings (e.g., bung hole plugs)
shall be protected from corrosion and shall be either:
(i)-(ii)
(No change.)
(iii)
cathodically protected in accordance with the applicable
provisions in §334.49(c) of this title [
(B)-(C)
(No change.)
(c)
Technical standards for new piping.
(1)
Piping design and construction. All new underground piping
(including associated valves, fittings, and connectors) in an
UST
[
(A)
The piping may be constructed of fiberglass-reinforced
plastic. Piping constructed under this method shall meet the following standards:
(i)
UL Standard 971, "
Standard for Safety for Nonmetallic
Underground Piping for Flammable Liquids
[
(ii)
UL Standard 567, "
Standard for Safety for
Pipe
Connectors for
Petroleum Products
[
(B)
The piping may be constructed of coated steel. Piping constructed
under this method shall be thoroughly coated with a suitable dielectric material,
shall be cathodically protected with a field- installed cathodic protection
system meeting the appropriate design and operational requirements in §334.49(c)
of this title [
(i)-(iii)
(No change.)
(iv)
NACE
International
Standard
RP0169-96
, "Control of External Corrosion on
Underground or
Submerged
Metallic Piping Systems."
(C)
The piping may be constructed of flexible
nonmetallic material. Piping constructed under this method shall meet the
following standards:
(i)
UL Standard 971, "Standard for Safety for Nonmetallic Underground
Piping for Flammable Liquids"; and
(ii)
UL Standard 567, "Standard for Safety for Pipe Connectors
for Petroleum Products and LP Gas."
(D)
[
(2)
Release detection for new piping. All new piping
shall be monitored for releases of regulated substances in accordance with §334.50(b)(2)
of this title [
(3)
Other new piping components.
(A)
For piping systems in which regulated substances are conveyed
under pressure to an aboveground dispensing unit, a UL-listed (or
agency
accepted
[
(B)
UL-listed (or
agency accepted
[
(C)
If buried and in contact with soil or backfill materials,
all metallic pipe, valves, and fittings (including flexible connectors) shall
be equipped with
corrosion protection
[
(D)
Only UL-listed (or agency accepted equivalent
listing by Underwriters' Laboratories of Canada (ULC), or Factory Mutual Research
Corporation (FMRC)) flexible connectors or nonmetallic piping listed for aboveground
use or listed for use in sumps can be used without backfill cover in sumps,
manways, or dispenser pans.
(d)
Secondary containment for UST systems.
(1)
Applicability.
(A)
(No change.)
(B)
A double-wall tank and piping system (or approved alternative)
meeting the applicable requirements of this subchapter shall be installed
for any UST system situated in the Edwards Aquifer recharge or transition
zones, in accordance with Chapter
213
[
(C)
The
agency
[
(2)
(No change.)
(3)
Secondary containment for tanks. One or more of the
following methods may be used to provide secondary containment for tanks.
(A)
Double-wall tanks. Double-wall tanks may be used to comply
with the secondary containment requirements of this subchapter, provided that
such tanks shall meet the following additional provisions.
(i)
(No change.)
(ii)
The double-wall tank (including both the primary and secondary
tank walls) shall be protected from corrosion in accordance with one or more
of the allowable methods included in §334.49 of this title [
(iii)
The double-wall tank shall be designed, installed, operated,
and maintained in accordance with one of the applicable codes or standards
of practice listed as follows:
(I)
for fiberglass-reinforced plastic tanks: UL Standard 1316,
"Standard for
Safety for
Glass-Fiber-Reinforced Plastic Underground
Storage Tanks for Petroleum Products
, Alcohols, and Alcohol-Gasoline
Mixtures.
" [
(II)
for steel tanks: STI Standard, "Standard for Dual Wall
Underground Steel Storage Tanks," UL Standard 58, "Standard for
Safety
for
Steel Underground Tanks for Flammable and Combustible Liquids,"
and other applicable UL standards for double-wall steel tanks; and
(III)
any other code or standard of practice developed by a
nationally
[
(iv)
The double-wall tank system shall be installed in accordance
with the requirements in §334.46(f)(2) of this title [
(B)
External liners. Tank excavation liners may be used to
comply with the secondary containment requirements of this paragraph, provided
that such liners shall meet the following additional provisions.
(i)
The tank excavation liner shall consist of an artificially
constructed material that is of sufficient strength, thickness, puncture-resistance,
and impermeability (i.e., allow permeation at a rate of no more than 0.25
ounces per square foot per 24 hours for the stored regulated substance) in
order to permit the collection and containment of any releases from the
UST
[
(ii)
The liner shall be protected from corrosion in accordance
with one or more of the allowable methods included in §334.49 of this
title [
(iii)-(iv)
(No change.)
(v)
The liner shall be installed in accordance with the requirements
in §334.46(f)(4) of this title [
(4)
Secondary containment for piping. One or
more of the following methods shall be used to provide secondary containment
for piping.
(A)
Double-wall piping. Double-wall piping systems may be used
to comply with the secondary containment requirements of this subchapter,
provided that such piping systems meet the following additional provisions.
(i)
(No change.)
(ii)
The double-wall piping system (including both the primary
and secondary piping) shall be protected from corrosion in accordance with
one or more of the allowable methods included in §334.49 of this title
[
(iii)
(No change.)
(iv)
The double-wall piping system shall be installed in accordance
with the requirements in §334.46(f)(3) of this title [
(B)
(No change.)
(e)
Technical standards for other new UST system equipment.
(1)
Vent lines. All underground portions of the vent lines
(including all associated underground valves, fittings, and connectors) shall
be designed and constructed in accordance with the piping requirements in
subsection (c)(1) of this section, shall be properly protected from corrosion
in accordance with one of the allowable methods in §334.49 of this title
[
(2)
Fill pipes. All fill pipes (including any connected
fittings) shall be:
(A)
(No change.)
(B)
properly protected from corrosion in accordance with one
of the allowable methods in §334.49 of this title [
(C)
properly enclosed in or equipped with spill and overfill
prevention equipment as required in §334.51(b) of this title [
(D)
(No change.)
(3)
Release detection equipment. All release detection
equipment shall be designed and constructed in accordance with the requirements
for the particular type of equipment, as described in the applicable provisions
in §334.50 of this title [
(4)
Monitoring wells and observation wells.
(A)
All monitoring wells and observation wells installed on
or after the effective date of this subchapter shall be designed, constructed,
and installed in accordance with the requirements in §334.46(g) of this
title [
(B)
Each separate tank hole in a new UST system installed on
or after the effective date of this subchapter shall include a minimum number
of four-inch diameter (nominal) observation wells, as specified in the following
clauses:
(i)-(ii)
(No change.)
(f)
Records for technical standards for new UST systems. Owners
and operators of new UST systems shall maintain adequate records to demonstrate
compliance with the applicable provisions in this section, which at a minimum,
shall include all records required in §334.46(i) of this title [
§334.46.Installation Standards for New Underground Storage Tank [
(a)
General installation procedures. Any new
underground
storage tank (UST)
[
(1)
Standards. All tanks, piping, and associated equipment
shall be installed in accordance with at least one of the following standards,
as applicable:
(A)-(C)
(No change.)
(D)
any other code or standard of practice developed by a nationally-
recognized association or independent testing laboratory that has been reviewed
and determined by the
agency
[
(2)-(5)
(No change.)
(b)
Anchoring systems. Unless otherwise approved by the
agency
[
(1)-(2)
(No change.)
(c)
Piping system installation.
(1)
The piping layout shall be designed in a manner that will
minimize the crossing of other lines and conduits, and the crossing of tanks
and other
UST
[
(2)-(3)
(No change.)
(d)
Installation testing for new tanks and piping.
(1)-(2)
(No change.)
(3)
In addition to the air tests, a tank tightness test
and a piping tightness test meeting the requirements of §334.50(d)(1)(A)
and (b)(2)(A)(ii)(I), respectively, of this title (relating to Release Detection)
shall be performed after the backfill has been placed but prior to bringing
the new
UST
[
(4)
Additional tests required.
In addition
to the air tests and tightness tests required in this subsection, the following
additional installation tests shall be required, as applicable.
(A)
(No change.)
[(B)
For tanks which are factory constructed
as either steel/fiberglass-reinforced plastic composite tanks or for steel
tanks with a bonded fiberglass-reinforced plastic external cladding, an appropriate
test shall be conducted by a qualified corrosion technician or qualified corrosion
specialist to ensure that the steel tank shell remains electrically isolated
from the surrounding soil, backfill, groundwater, and other metal components.]
[(i)
Such test shall be performed after the tank installation
is completed but prior to placing the tank into operation, and shall be conducted
by taking structure to soil voltage readings in accordance with procedures
established by a code or standard of practice developed by a nationally recognized
association or independent testing laboratory.]
[(ii)
If the test indicates that the steel tank shell is no
longer electrically isolated, a qualified corrosion specialist shall review
the test results and thoroughly inspect the area of the tank installation
to ascertain the extent of electrical isolation and corrosion protection for
the steel tank shell.]
[(iii)
If the qualified corrosion specialist determines that
the steel tank shell is no longer adequately protected from corrosion, then
the owner or operator shall assure that one or more of the following procedures
are completed before the tank is placed into operation.]
[(I)
Appropriate repairs or modifications shall be made to
restore the electrical isolation of the steel tank shell.]
[(II)
A field-installed cathodic protection system shall be
installed in accordance with the requirements in §334.49(c)(2) of this
title (relating to Corrosion Protection).]
(B)
[
(i)
If the test indicates that the cathodic protection system
is inoperable or inadequate, a qualified corrosion specialist shall review
the test results and thoroughly inspect the UST system to ascertain the extent
of corrosion protection.
(ii)
If the qualified corrosion specialist determines that
the UST system component is no longer adequately protected from corrosion,
then the owner or operator shall assure that one or more of the following
procedures are completed before the UST system is placed into operation.
(I)
Appropriate repairs or modifications shall be made to restore
the cathodic corrosion protection to the applicable UST system components.
(II)
The cathodic protection system shall be replaced with
another operable cathodic protection system which will provide adequate corrosion
protection to the applicable UST system components, in accordance with the
requirements in §334.49(c)(2) of this title [
(e)
Installation of cathodic protection systems. The installation
of any field-installed cathodic protection system in a new or existing
UST
[
(f)
Installation of secondary containment systems.
(1)-(3)
(No change.)
(4)
Installation of external liners.
(A)-(D)
(No change.)
(E)
For
UST
[
(F)-(I)
(No change.)
(g)
Installation of monitoring wells and observation wells.
All monitoring wells and observation wells installed in conjunction with
an
[
(1)
General requirements for both monitoring wells and observation
wells.
(A)
(No change.)
(B)
Except for observation wells installed pursuant to §334.45(e)(4)(B)
of this title [
(C)-(D)
(No change.)
(E)
When installed or constructed for the purposes of compliance
with one or more of the release detection methods in §334.50(d) of this
title [
(F)-(H)
(No change.)
(2)
Additional requirements for monitoring wells.
In addition to the general requirements of paragraph (1) of this subsection,
all monitoring wells installed in conjunction with an
UST
[
(3)
Additional requirements for observation wells. In
addition to the general requirements of paragraph (1) of this subsection,
the following requirements shall be applicable to all observation wells installed
in conjunction with an
UST
[
(A)
All observation wells that are regulated as monitoring
wells by the Water Well Drillers Board shall be constructed or installed in
accordance with the applicable requirements in
16 TAC, Chapter 76, and
TWC, Chapter 32 (relating to Water Well Drillers.
[
(B)
All observation wells that are not regulated as monitoring
wells by the Water Well Drillers Board shall be constructed or installed in
accordance with the following minimum requirements.
(i)-(iii)
(No change.)
(iv)
For observation wells installed or constructed on or after
the effective date of this subchapter in an existing UST system where the
backfill consists of materials other than specialized or select materials
(e.g., native soils), the well shall be constructed or installed in accordance
with the applicable standards in
16 TAC, Chapter 76
[
(h)
Certification of installation.
(1)
All owners and operators of new
UST
[
(A)
For all UST system installations commencing on or after
the effective date of this subchapter but before February 1, 1990, the owner
or operator shall assure that at least one of the following criteria is met:
(i)-(iii)
(No change.)
(iv)
the installation activities have been reviewed and determined
by the
agency
[
(B)
For all UST system installations commencing on or after
February 1, 1990, the owner or operator shall assure that the UST system installation
is conducted by an installer licensed by the
agency
[
(2)
The [
(i)
Installation records.
(1)
(No change.)
(2)
Owners and operators shall maintain the following
records for the operational life of the UST system:
(A)
general information relating to the installation activity,
including:
(i)-(ii)
(No change.)
(iii)
copies of all related notifications or reports filed
with the
agency
[
(I)
registration information, as required by §334.7 of
this title (relating to Registration
for Underground Storage Tanks (USTs)
and UST Systems
); and
(II)
installation certification information, as required by §334.8(a)
of this title [
(B)-(C)
(No change.)
(3)
(No change.)
§334.47.Technical Standards for Existing Underground Storage Tank Systems.
(a)
General requirements.
(1)
Alternatives for existing
underground storage tank
(UST)
[
(A)
the requirements for technical standards and installation
of new
UST
[
(B)
(No change.)
(2)
(No change.)
(b)
Minimum upgrading requirements for all existing UST systems.
(1)
Tank integrity assessment and UST system cathodic protection.
No later than December 22, 1998, all tanks in an existing UST system shall
be assessed for structural integrity, and all underground metallic components
of an existing UST system shall be equipped with a cathodic protection system,
as provided in the following subparagraphs.
(A)
Tank integrity assessment. The tank shall be assessed for
structural integrity and for the presence of corrosion holes by one or more
of the following methods.
(i)
The tank may be equipped with one or more of the release
detection systems meeting the applicable requirements of §334.50(d)(4)-
(10)
[
(ii)
The tank may be tested by conducting at least two tank
tightness tests meeting the requirements of §334.50(d)(1)(A) of this
title [
(iii)
When the tank upgrading is to include the installation
of an interior lining meeting the applicable provisions in §334.52(b)
of this title (relating to UST System Repairs and Relining), a site assessment
or release determination may be conducted prior to the installation of the
interior lining and the cathodic protection system. Such site assessment or
release determination shall be conducted in accordance with the provisions
of §334.55(e) of this title [
(iv)
(No change.)
(v)
Prior to the installation of the cathodic protection system,
the tank may be assessed for structural integrity and the presence of corrosion
holes by an alternate method which has been reviewed and determined by the
agency
[
(B)
Repairs or corrective action. If the results of the tank
integrity assessment (required by subparagraph (A) of this paragraph) indicate
that the existing tank is not structurally sound and/or that a release of
regulated substances has occurred, then the owner and operator shall:
(i)
(No change.)
(ii)
conduct one of the following activities, as applicable:
(I)
perform appropriate repairs or relining of the tank, in
accordance with the applicable requirements of §334.52 of this title
[
(II)
permanently remove the tank from service in accordance
with the applicable provisions in §334.55 of this title [
(C)
Field-installed cathodic protection system. After confirmation
or restoration of the structural integrity of the tank, all underground metal
components of the
UST
[
(2)
Adding spill and overfill prevention equipment.
No later than December 22, 1994, all existing
USTs
[
(3)
Adding release detection for UST system piping.
(A)
Release detection for pressurized piping. No later than
December 22, 1990, all piping in an existing UST system that routinely conveys
regulated substances under pressure (i.e., which operates at greater than
atmospheric pressure) shall be brought into compliance with the pressurized
piping release detection requirements in §334.50(b)(2)(A) of this title
[
(B)
Release detection for suction piping and gravity-flow piping.
All piping in an existing UST system that routinely conveys regulated substances
either under suction (i.e., which operates at less than atmospheric pressure)
or by gravity-flow shall be brought into compliance with the applicable release
detection requirements in §334.50(b)(2)(B) of this title [
(4)
Adding release detection for tanks.
(A)
Except as provided in subparagraph (B) of this paragraph,
all tanks at an existing UST system shall be brought into compliance with
the tank release detection requirements in §334.50(b)(1) of this title
[
(i)-(vii)
(No change.)
(B)
(No change.)
(C)
When two or more existing tanks are located in a common
tank hole, and when the selected method of release detection is either vapor
monitoring or groundwater monitoring in accordance with §334.50(d)(5)
and (6) of this title [
(c)
Additional upgrading requirements for existing hazardous
substance UST systems. In addition to the upgrading requirements applicable
to all existing UST systems in subsections (a) and (b) of this section, all
existing hazardous substance UST systems (e.g., UST system for which installation
has commenced or has been completed on or prior to December 22, 1988) shall
be equipped or retrofitted with a secondary containment system and an associated
release detection system in accordance with the following provisions.
(1)
No later than December 22, 1998, all existing hazardous
substance UST systems shall be equipped with a secondary containment system
meeting the design, construction, and installation requirements in §334.45(d)
of this title [
(2)
No later than December 22, 1998, all existing hazardous
substance UST systems shall be equipped with a release detection system capable
of monitoring either the interstitial spaces between the primary and secondary
walls of any double-walled UST component, or the spaces between the primary
UST component walls and any external liners, as applicable, in accordance
with the provisions in §334.50(c) of this title [
(d)
Records for upgrading of existing UST systems.
(1)
(No change.)
(2)
Owners and operators shall maintain the following
records for the operational life of the UST system:
(A)
general information related to the tank integrity assessment
and cathodic protection requirements in subsection (b) of this section, including:
(i)-(ii)
(No change.)
(iii)
copies of all related notifications or reports filed
with the
agency
[
(I)
registration information, as required by §334.7 of
this title (relating to Registration
for Underground Storage Tanks (USTs)
and UST Systems
); and
(II)
installation certification information, as required by §334.8(a)
of this title (relating to Certification
for Underground Storage Tanks
(USTs) and UST Systems
);
(B)
as-built drawings (or plans), which have been drawn to
scale and in sufficient detail so as to accurately depict and describe the
sizes, dimensions, and locations of any UST system components or equipment
added or installed on or after the effective date of this subchapter which
are installed pursuant to one of the construction activities included in §334.6(b)(1)(A)
of this title (relating to Construction Notification
for Underground
Storage Tanks (USTs) and UST Systems
); and
(C)
(No change.)
(3)
(No change.)
§334.48.General Operating and Management Requirements.
(a)
Prevention of releases. All owners and operators of
underground storage tank (UST)
[
(b)
(No change.)
(c)
Inventory control. On or after the effective date of this
subchapter, regardless of which method of release detection is used for compliance
with §334.50 of this title (relating to Release Detection), effective
manual or automatic inventory control procedures shall be conducted for all
UST systems at retail service stations where petroleum substances used as
motor fuels are stored and dispensed from fixed equipment into the fuel tanks
of motor vehicles and where such dispensing is an act of retail sale. Such
inventory control procedures shall be in accordance with
§334.50(d)(1)(B)
of this title
[
(d)
(No change.)
(e)
Operational requirements for release detection equipment.
Owners and operators of all new and existing
UST
[
(f)
(No change.)
(g)
Operation and maintenance records. Owners and operators
shall maintain records relating to the operation and maintenance of a UST
system (including records related to inspection, servicing, testing, and inventory
control) as prescribed in this section for at least five years, and such records
shall be maintained in accordance with §334.10(b) of this title [
§334.49.Corrosion Protection.
(a)
General requirements.
(1)
Owners and operators of underground storage tank (UST)
systems (or
underground metal
UST system components) which are
required to be protected from corrosion shall comply with the requirements
in this section to ensure that releases due to corrosion are prevented [
(2)
All corrosion protection systems shall be designed,
installed, operated, and maintained in a manner that will ensure that corrosion
protection will be continuously provided to all
underground metal
components of the
UST
[
(3)
Any alternative methods for corrosion protection or
variances from the requirements of this section are prohibited, except when
reviewed and approved by the
agency
[
(4)
Corrosion protection in accordance with the provisions
of this section shall be provided to all underground
metal
components
of
an
[
(5)
For internal corrosion protection, the interior bottom
surface of new metal tanks installed on or after
September 29, 1989,
[
(6)
When provisions of this subsection
require compliance with a specific code or standard of practice developed
by a nationally recognized association or independent testing laboratory,
the most recent version of the referenced code in effect at the time of the
regulated UST activity shall be applicable.
(7)
For an UST system to be placed temporarily
out of service, the owner or operator must comply with the requirements of §334.54(c)
of this title (relating to Temporary Removal from Service).
(b)
Allowable corrosion protection methods. All components
of
an
[
(1)-(3)
(No change.)
(4)
Tanks (only) may be factory-constructed either as
a steel/fiberglass-reinforced plastic composite tank, or as a steel tank with
a bonded fiberglass-reinforced plastic external cladding or laminate,
or as a steel tank with a bonded fiberglass reinforced polyurethane coating,
as a steel tank with a bonded polyurethane external coating, or as a steel
tank completely contained within a nonmetallic external tank jacket
in accordance with the requirements in §334.45(b)(1)(D)
, (E), or
(F)
of this title,
as applicable
[
(5)-(6)
(No change.)
(7)
Corrosion protection in accordance
with the requirements of this subchapter is not required if it is determined
by a corrosion specialist that corrosion protection of an underground metal
UST system or UST system component is unnecessary because the site is not
corrosive enough to cause a release due to corrosion for the operational life
of the UST system. The upgrade or repair of an existing corrosion protection
system for an underground metal UST system or UST system component is not
required if it is determined by a corrosion specialist that said upgrading
or repair is unnecessary and that the protection provided by the existing
corrosion protection system is sufficient to prevent a release due to corrosion
for the operational life of the UST system. In either case, the determination
of the corrosion specialist must be made in writing, must be signed by the
corrosion specialist (corrosion specialist must also seal the written determination
if he or she is a qualified duly licensed professional engineer in Texas),
and must be maintained by the owner and operator as part of the records for
the facility in keeping with the requirements of subsection (e) of this section
and §334.10(b) of this title (relating to Reporting and Recordkeeping).
(c)
Cathodic protection systems.
(1)
Factory-installed cathodic protection systems.
(A)
A factory-installed cathodic protection system on any
UST
[
(B)
(No change.)
(2)-(4)
(No change.)
(d)
Requirements for other corrosion protection methods.
(1)
Electrically isolated components.
(A)
Any metal component of an
UST
[
(i)-(ii)
(No change.)
(iii)
The component may be inspected and/or tested by an alternative
method which has been reviewed and determined by the
agency
[
(B)-(D)
(No change.)
(2)
Dual-protected tanks. If a steel/fiberglass-reinforced
plastic composite tank, [
(e)
Corrosion protection records.
(1)
(No change.)
(2)
Owners and operators shall maintain records adequate
to demonstrate compliance with the corrosion protection requirements in this
section, and in accordance with the following minimum requirements.
(A)
All appropriate installation records related to the corrosion
protection system, as listed in §334.46(i) of this title [
(i)-(iii)
(No change.)
(B)
(No change.)
§334.50.Release Detection.
(a)
General requirements.
(1)
Owners and operators of new and existing underground storage
tank (UST) systems shall provide a method, or combination of methods, of release
detection which shall be:
(A)
capable of detecting a release from any portion of the
UST
[
(B)
installed, calibrated, operated, [
(C)
capable of meeting the particular performance requirements
of such method (or methods) as specifically prescribed in this section, based
on the performance claims by the equipment manufacturer or
methodology
provider/vendor
[
(i)
Any performance claims, together with their bases or methods
of determination
including the summary portion of the independent third
party evaluation
, shall be obtained
by the owner and/or operator
from the equipment manufacturer
, methodology provider,
or
installer and shall be in writing.
(ii)
When any of the following release detection methods are
used on or after December 22, 1990 (except for methods permanently installed
and in operation prior to that date), such method shall be capable of detecting
the particular release rate or quantity specified for that method such that
the probability of detection shall be at least 95% and the probability of
false alarm shall be no greater than 5.0%:
(I)-(II)
(No change.)
(III)
automatic line leak detectors for piping, as prescribed
in subsection (b)(2)(A)(i) of this section; [
(IV)
piping tightness testing, as prescribed in subsection
(b)(2)(A)(ii)(I) of this section
;
[
(V)
electronic leak monitoring systems for
piping, as prescribed in subsections (b)(2)(A)(ii)(III) and (B)(i)(III) of
this section; and
(VI)
statistical inventory reconciliation
(SIR), as prescribed in subsection (d)(9) of this section.
(2)-(3)
(No change.)
(4)
As prescribed in §334.47(a)(2) of this title
(relating to Technical Standards for Existing UST Systems), any existing UST
system that cannot be equipped or monitored with a method of release detection
that meets the requirements of this section shall be permanently removed from
service in accordance with the applicable procedures in §334.55 of this
title (relating to Permanent Removal from Service) no later than 60 days after
the implementation date for release detection as prescribed by the applicable
schedules in §334.44 of this title [
(5)
Any owner or operator who plans to install a release
detection method for an UST system shall comply with the applicable construction
notification requirements in §334.6 of this title (relating to Construction
Notification
for Underground Storage Tanks (USTs) and UST Systems
),
and upon completion of the installation of such method shall also comply with
the applicable registration and certification requirements of §334.7
of this title (relating to Registration
for Underground Storage Tanks
(USTs) and UST Systems
) and §334.8 of this title (relating to
Certification
for Underground Storage Tanks (USTs) and UST Systems
).
(6)
Any equipment installed or used for conducting release
detection for
an
[
(7)
For an UST system to be placed temporarily
out of service, the owner or operator must comply with the requirements of §334.54(c)
of this title (relating to Temporary Removal from Service).
(b)
Release detection requirements for all UST systems. Owners
and operators of all UST systems shall ensure that release detection equipment
or procedures are provided in accordance with the following requirements.
(1)
Release detection requirements for tanks.
(A)
Except as provided in subparagraphs (B) and (C) of this
paragraph, all tanks shall be monitored
in a manner which will detect
a
[
(B)
A combination of tank tightness testing and inventory control
in accordance with subsection (d)(1) of this section may be used as an acceptable
release detection method for tanks only until December 22, 1998, and the required
frequency of the tank tightness test shall be based on the following criteria.
(i)
A tank tightness test shall be conducted at least once
each year for any tank in an existing UST system which is not being operated
in violation of the upgrading or replacement schedule in §334.44(b) of
this title [
(I)
replaced with
an
[
(II)
retrofitted or equipped in accordance with the minimum
upgrading requirements applicable to existing UST systems in §334.47
of this title [
(ii)
A tank tightness test shall be conducted at least once
every five years for any tank in
an
[
(I)
installed in accordance with the applicable technical standards
for new UST systems in §334.45 of this title [
(II)
retrofitted or equipped in accordance with the minimum
upgrading requirements applicable to existing UST systems in §334.47
of this title [
(C)
The manual tank gauging method of release detection, as
prescribed in subsection (d)(2) of this section, may be used as the sole release
detection system only for a petroleum substance tank with a nominal capacity
of
1,000
[
(D)
(No change.)
(2)
Release detection for piping. Piping in an
UST
[
(A)
Requirements for pressurized piping.
UST
[
(i)
Each separate pressurized line shall be equipped with an
automatic line leak detector meeting the following requirements.
(I)
The line leak detector shall be capable of detecting any
release from the piping system
of
[
(II)
The line leak detector shall be capable of alerting the
UST system operator of any release within one hour of occurrence either by
shutting off the flow of regulated substances,
or
by substantially
restricting the flow of regulated substances[
(III)
(No change.)
(ii)
In addition to the required line leak detector prescribed
in clause (i) of this subparagraph, each pressurized line shall also be tested
or monitored for releases in accordance with at least one of the following
methods.
(I)
The piping may be tested at least once per year by means
of a piping tightness test conducted in accordance with a code or standard
of practice developed by a national recognized association or independent
testing laboratory. Any such piping tightness test shall be capable of detecting
any release from the piping system [
(II)
The piping may be monitored for releases at least once
every month (not to exceed 35 days between each monitoring) by using one or
more of the release detection methods prescribed in subsection (d)(5)-
(10)
[
(III)
The piping may be monitored for releases
at least once every month (not to exceed 35 days between each monitoring)
by means of an electronic leak monitoring system capable of detecting any
release from the piping system of 0.2 gallons per hour at normal operating
pressure.
(B)
Requirements for suction piping and gravity flow piping.
(i)
Except as provided in clause (ii) of this subparagraph,
each separate line in
an
[
(I)
Each separate line may be tested at least once every three
years by means of a
positive or negative pressure
[
(II)
Each line may be monitored for releases at least once
every month (not to exceed 35 days between each monitoring) by using one or
more of the release detection methods prescribed in subsection (d)(5)-
(10)
[
(ii)
No release detection methods are required to be installed
or applied for any piping system that conveys regulated substances under suction
when such suction piping system is designed and constructed in accordance
with the following standards
:
[
(I)
The below-grade piping operates at less than atmospheric
pressure
;
[
(II)
The below-grade piping is sloped so that
all
the contents of the pipe will drain back into the storage tank if the suction
is released
;
[
(III)
Only one check valve is included in each suction line
;
[
(IV)
The check valve is located
aboveground,
directly
below and as close as practical to the suction pump
; and
[
(V)
[
(-a-)
signed as-built drawings or plans provided
by the installer or by a professional engineer who is duly licensed to practice
in Texas, or
(-b-)
signed written documentation provided
by an UST contractor who is properly registered with the agency, or by an
UST installer who is properly licensed with the agency, or by a professional
engineer who is duly licensed to practice in Texas.
(C)
(No change.)
(c)
Additional release detection requirements for hazardous
substance UST systems. In addition to the release detection requirements for
all UST systems prescribed in subsections (a) and (b) of this section, owners
and operators of all hazardous substance UST systems shall also assure compliance
with the following additional requirements.
(1)-(2)
(No change.)
(3)
Secondary containment and monitoring.
(A)
All hazardous substance UST systems (including tanks and
piping) shall be equipped with a secondary containment system which shall
be designed, constructed, installed, and maintained in accordance with §334.45(d)
of this title [
(B)
All hazardous substance UST systems (including tanks and
piping) shall include one or more of the release detection methods or equipment
prescribed in subsection (d)(7)-
(10)
[
(d)
Allowable methods of release detection. Tanks in
an
[
(1)
Tank tightness testing and inventory control. A combination
of tank tightness testing and inventory control may be used as a tank release
detection method only until December 22, 1998, subject to the following conditions
and requirements.
(A)
Tank tightness test. Any tank tightness test shall be conducted
in conformance with the following standards.
(i)-(ii)
(No change.)
(iii)
The tank tightness test shall be capable of detecting
a release [
(iv)
(No change.)
(B)
Inventory control. All inventory control procedures shall
be in conformance with the following requirements.
(i)
(No change.)
(ii)
Reconciliation of detailed inventory control records shall
be conducted at least once each month, and shall be sufficiently accurate
to detect a release
as small as
[
(iii)
(No change.)
[(iv)
For tanks with a nominal capacity of
2,000 gallons or less, the owner or operator may use the manual tank gauging
method (in accordance with paragraph (2) of this subsection) as a substitute
for the inventory control procedures prescribed in this subsection.]
(2)
Manual tank gauging. Manual tank gauging
may be used as a tank release detection method, subject to the following limitations
and requirements.
(A)
Manual tank gauging in accordance with this subparagraph
may be used as the sole method of tank release detection only for petroleum
substance tanks having a nominal capacity of
1,000
[
[
When used in conjunction with
tank tightness testing performed in accordance with paragraph (1)(A) of this
subsection, manual tank gauging may be used in lieu of the normal inventory
control procedures in paragraph (1)(B) of this subsection as a tank release
detection method for any tanks having a nominal capacity of 2000 gallons or
less.]
(B)
[
(C)
[
(i)
For purposes of this subparagraph only, the following definitions
are applicable.
(I)
Level measurement - The average of two consecutive liquid
level readings from a tank gauge, measuring stick, or other measuring equipment.
(II)
Gauging period - A weekly period [
(III)
Weekly deviation - The variation between the level measurements
taken at the beginning and the end of one gauging period, converted to and
expressed as gallons.
(IV)
Monthly deviation - The arithmetic average of four consecutive
weekly deviations, expressed as gallons.
(ii)
Any measuring equipment shall be capable of measuring
the level of stored substance over the full range of the tank's height to
the nearest one-eighth of an inch.
(iii)
Separate liquid level measurements in the tank shall
be taken weekly at the beginning and the ending of the gauging period, and
the weekly deviation shall be determined from such level measurements.
(iv)
Once each month, after four consecutive weekly deviations
are determined, a monthly deviation shall be calculated.
(v)
For the purposes of the manual tank gauging method of release
detection, a release shall be indicated when either the weekly deviation or
the monthly deviation exceeds the maximum allowable standards indicated in
the following subclauses:
(I)
for a tank with a capacity of 550 gallons or less
(any tank diameter)
:
minimum duration of gauging period = 36 hours;
weekly standard = 10 gallons; monthly standard = five gallons;
(II)
for a tank with a capacity of 551 gallons to 1,000 gallons
(when tank diameter is 64 inches)
:
minimum duration of gauging
period = 44 hours;
weekly standard =
nine
[
(III)
for a tank with a capacity of
551 gallons to 1,000
gallons (when tank diameter is 48 inches): minimum duration of gauging period
= 58 hours; weekly standard = 12 gallons; monthly standard = six gallons
[
(vi)
When either the weekly standard or the monthly standard
is exceeded and a suspected release is thereby indicated, the owner or operator
shall comply with the applicable release reporting, investigation, and corrective
action requirements of Subchapter D of this chapter [
(3)
Monthly tank gauging. Monthly tank gauging
may be used as a tank release detection method, subject to the following limitations
and requirements.
(A)-(B)
(No change.)
(C)
When used for compliance with the release detection requirements
of this section, the procedures and requirements in the following clauses
shall be applicable.
(i)-(iv)
(No change.)
(v)
When the monthly standard is exceeded and a suspected release
is thereby indicated, the owner or operator shall comply with the applicable
release reporting, investigation, and corrective action requirements of Subchapter
D of this chapter [
(4)
Automatic tank gauging and inventory control.
(A)
A combination of automatic tank gauging and inventory control
may be used as a tank release detection method, subject to the following requirements.
(i)
(No change.)
(ii)
The automatic tank gauging equipment shall be capable
of:
(I)
(No change.)
(II)
performing an automatic test for substance loss that can
detect a release [
(B)
For emergency generator tanks only, automatic tank gauging
may be used as a tank release detection method, provided that the automatic
tank gauging equipment shall be capable of:
(i)-(ii)
(No change.)
(iii)
performing an automatic test for substance loss that
can detect a release [
(5)
Vapor monitoring. Equipment and procedures
designed to test or monitor for the presence of vapors from the regulated
substance (or from a related tracer substance) in the soil gas of the backfilled
excavation zone may be used, subject to the following limitations and requirements.
(A)
(No change.)
(B)
The stored regulated substance, or any tracer substance
placed in the tank system, shall be sufficiently volatile so that, in the
event of a substance release from the UST system, vapors will develop to a
level that can be readily detected by the monitoring devices located in the
excavation zone.
(C)-(F)
(No change.)
(G)
All monitoring wells and observation wells shall be designed
and installed in accordance with the requirements of §334.46(g) of this
title [
(6)
Groundwater monitoring. Equipment or procedures
designed to test or monitor for the presence of regulated substances floating
on or dissolved in the groundwater in the excavation zone may be used, subject
to the following limitations and requirements.
(A)-(C)
(No change.)
(D)
Any preexisting background contamination
in the monitored zone shall not interfere with the capability of the groundwater
monitoring equipment or methodology to detect releases from the UST system,
and the groundwater monitoring equipment or methodology shall be capable of
detecting any significant increase above preexisting background levels in
the amount of regulated substance floating on or dissolved in the groundwater.
(E)
[
(i)
ensure compliance with the requirements of subparagraphs
(A) and (B) of this paragraph; and
(ii)
determine the appropriate number and positioning of any
monitoring wells and/or observation wells, so that releases from any part
of the UST system can be detected within one month (not to exceed 35 days)
of the release.
(F)
[
(7)
Interstitial monitoring for double-wall UST systems.
Equipment designed to test or monitor for the presence of regulated substance
vapors or liquids in the interstitial space between the inner (primary) and
outer (secondary) walls of a double-wall
UST
[
(A)
Any double-wall UST system using this method of release
detection shall be designed, constructed, and installed in accordance with
the applicable technical and installation requirements in §334.45(d)
of this title [
(B)-(C)
(No change.)
(8)
Monitoring of UST systems with secondary containment
barriers. Equipment designed to test or monitor for the presence of regulated
substances (liquids or vapors) in the excavation zone between the UST system
and an impermeable secondary containment barrier immediately around the UST
system may be used, subject to the following conditions and requirements.
(A)
Any secondary containment barrier or liner system at
an
[
(B)-(D)
(No change.)
(E)
All observation wells shall be designed and installed in
accordance with the requirements in §334.46(g) of this title [
(9)
SIR and inventory control.
(A)
A combination of SIR and inventory control may be used
as a release detection method for UST system tanks and lines, subject to the
following requirements.
(i)
Inventory control procedures must be in compliance with
paragraph (1)(B) of this subsection.
(ii)
The SIR methodology as utilized by its provider or vendor,
or by its vendor-authorized franchisee or licensee or representative must
analyze inventory control records in a manner which can detect a release of
0.2 gallons per hour from any part of the UST system.
(iii)
The UST system owner and/or operator must take appropriate
steps to assure that they receive a monthly analysis report from the entity
which actually performs the SIR analysis (either the SIR provider/vendor or
the provider/vendor-authorized franchisee or licensee or representative) in
no more than 35 calendar days from (and inclusive of) the first day of the
month for which the analysis is performed. This analysis report must, at minimum:
(I)
state the name of the SIR provider/vendor and the name
and version of the SIR methodology which was utilized for the analysis as
they are listed in the independent third party evaluation of that methodology;
(II)
state the name of the company and the individual (or the
name of the individual if no company affiliation) who performed the analysis,
if it was performed by an provider/vendor-authorized franchisee or licensee
or representative;
(III)
state the name and address of the facility at which analysis
is performed and provide a description of each UST system for which analysis
has been performed;
(IV)
quantitatively state in gallons per hour for each UST
system being monitored: the leak threshold for the month analyzed, and the
minimum detectable leak rate for the month analyzed, and the indicated leak
rate for the month analyzed;
(V)
qualitatively state one of the following for each UST system
being monitored: "pass (no reportable release detected)", or "fail (reportable
release detected)", or "fail (reportable release suspected)", or "fail (results
inconclusive)", or "fail (data insufficient to perform reliable analysis)."
(iv)
Any UST system analysis report result other than "pass
(no release indicated)" must be reported to the agency by the UST system owner
or operator as a suspected release in accordance with §334.72 of this
title (relating to Reporting of Suspected Releases).
(v)
Any UST system analysis report result of "fail (results
inconclusive)" or "fail (data insufficient to perform reliable analysis)"
may be considered by the agency as failure on the part of the owner and/or
operator to perform release detection for that period.
(vi)
At least once per calendar quarter, the SIR provider/vendor
must select at random, at least one of the individual UST system analyses
performed by each of its authorized franchisees or licensees or representatives
during that period and audit that analysis to assure that provider/vendor
standards are being maintained with regard to the acceptability of inventory
control record data, the acceptability of analysis procedures, and the accuracy
of analysis results. The written result of that audit must be provided to
the authorized franchisee or licensee or representative and to the owner and/or
operator of the audited UST system(s) by the SIR provider/vendor during that
calendar quarter. In addition, within 30 days following each calendar quarter,
the SIR provider/vendor must provide to the agency a list containing the name
and address of each of its authorized franchisees or licensees or representatives
which specifies for each one, the name and address of each facility at which
one or more UST system audits were performed during the previous calendar
quarter.
(10)
[
(e)
Release detection records.
(1)
(No change.)
(2)
Owners and operators shall maintain records adequate
to demonstrate compliance with the release detection requirements in this
section, and in accordance with the following minimum requirements.
(A)
All appropriate installation records related to the release
detection system, as listed in §334.46(i) of this title [
(B)
All written performance claims pertaining to any release
detection system used, and documentation of the manner in which such claims
have been justified
, verified,
or tested by the equipment manufacturer
, methodology provider/vendor or independent third party evaluator
[
(C)-(E)
(No change.)
§334.51.Spill and Overfill Prevention and Control.
(a)
General spill and overfill control requirements.
(1)
Owners and operators of all new and existing underground
storage tank
(UST)
systems shall ensure that releases of regulated
substances due to spills and overfills do not occur.
(2)-(3)
(No change.)
(4)
When
USTs
[
(A)-(B)
(No change.)
(5)
The owners or operators shall assure that the
installation and maintenance of all required spill and overfill prevention
equipment, as well as the procedures used for the transfers of regulated substances
to or from an
UST
[
(6)-(7)
(No change.)
(b)
Spill and overfill prevention equipment. Except as provided
in paragraph (4) of this subsection, all
UST
[
(1)-(3)
(No change.)
(4)
Exceptions.
(A)
UST systems are not required to be equipped with the spill
and overfill prevention equipment prescribed in this subsection if one or
more of the following conditions are applicable to such system:
(i)
the transfers of regulated substances into the
UST
[
(ii)
the
UST
[
(iii)
the installation of the spill and overfill prevention
equipment prescribed in this subchapter has been reviewed and determined by
the
agency
[
(B)
(No change.)
(c)
(No change.)
§334.52.Underground Storage Tank System Repairs and Relining.
(a)
General requirements.
(1)
Owners and operators shall ensure that any repair or relining
of an underground storage tank
(UST)
system will prevent releases
due to structural failure or corrosion for the remaining operational life
of the system.
(2)-(3)
(No change.)
(4)
After completion of any repairs or relining of an
UST
[
(5)-(6)
(No change.)
(7)
The performance of any repairs or relining of an existing
UST
[
(b)
Tank repairs and relining.
(1)-(4)
(No change.)
(5)
Prior to placing the tank back into operation, any
repaired or relined tank shall be either:
(A)
(No change.)
(B)
internally inspected and assessed in accordance with the
requirements in §334.47(b)(1)(A)(iv) of this title [
(C)
tested or assessed by any other method that has been reviewed
and determined by the
agency
[
(6)
(No change.)
(c)
Piping repairs and maintenance.
(1)
(No change.)
(2)
The installation or reinstallation of previously used
piping, valves, or fittings in any
UST
[
(3)
Prior to placing the piping system back into operation,
any repaired piping system shall be tested by means of a piping tightness
test meeting the requirements of §334.50(b)(2)(A)(ii)(I) of this title
[
(4)
If a repaired metal piping system has not already
been equipped with an acceptable cathodic protection system, then the following
minimum requirements shall be met prior to placing the piping system back
in operation.
(A)
(No change.)
(B)
The repaired piping sections and fittings shall be retrofitted
with a field-installed cathodic protection system. Such cathodic protection
system shall be designed by a qualified corrosion specialist and shall be
operated and maintained in accordance with the applicable cathodic protection
requirements in §334.49(c) of this title [
(d)
Records for repairs and relining.
(1)
(No change.)
(2)
Owners and operators shall maintain records adequate
to demonstrate compliance with the applicable repairs and relining requirements
in this section, and in accordance with the following minimum requirements.
(A)
General information related to the repairs or relining
shall be maintained for the remaining operational life of the UST system,
including:
(i)-(ii)
(No change.)
(iii)
copies of all related construction notification, registration,
and certification documents filed with the
agency
[
(B)-(C)
(No change.)
§334.54.Temporary Removal from Service.
(a)
Applicability.
An underground storage tank (UST)
[
(1)-(3)
(No change.)
(b)
All UST systems. [
(1)
(No change.)
(2)
All other piping, pumps, manways,
tank access
points (e.g., fill risers, automatic tank gauging risers, Stage I vapor recovery
risers)
and ancillary equipment shall be capped, plugged, locked, and/or
otherwise secured to prevent access, tampering, or vandalism by unauthorized
persons.
(c)
Protected and monitored systems. Any UST system may remain
out of service indefinitely so long as the following requirements are met
during the period that the UST system remains temporarily out of service.
(1)
(No change.)
(2)
Unless the UST system has been emptied of all regulated
substances (as described under subsection (d) [
(3)
Returning UST system to service.
[
(A)
When a protected and empty UST system
that has been temporarily out of service for longer than six months is placed
back into service, the owner or operator shall ensure the integrity of the
system by the performance of tank tightness and piping tightness tests that
meet the requirements of §334.50(d)(1)(A), and as applicable, (b)(2)(A)(ii)(I),
or (B)(i)(I), of this title, prior to bringing the system back into operation;
and
(B)
When either a protected and monitored
or a protected and empty UST system is placed back into service, the owner
or operator shall also ensure that the UST system either is in compliance
or is brought into compliance with all applicable release detection, and spill
and overfill prevention requirements of §334.50 of this title and §334.51
of this title (relating to Spill and Overfill Prevention and Control).
[(d)
Unprotected and unmonitored systems.]
[(1)
Time limitation. If due to the phase-in of upgrades and
improvements as allowed under §334.47 of this title (relating to Technical
Standards for Existing UST Systems), any existing UST system is not yet adequately
protected from corrosion (as provided under subsection (c)(1) of this section)
and any existing nonempty UST system is not yet adequately monitored for releases
(as provided under subsection (c)(2) of this section), such UST systems cannot
remain out of service indefinitely and must meet the following requirements.]
[(A)
The UST system shall be operated and maintained in accordance
with the provisions of subsection (b) of this section during the time the
system is temporarily out of service, which shall not exceed 12 months.]
[(B)
Beginning no later than the date on which the UST system
has been out of service for a continuous period of 10 months, regardless of
whether or not regulated substances remain in the system, the owner or operator
shall initiate appropriate activities or procedures to assure that no later
than the date on which the system has been out of service for a continuous
period of 12 months, the UST system is either:]
[(i)
permanently removed from service (by disposal in place
or removal from the ground), in accordance with the applicable provisions
of §334.55 of this title (relating to Permanent Removal from Service);]
[(ii)
brought back into service in conformance with the requirements
in paragraph (3) of this subsection; or]
[(iii)
appropriately upgraded such that the UST system is adequately
protected from corrosion and adequately monitored for releases of regulated
substances in a manner that will allow the system to remain temporarily out
of service under the provisions of subsection (c) of this section.]
[(2)
Extension of time. For UST systems which
are temporarily out of service, and for which the owner or operator determines
that conformance with the schedule under paragraph (1)(B) of this subsection
would be impractical or unreasonable, the owner or operator must secure prior
approval from the executive director for an extension of time subject to the
following conditions.]
[(A)
Any request for extension of time shall be in conformance
with §334.43 of this title (relating to Variances and Alternative Procedures).]
[(B)
Any request for extension of time shall be accompanied
by written documentation adequate to justify the requested extension and the
results of a site assessment conducted in accordance with of §334.55(e)
of this title (relating to Permanent Removal from Service).]
[(3)
Returning UST system to service. When an unprotected
and unmonitored UST system that has been temporarily out of service for longer
than six months is placed back into service, the owner or operator shall:]
[(A)
ensure the integrity of the system by the performance
of a tank tightness test and piping tightness test that meet the requirements
of §334.50(d)(1)(A) and §334.50(b)(2)(A)(ii)(I), respectively, of
this title (relating to Release Detection) prior to bringing the system back
into operation; and]
[(B)
ensure that the UST system is brought into compliance
with all applicable corrosion protection, release detection, and spill and
overfill prevention requirements of §334.49 of this title (relating to
Corrosion Protection), and §334.50 of this title (relating to Release
Detection), and §334.51 of this title (relating to Spill and Overfill
Prevention and Control) in accordance with the applicable schedules in §334.44
of this title (relating to Implementation Schedules).]
(d)
[
(1)-(3)
(No change.)
(e)
[
(1)
Releases. If a release of a regulated substance is suspected
or confirmed, the owner or operator of an
UST
[
(2)
Registration. At the time an
UST
[
(3)
Fees. An
UST
[
(4)
Recordkeeping for temporary removal from service.
(A)
Owners and operators shall maintain records adequate to
demonstrate compliance with the requirements in this section, in accordance
with §334.10(b) of this title (relating to Reporting and Recordkeeping).
(B)
At a minimum, the following records shall be maintained
for at least five years after the UST system is temporarily removed from service:
(i)
date that the UST system was temporarily removed from service;
(ii)
name, address, and telephone number of the person who
prepared the UST system for the period of non-use;
(iii)
documentation of the procedures used to prepare and empty
the UST system;
(iv)
copies of all documentation relative to any requests and
approvals of extensions of time;
(v)
name, address, and telephone number of the person who conducted
the tank and piping tightness tests, prior to returning the UST system to
service;
(vi)
results of any tank and piping tightness tests; and
(vii)
date that the UST system was returned to service.
§334.55.Permanent Removal from Service.
(a)
General provisions.
(1)
Any owner or operator who intends to permanently remove
an underground storage tank
(UST)
from service (by either removing
the tank from the ground, abandoning the tank in-place, or conducting a permanent
change-in-service) shall provide prior notice of this activity to the
agency
[
(2)
The procedures used in permanently removing the
UST
[
(3)
(No change.)
(4)
All
USTs
[
(5)
The handling, transportation, and disposal of any
regulated substances removed from an
UST
[
(6)
As part of the required procedure for the permanent
removal of any
UST
[
(A)
This determination shall be performed subsequent to the
submittal of notification to the
agency
[
(B)
This determination shall be made by visual inspection of
the area in and immediately surrounding the excavation zone for any above-ground
releases and for any exposed below-ground releases, and by using one or both
of the following methods or procedures:
(i)
the continual operation (through the time that the stored
regulated substances are removed from the UST system) of one or more of the
external release monitoring and detection methods
operated
[
(ii)
the performance of a comprehensive site assessment in
accordance with the requirements of subsection (e) of this section.
(C)
Any methods or procedures used to make this determination
shall be capable of detecting any prior release of stored regulated substances
from any portion of the
UST
[
(D)
Upon completion of this determination, the owner or operator
shall:
(i)
report any confirmed or suspected releases to the
agency
[
(ii)
prepare or assemble the detailed written records of this
determination, which shall include the methods, procedures, results, and names,
addresses, and telephone numbers of the persons involved in conducting such
determination. Such records shall be maintained in accordance with the applicable
provisions in subsection (f) of this section, and a copy of such records shall
be filed with the
agency
[
(7)
For an
UST
[
(8)
The requirements in this section are applicable to
all
UST
[
(9)
For an
UST
[
(A)-(B)
(No change.)
(C)
release reporting, investigation, and corrective action
if a release of a regulated substance has occurred, in accordance with Subchapter
D of this chapter [
(D)
(No change.)
(b)
Removal from the ground. In addition to the requirements
of subsection (a) of this section, the following requirements shall be applicable
for the removal of
USTs
[
(1)
(No change.)
(2)
When an owner or operator can demonstrate good cause
for removal of a tank from the ground prior to emptying, cleaning, or purging
the vapors, the owner or operator shall obtain approval from the manager of
the appropriate district office (or the manager's designated representative)
prior to proceeding with the removal. In this situation, the tank removal
shall be accomplished only under the direct supervision of
agency
[
(3)
(No change.)
(4)
Storage of removed tanks.
(A)-(E)
(No change.)
(F)
Regardless of where the tank is stored, not later than
ten
[
(5)
Transportation and disposal of removed tanks.
(A)
The methods and procedures used for the handling, transporting,
and disposing of any removed
USTs
[
(B)-(D)
(No change.)
(6)
(No change.)
(c)
Abandonment in-place. An
UST
[
(1)
When the
UST
[
(A)-(B)
(No change.)
(2)
Any tank that is abandoned in-place shall be
filled with a solid inert material as prescribed in this paragraph.
(A)
Only solid inert materials which are free of any harmful
contaminants or pollutants shall be used to fill the tank. Acceptable materials
include sand, fine gravel, sand and gravel mixtures, and cement/concrete-based
slurries. Other materials such as native soils, drilling muds, and commercially
marketed fill materials shall not be used for filling the tank unless the
material and filling procedures have been reviewed and approved by the
agency
[
(B)-(C)
(No change.)
(3)
The tank owner shall develop and maintain a permanent
record of the name and address of the tank owner (and site or facility owner,
if different), the abandoned tank location, the date of abandonment, the substance
previously stored, the method of conditioning the tank for abandonment, release
assessment results, the names, addresses, and telephone numbers of the persons
conducting the activities, and information regarding the extent of any confirmed
releases and any resulting remediation activities.
(A)-(B)
(No change.)
(C)
Prior to the sale or conveyance of the facility where an
abandoned
UST
[
(d)
Change-in-service. In addition to the requirements of subsection
(a) of this section, the following requirements shall be applicable for any
change-in-service where
an
[
(1)
Prior to refilling with materials other than regulated
substances, the
UST
[
(2)
A change-in-service where an
UST
[
(3)
(No change.)
(4)
The owner shall develop and maintain a permanent record
of the location of the
UST
[
(5)
For the purposes of this section, an
UST
[
(e)
Site assessment.
(1)
A [
(A)
when the site assessment is selected as the method to achieve
compliance with the release determination requirements of subsection (a)(6)
of this section for an
UST
[
[(B)
when an owner or operator requests an
extension of time to allow an underground storage tank system to remain temporarily
out of service beyond the prescribed time limits, as provided in §334.54(d)(2)(B)
of this title (relating to Temporary Removal from Service);]
(B)
[
(C)
[
(2)
The site assessment shall be conducted by qualified
personnel possessing the appropriate skills, experience, and competence to
perform the assessment in accordance with recognized industry practices and
the provisions of this section
and shall be supervised by a person who
is currently licensed by the Texas Natural Resource Conservation Commission
(TNRCC) as an UST installer or on- site supervisor or currently registered
with the TNRCC as a corrective action project manager
.
(3)
(No change.)
(4)
The owner or operator shall assure that in selecting
the sampling or measurement methods, the sample types, and the sampling or
measurement locations, the persons conducting the assessment shall take into
consideration the following factors to ensure that the presence of any released
regulated substances is detected and quantified:
(A)
the specific method of removing the
UST
[
(B)-(E)
(No change.)
(5)
One or more of the following methods may be used
for conducting the site assessment and release determination required under
this section, provided that such methods are in compliance with the performance
standards in paragraphs (2)-(4) of this subsection:
(A)-(B)
(No change.)
(C)
any other site assessment or release determination method
or procedure which has been reviewed and determined by the
agency
[
(D)
The owner or operator must report any
suspected or confirmed releases indicated by the site assessment to the agency
and comply with all applicable release investigation and corrective action
requirements, as prescribed in Subchapter D of this chapter.
(f)
Records for permanent removal from service.
(1)
(No change.)
(2)
At a minimum, the following records shall be maintained
for as long as any
UST
[
(A)-(B)
(No change.)
(C)
records related to the abandonment in-place of
an
[
(D)
records related to the change-in-service of
an
[
§334.56.Change to Exempt or Excluded Status.
(a)
Any owner or operator who intends to change the status
of an underground storage tank (UST) system from regulated to exempt or excluded
status must determine whether the tank(s) size (if applicable) and the current
and anticipated use of the UST system will allow reclassification to either
exempt status as specified in §334.3 of this chapter (relating to Exemptions
for Underground Storage Tanks (USTs) and UST Systems), or to excluded status
as specified in §334.4 of this title (relating to Exclusions for Underground
Storage Tanks (USTs) and UST Systems).
(b)
As part of the required procedure for the change in status
of any UST system from regulated to exempt or excluded status, the owner or
operator shall determine whether or not any prior release of a stored regulated
substance has occurred from the system.
(1)
This determination shall be made by visual inspection of
the area in and immediately surrounding the excavation zone for any above-ground
releases and for any exposed below-ground releases, and by using one or both
of the following methods or procedures:
(A)
the continual operation (through the time that the stored
regulated substances are removed from the UST system) of one or more of the
external release monitoring and detection methods operated in accordance with §334.50(d)(5)-(10)
of this title (relating to Release Detection); or
(B)
the performance of a comprehensive site assessment in accordance
with the requirements of subsection (c) of this section.
(2)
Any methods or procedures used to make this determination
shall be capable of detecting any prior release of stored regulated substances
from any portion of the UST system.
(A)
Upon completion of this determination, the owner or operator
shall:
(i)
report any confirmed or suspected releases to the agency
and comply with all applicable release investigation and corrective action
requirements, as prescribed in Subchapter D of this chapter (relating to Release
Reporting and Corrective Action);
(ii)
prepare or assemble the detailed written records of this
determination, which shall include the methods, procedures, results, names,
addresses, and telephone numbers of the persons involved in conducting this
determination. These records shall be maintained in accordance with the applicable
provisions in subsection (d) of this section, and a copy of these records
shall be filed with the agency in conjunction with the applicable tank registration
requirements of §334.7 of this title (relating to Registration for Underground
Storage Tanks (USTs) and UST Systems).
(c)
Site assessment.
(1)
A comprehensive site assessment meeting the requirements
of this subsection shall be performed by the owner or operator of an UST system
in the following situations to determine whether or not a release has occurred:
(A)
when the site assessment is selected as the method to achieve
compliance with the release determination requirements of subsection (b) of
this section for an UST which is changed from regulated to exempt or excluded
status on or after the effective date of this subchapter;
(B)
when the agency determines that a comprehensive site assessment
is necessary at any site or facility where a release or suspected release
may pose a current or potential threat to human health or safety or the environment.
(2)
The site assessment shall be conducted by qualified
personnel possessing the appropriate skills, experience, and competence to
perform the assessment in accordance with recognized industry practices and
the provisions of this section and shall be supervised by a person who is
currently licensed by the Texas Natural Resource Conservation Commission (TNRCC)
as an UST installer or on- site supervisor or currently registered with the
TNRCC as a corrective action project manager.
(3)
Any procedures used for the site assessment must be
capable of measuring for the presence of a release from any part of the UST
system and, at a minimum, must include measurements for releases at locations
where contamination is most likely to be present at the site.
(4)
The owner or operator shall assure that in selecting
the sampling or measurement methods, the sample types, and the sampling or
measurement locations, the persons conducting the assessment shall take into
consideration the following factors to ensure that the presence of any released
regulated substances is detected and quantified:
(A)
the nature and composition of the stored regulated substance;
(B)
the type and characteristics of the backfill material and
surrounding soils;
(C)
the presence of groundwater, and its depth with relation
to the UST system and the surface of the ground; and
(D)
any other factors that may affect the reliability or effectiveness
of the site assessment procedures or techniques.
(5)
One or more of the following methods may be used
for conducting the site assessment and release determination required under
this section, provided that such methods are in compliance with the performance
standards in paragraphs (2)-(4) of this subsection:
(A)
collection and analysis of soil samples secured from unsaturated
sections of the UST system excavation zone and surrounding soils, where such
samples shall be analyzed for major constituents and/or indicator parameters
of the stored regulated substance(s);
(B)
collection and analysis of groundwater samples secured
from the UST system excavation zone and surrounding area, where such samples
shall be analyzed for all major constituents or indicator parameters of the
stored regulated substance(s); and/or
(C)
any other site assessment or release determination method
or procedure which has been reviewed and determined by the agency to detect
prior releases of the stored regulated substance(s) in a manner that is no
less protective of human health and the environment than the methods described
in subparagraphs (A) and (B) of this paragraph, as provided under §334.43
of this title (relating to Variances and Alternative Procedures).
(D)
The owner or operator must report any suspected or confirmed
releases indicated by the site assessment to the agency and comply with all
applicable release investigation and corrective action requirements, as prescribed
in Subchapter D of this chapter.
(d)
Records for change to exempt or excluded status.
(1)
Owners and operators shall maintain records adequate to
demonstrate compliance with the requirements of this section, in accordance
with §334.10(b) of this title (relating to Reporting and Recordkeeping).
(2)
At minimum, records of the release determination or
site assessment, in accordance with the requirements in subsection (b)(2)(A)(ii)
of this section shall be maintained for as long as any UST remains in service
at the facility, or for five years after the UST system is changed from regulated
to exempt or excluded status, whichever is longer.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003488
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.71 - 334.85
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code, (TWC) §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks (USTs), and §26.351, which provides the commission authority
to adopt rules establishing the requirements for taking corrective action
in response to a release from an UST or aboveground storage tank.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.71.Applicability.
For releases discovered and reported to the executive director on or
before August 31, 2003, the provisions of this subchapter are applicable to
owners and operators of all underground storage tanks
(USTs)
and
all petroleum product aboveground storage tanks
(ASTs)
unless otherwise
specified in Subchapters A or F of this chapter (relating to General Provisions
and Aboveground Storage Tanks, respectively). For releases reported to the
executive director on or after September 1, 2003, the provisions of this subchapter
are applicable to owners and operators of all
USTs
[
§334.72.Reporting of Suspected Releases.
Owners and operators of
aboveground storage tank (AST) and
underground storage tank (UST) systems must report to the
(Austin central
office or the
appropriate
regional
[
(1)
The discovery by owners and operators, or written notification
by others to the owner or operator, of released regulated substances at the
AST or
UST site or in the surrounding area (such as the presence of
non-aqueous phase liquids (NAPL)
[
(2)
Unusual operating conditions observed by owners
or
[
(3)
Monitoring results from a release detection method
required under §334.50 of this title (relating to Release Detection)
or other method that indicates a release may have occurred unless:
(A)
the monitoring device is found to be defective and is immediately
repaired, recalibrated, or replaced,
or the monitoring procedure is found
to be ineffective, and is modified,
and additional monitoring does not
confirm the initial result; or
(B)
in the case of inventory control, a second month of data
does not confirm the initial result
; or
[
(4)
For UST systems which are required to be of double-wall
construction or secondarily contained and for UST systems in which interstitial
monitoring is being employed for compliance with the requirements of §334.50
of this title [
§334.73.Investigation Due to Off-Site Impacts.
When required by the
agency
[
§334.74.Release Investigation and Confirmation Steps.
Unless corrective action is initiated in accordance with §§334.76-334.81
of this title (relating to Initial Response to Releases; Initial Abatement
Measures and Site Check;
Site Assessment
[
(1)
System test. Owners or operators must conduct tests (according
to the requirements for tightness testing in §334.50 of this title (relating
to Release Detection)) that determine whether a leak exists in that portion
of the tank that routinely contains product, or the attached delivery piping,
or both.
(A)
Owners and operators must repair,
or
replace[
(B)-(C)
(No change.)
(2)
Site check. Owners and operators must measure
for the presence of a release where contamination is most likely to be present
at the
AST or
UST site. In selecting sample types, sample locations,
and measurement methods, owners and operators must consider the nature of
the stored substance, the type of initial alarm or cause for suspicion, the
type of backfill, the depth
to
[
(A)
If the test results
from an excavated area
[
(B)
If the test results
from an excavated area
[
(3)
In the event there is no evidence of a release
after performing the tests required in paragraphs (1) and (2) of this section,
the owner or operator must file a report which contains a detailed description
of the investigative procedures followed in addressing the requirements of
this section and which includes the results of all tests or monitoring performed.
This report must be filed with the
agency
[
§334.75.Reporting and Cleanup of Surface Spills and Overfills.
(a)
Owners and operators of
aboveground storage tanks
(AST) and underground storage tank (UST)
[
(1)
any
spill or overfill of petroleum
substance
from an UST or any spill or overfill of petroleum product from an AST
that results in a release to the environment that exceeds 25 gallons, or that
causes a sheen on nearby surface water; and
(2)
any
spill or overfill of a hazardous substance
that results in a release
from an UST
to the environment that equals
or exceeds its reportable quantity under
the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA) (40 Code of Federal
Regulations (CFR) Part 302).
(b)
Owners and operators [
§334.76.Initial Response to Releases.
Upon confirmation of a release in accordance with §334.74 of this
title (relating to Release Investigation and Confirmation Steps) or after
a release from the
aboveground storage tank (AST) or underground storage
tank (UST)
[
(1)
report the release to the
agency
[
(2)
take immediate action to prevent any further release
of the regulated substance into the environment, including shutting down the
leaking
AST or
UST system as determined necessary; and
(3)
(No change.)
§334.77.Initial Abatement Measures and Site Check.
(a)
Unless directed to do otherwise by the
agency
[
(1)
remove as much of the regulated substance from the
aboveground storage tank (AST) or underground storage tank (UST)
[
(2)
(No change.)
(3)
continue to monitor and mitigate any additional fire
and safety hazards posed by vapors or free product that have migrated from
the
AST or
UST excavation zone and entered into subsurface structures
(such as sewers or basements);
(4)
(No change.)
(5)
measure for the presence of a release where contamination
is most likely to be present at the
AST or
UST site, unless the
presence and source of the release have been confirmed in accordance with
the site check required by §334.74 of this title (relating to Release
Investigation and Confirmation Steps) or the closure site assessment of §334.55(e)
of this title (relating to Permanent Removal from Service). In selecting sample
types, sample locations, and measurement methods, the owner and operator must
consider the nature of the stored substance, the type of backfill, depth to
groundwater, and other factors as appropriate for identifying the presence
and source of the release; and
(6)
investigate to determine the possible presence of
Non-Aqueous Phase Liquids (NAPLs)
[
(b)
Within 20 days after release confirmation, owners and operators
must submit a report to the
agency
[
§334.78.Site Assessment.
(a)
Unless directed to do otherwise by the
agency
[
(1)-(3)
(No change.)
(4)
results of the
Non-Aqueous Phase Liquids (NAPLs)
[
(5)
at a minimum, a determination of the degree and lateral
and vertical extent of the on-site contaminated area (soil and groundwater)
as required by the
agency
[
(6)
identification of all potential exposure pathways
as required by the
agency
[
(7)-(8)
(No change.)
(9)
any other related information requested by the
agency
[
(b)
Site classification. Owners and operators must conduct
site assessment actions to collect critical information in a manner approved
by, or directed by, the
agency
[
(1)
Owners and operators shall utilize the site classification
scheme established by the
agency
[
(2)
Classification will be based upon the results of completed
assessment actions and the best professional judgment of the registered corrective
action specialist and the
agency
[
(3)
(No change.)
(4)
The classification of any one site may be adjusted
upward or downward by the
agency
[
(5)
Additional exposure scenarios may be added to the
classification system by the
agency
[
(6)
The
agency
[
(c)
Within 45 days of release confirmation, owners and operators
must submit the information collected in compliance with subsection (a) of
this section to the
agency
[
(d)
Any documents submitted as a site assessment which do not
contain all of the information required by this section shall not be accepted
by the executive director, may be returned by the
agency
[
Removal of Non-Aqueous Phase Liquids
(NAPLs
) [
At sites where investigations under §334.77 of this title (relating
to Initial Abatement Measures and Site Check), or by other means, indicate
the presence of
Non-Aqueous Phase Liquids (NAPLs)
[
(1)
conduct
NAPL
[
(2)
abate the migration of NAPLs
[
(3)
(No change.)
(4)
unless directed to do otherwise, prepare and submit
to the
agency
[
(A)
the name of the person(s) responsible for implementing
the
NAPL
[
(B)
the estimated quantity, type, and thickness of
NAPL
[
(C)
detailed information pertaining to the type of
NAPL
[
(D)-(F)
(No change.)
(G)
the disposition of the recovered
NAPL
[
(H)
any other related information requested by the
agency
[
§334.80.Investigation for Soil and Groundwater Cleanup.
(a)
To
[
(1)
(No change.)
(2)
Non-Aqueous Phase Liquid
[
(3)
there is evidence that contaminated soils may be in
contact with groundwater (e.g., as found during conduct of the initial response
measures or investigations required under §§334.75-334.79 of this
title (relating to Reporting and Cleanup of Surface Spills and Overfills;
Initial Response to Releases; Initial Abatement Measures and Site Check;
Site Assessment
[
(4)
the
agency
[
(b)
Owners and operators must submit the information collected
under subsection (a) of this section as soon as practicable, or in accordance
with a schedule established by the
agency
[
§334.81.Corrective Action Plan.
(a)
At any point after reviewing the information submitted
in compliance with §§334.76- 334.78 of this title (relating to Initial
Response to Releases; Initial Abatement Measures and Site Check; and
Site Assessment
[
(b)
The
agency
[
(1)-(7)
(No change.)
(8)
operation, monitoring, and performance plan;
and
[
[
(9)
[
(c)
Owners and operators shall submit information pertaining
to the items in subsection (b) of this section upon request of the
agency
[
(d)
Any documents submitted as a corrective action plan which
do not contain all of the information required by this section shall not be
accepted or approved by the
agency
[
(e)
Upon approval of the corrective action plan or as directed
by the
agency
[
(f)
Owners and operators may, in the interest of minimizing
environmental contamination and promoting more effective cleanup, begin cleanup
of soil and groundwater before the corrective action is approved provided
that they:
(1)
notify the
agency
[
(2)
comply with any conditions imposed by the
agency
[
(3)
incorporate these self-initiated cleanup measures
in the corrective action plan that is submitted to the
agency
[
(4)
prior to discharge of any waste, obtain necessary
authorization from the
agency
[
(g)
To
[
(h)
Upon completion of corrective action taken in response
to the requirements of this section, the owner or operator
must
[
(i)
The
agency
[
§334.82.Public Participation.
(a)
For each confirmed release that requires [
(b)
(No change.)
(c)
The executive director shall give public notice
to
affected parties
[
§334.83.Emergency Orders.
Notwithstanding any other provision of this subchapter, the commission
or the executive director may issue emergency orders under Texas Water Code, §5.510
and Chapter 35 of this title (relating to Emergency and Temporary Orders and
Permits; Temporary Suspension or Amendment of Permit Conditions) to the owner
or operator of an
aboveground storage tank or
underground storage
tank.
§334.84.Corrective Action by the Agency [
(a)
The
agency
[
(1)
the owner or operator of the
aboveground storage tank
(AST) or
underground storage tank (
UST)
is unwilling to take
appropriate corrective action;
(2)
the owner or operator of the
AST or UST
[
(3)
the owner or operator of the
AST or UST
[
(4)
(No change.)
(b)
The
agency
[
§334.85.Management of Wastes.
The management and disposition of waste generated as a result of a
release of regulated substances associated with an
aboveground or
underground storage tank must be in accordance with all applicable federal
and state requirements and in a manner that will not result in adverse impacts
to human health and safety and the environment
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003489
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.91 - 334.110
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
These section repeals are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The section
repeals are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
and aboveground storage tanks, and §26.352, which requires the commission
to adopt by rule requirements for maintaining evidence of financial responsibility
for taking corrective action and compensating third parties for bodily injury
and property damage caused by sudden and nonsudden accidental releases arising
from operating an underground storage tank.
These section repeals implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.91.Applicability.
§334.92.Compliance Dates.
§334.93.Amount and Scope of Required Financial Responsibility.
§334.94.Allowable Mechanisms and Combinations of Mechanisms.
§334.95.Financial Test of Self-Insurance.
§334.96.Guarantee.
§334.97.Insurance and Risk Retention Group Coverage.
§334.98.Surety Bond.
§334.99.Letter of Credit.
§334.100.Trust Fund.
§334.101.Standby Trust Fund.
§334.102.Substitution of Financial Assurance Mechanisms by Owner or Operator.
§334.103.Cancellation or Nonrenewal by a Provider of Financial Assurance.
§334.104.Reporting by Owner or Operator.
§334.105.Financial Assurance Recordkeeping.
§334.106.Drawing on Financial Assurance Mechanisms.
§334.107.Release from the Requirements.
§334.108.Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance.
§334.109.Replenishment of Guarantees, Letters of Credit, or Surety Bonds.
§334.110.Corrective Action Deductibles.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003490
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.121 - 334.130, 334.132
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.121.Purpose and Applicability for Aboveground Storage Tanks (ASTs) [
(a)
Purpose. The purpose of this subchapter is to provide a
regulatory program for aboveground storage tanks
(ASTs)
storing
petroleum products, as prescribed by the Texas Water Code, Chapter 26, Subchapter
I, to maintain and protect the quality of groundwater and surface water resources
in the state from certain substances in
ASTs
[
(b)
Applicability.
(1)
An
AST
[
(A)
meets the definition of "aboveground storage tank" in §334.122
of this title (relating to Definitions for
Aboveground Storage Tanks
(ASTs)
[
(B)
contains, has contained, or will contain a "petroleum product"
as defined in
§334.2
[
(C)
is not exempted from regulation in §334.123 of this
title (relating to [
(D)
is not excluded from regulation in §334.124 of this
title (relating to [
(2)
The requirements and provisions in this subchapter
are applicable
[
(3)
The requirements and provisions in this subchapter
[
(4)
The following types of aboveground tanks
are
[
(A)-(B)
(No change.)
(5)
If a storage tank containing a petroleum product
technically meets the definitions of both an
AST
[
(6)
Consistent with the [
§334.122.Definitions for Aboveground Storage Tanks (ASTs) [
(a)
Except as provided in subsection (b) of this section, the
words and terms used in this subchapter [
(b)
The following words and terms, as used in this subchapter
only, shall have the following meanings, unless the context clearly indicates
otherwise.
(1)
Aboveground storage tank [
[
Appropriate district
office - The commission's district field office which has jurisdiction for
conducting authorized commission regulatory activities in the area where a
particular aboveground storage tank is located.]
(2)
[
(3)
[
(4)
[
[
Facility - The site,
tract, or other defined area where one or more aboveground storage tanks are
located, and which includes all adjoining contiguous land and associated improvements.]
[
Facility owner - Any
person who holds legal possession or ownership of a total or partial interest
in an aboveground storage tank facility. (The "facility owner" and the "owner"
associated with an aboveground storage tank may be the same person or may
be different persons, depending on the specific arrangements at the facility.)]
(5)
[
(6)
[
[
Operator - Any person
in control of, or having responsibility for, the daily operation of an aboveground
storage tank.]
[
Owner - Any person who
holds legal possession or ownership of a total or partial interest in an aboveground
storage tank. For the purposes of this subchapter, where the actual ownership
of an aboveground storage tank is either uncertain, unknown, or in dispute,
the fee simple owner of the surface estate where the tank is located shall
be considered the tank owner, unless the owner of the surface estate can demonstrate
by appropriate documentation (deed reservation, invoice, bill of sale, etc.)
or by other legally acceptable means that the aboveground storage tank is
owned by others. "Owner" does not include a person who holds an interest in
an aboveground storage tank solely for financial security purposes unless,
through foreclosure or other related actions, the holder of such security
interest has taken legal possession of the tank.]
[
Petroleum product -
A petroleum substance obtained from distilling and processing crude oil that
is liquid at standard conditions of temperature and pressure, and that is
capable of being used as a fuel for the propulsion of a motor vehicle or aircraft,
including, but not necessarily limited to, motor gasoline, gasohol, other
alcohol blended fuels, aviation gasoline, kerosene, distillate fuel oil, and
#1 and #2 diesel. The term does not include naphtha-type jet fuel, kerosene-type
jet fuel, or a petroleum product destined for use in chemical manufacturing
or feedstock of that manufacturing.]
[
Release - Any spilling
including overfills, leaking, emitting, discharging, escaping, leaching, or
disposing from an aboveground storage tank into groundwater or surface water,
or into subsurface or other surrounding soils.]
[
Retail service station
- A facility where flammable liquids used as motor fuels are stored and dispensed
from fixed equipment into the fuel tanks of motor vehicles and where such
dispensing is an act of retail sale.]
[
Tank - An aboveground
storage tank.]
§334.123.[
(a)
The following aboveground storage tanks
(ASTs)
are exempt from regulation under this subchapter[
(1)-(9)
(No change.)
(b)
The following pipeline facilities are exempt from regulation
under this subchapter, as provided in Texas Water Code, §26.344;
(1)
an interstate pipeline facility, including gathering lines
and any
AST
[
(A)-(B)
(No change.)
(2)
an intrastate pipeline facility or any
AST
[
(A)-(C)
(No change.)
(c)
Upon request by the agency, the owner
and operator of a tank claimed to be exempted under this section must provide
appropriate documentation or other information in a timely manner to support
that claim.
§334.124.[
(a)
Except as provided in subsection (b) of this section, the
following aboveground storage tanks
(ASTs)
are excluded from regulation
under this subchapter [
(1)
(No change.)
(2)
any emergency spill protection or emergency overflow
containment tank, including any sump or secondary containment system, which
is used solely for the temporary storage or containment of petroleum products
resulting from a leak, spill, overfill, or other unplanned release of petroleum
products from any source, and where the petroleum products are routinely removed
within 48 hours of the discovery of the release, provided that
this
[
(3)-(4)
(No change.)
(b)
Notwithstanding the exemptions in subsection (a) of this
section, any
AST
[
(c)
Upon request by the agency,
the owner and operator of a tank claimed to be excluded under this section
must provide appropriate documentation or other information in a timely manner
to support that claim.
§334.125.General Prohibitions and Requirements for Aboveground Storage Tanks (ASTs) [
(a)
Delivery prohibition.
[
Except as provided in paragraph
(1)
[
(1)
For new or replacement
AST systems, only during the initial period ending 90 days after that petroleum
product is first deposited into such system(s), a common carrier may accept,
as adequate to meet this requirement, documentation that the owner or operator
has a "temporary delivery authorization" (as defined at §334.127(h) of
this title) issued by the agency for the facility at which the new or replacement
AST system(s) exists.
(2)
A common carrier delivering petroleum product
into an AST system may observe a valid, current, original registration certificate
(or temporary delivery authorization, if applicable), or a legible copy of
the same.
[
(b)
Owner/Operator requirements. The owner and operator
of ASTs regulated under this section must make available to a common carrier
a valid, current Texas Natural Resource Conservation Commission (TNRCC) tank
registration certificate (or TNRCC temporary delivery authorization, as applicable)
before delivery of a petroleum product(s) into the AST(s) can be accepted.
The bill of lading for the first delivery of petroleum product into any new
or replacement AST system at the facility must be attached to the temporary
delivery authorization for that facility.
[
[
Registration. On or after
March 1, 1990, any person who owns or operates an aboveground storage tank
which contains or will contain petroleum products must register the tank with
the commission in accordance with §334.127 of this title (relating to
Registration for ASTs), except for:]
[
aboveground storage tanks specifically exempted
from regulation under §334.123 of this title (relating to Statutory Exemptions
for ASTs); and]
[
aboveground storage tanks specifically
excluded from regulation under §334.124 of this title (relating to Commission
Exclusions for ASTs).]
§334.126.Installation Notification for Aboveground Storage Tanks (ASTs) [
(a)
Except as provided in subsection (b) of this section, [
(1)
Installation notifications shall be submitted to the
agency
[
(A)
The notification may be provided either to the
agency's
[
(B)
Notification may be provided by the owner or operator,
or
an authorized [
(C)
Notifications shall be submitted on the
agency's
[
(D)
When appropriate, installation notifications for
ASTs
[
(E)
Between 24 and 72 hours prior to the scheduled time of
initiation of the installation, the owner or operator (or
authorized
[
(F)
The requirements and procedures for rescheduling, waiver
requests, and expiration as related to installation notifications for
ASTs
[
(2)
When requested by the
agency
[
(3)
In addition to the installation notification requirements
of this section, the owner or operator of a proposed
AST
[
(4)
When an existing
UST
[
(b)
The following
ASTs
[
(1)
ASTs
[
(2)
ASTs
[
(3)
movable or mobile
ASTs
[
§334.127.Registration for Aboveground Storage Tanks (ASTs) [
(a)
General provisions.
(1)
All aboveground storage tanks
(ASTs)
in existence
on or after September 1, 1989,
must
[
(A)
are [
(B)
are excluded from regulation [
(2)
The owner
and operator
of an
AST
[
(3)
All
ASTs
[
(b)
Existing tanks. Any person who owns
or operates
an
AST
[
(c)
New or replacement tanks. Any person who owns
or operates
a new or replacement
AST
[
(d)
Changes or additional information. An owner
or operator
of an
AST
[
(e)
Required
[
(1)
Any
AST
[
(2)
The tank registration form
must
[
(3)
All
AST
[
(4)
All AST
[
(5)
If additional documents are submitted with new or
revised registration data, the specific facility identification information
(including the facility identification number, if known)
must
[
(f)
Registration requirements for movable
ASTs
[
(1)
For the purposes of completing the tank registration form,
the owner
or operator
must
[
(2)
The owner
or operator must
[
(3)
Any movable or mobile tank which is registered at
the owner's
or operator's
business address or location, rather
than at the actual facility location,
must
[
(g)
Inadequate information. When any of the required
AST
[
(h)
Temporary delivery authorization.
(1)
Upon receipt of a TNRCC construction
notification form indicating pending installation of a new or replacement
AST system(s), the agency will issue a temporary delivery authorization for
that tank system(s).
(2)
The temporary delivery
authorization is valid for no more than 90 days after the first delivery of
petroleum product into the new or replacement AST system.
(3)
The AST owner and operator are responsible
for maintaining complete and accurate records of the date of the first deposit
of petroleum product into a new or replacement AST, as well as the date that
the initial 90 day period expires. The bill of lading for the first delivery
of regulated substance into any new or replacement AST at the facility must
be attached to the temporary delivery authorization for that facility.
[
§334.128.Annual Facility Fees for Aboveground Storage Tanks (ASTs) [
(a)
Fee assessments.
(1)
Except as provided in subsection (e) of this section, an
annual facility fee of $25
will
[
(2)
All annual facility fees
will
[
(3)
Payment of annual facility fees is due no later than
30 days after the date the
agency
[
(4)
(No change.)
(b)
Billing schedule.
(1)
The
agency
[
(2)
Regardless of the actual billing date, the total amount
of annual facility fees billed to and payable by an owner
will
[
(c)
Failure to make payment.
(1)
(No change.)
(2)
The
agency
[
(d)
Disposition of fees, interest, and penalties. As required
by the Texas Water Code
(TWC)
, §26.358(g), the
agency
[
(e)
Exception. An annual facility fee
will
[
§334.129.Release Reporting and Corrective Action for Aboveground Storage Tanks (ASTs) [
(a)
An owner or operator of an aboveground storage tank
(AST) must
[
(b)
An owner or operator of an
AST
[
§334.130.Reporting and Recordkeeping for Aboveground Storage Tanks (ASTs) [
(a)
Reporting. Owners and operators of aboveground storage
tanks
(ASTs) must
[
(1)
installation notification in accordance with §334.126
of this title (relating to Installation Notification for
Aboveground
Storage Tanks (ASTs)
[
(2)
application for approval of any proposed
AST
[
(3)
registration of
ASTs
[
(4)
payment of annual facility fees for
ASTs
[
(5)
all reports, plans, and certifications related to
actions taken in response to suspected and confirmed releases of petroleum
products, in accordance with §334.129 of this title (relating to Release
Reporting and Corrective Action for
Aboveground Storage Tanks (ASTs)
[
(6)
any other reports, filings, notifications, or other
submittals required by this subchapter, or otherwise required by the
agency
[
(b)
Recordkeeping.
(1)
General recordkeeping requirements.
(A)
Except as provided in subparagraph (B) of this paragraph,
owners and operators of
ASTs
[
(B)
Owners
and operators
of movable or mobile
ASTs
[
(2)
Required records and documents. Owners and operators
of
ASTs
[
§334.132.Other General Provisions for Aboveground Storage Tanks (ASTs) [
(a)
Other regulations. Compliance with the provisions of this
subchapter by an owner or operator of an aboveground storage tank
(AST)
must
[
(b)
Responsibilities of owners and operators. The owners and
operators of
ASTs
[
(c)
Inspections, monitoring, and testing.
(1)
For the purposes of developing or assisting in the development
of a regulation, conducting a study, or enforcing this subchapter, an owner
or operator of an
AST
[
(A)
(No change.)
(B)
permit a designated agent or employee of the
agency
[
(2)
For the purposes of developing or assisting in
the development of a regulation, conducting a study, or enforcing this subchapter,
the
agency's
[
(A)
enter at reasonable times an establishment or place in
which an
AST
[
(B)-(C)
(No change.)
(3)
The
agency
[
[
Each inspection made
under this section must be begun and completed with reasonable promptness.
Before a designated agent or employee of the commission enters private property
to carry out a function authorized under this section, the agent or employee
must give reasonable notice and exhibit proper identification to the manager
or owner of the property or to another appropriate person. The commission's
designated agent or employee must observe the regulations of the establishment
being inspected, including regulations regarding safety, internal security,
and fire protection.]
[
Pursuant to the provisions
of Texas Civil Statutes, Article 9201, §3 (as amended by Senate Bill
698, 71st Legislature, 1989), the commission shall have concurrent jurisdiction
with the State Board of Insurance on inspection of initial installation and
other administrative supervision of certain specified aboveground storage
tanks at retail service stations. Primary authority for inspection of initial
installation of such tanks shall be in the Texas Water Commission. The commission
shall report all violations of Texas Civil Statutes, Article 9201, §3,
in regard to aboveground storage tanks to the state fire marshal for enforcement
proceedings.]
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003491
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §334.131
(Editor's note: The text of the following section proposed
for repeal will not be published. The section may be examined in the offices
of the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
This section repeal is proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. This section
repeal is also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
This section repeal implements TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.131.Enforcement for ASTs.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003492
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.201-334.206, 334.208
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, §26.351, which provides the commission authority to adopt
rules establishing the requirements for taking corrective action in response
to a release from an underground or aboveground storage tank, and §26.454,
which provides the commission authority to adopt rules for the licensing of
installers and on-site supervisors, and continuing education requirements
for installers and on-site supervisors.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks and Subchapter K, Underground Storage Tank Installers.
§334.201.Purpose and Applicability.
(a)
Purpose. The purpose of this subchapter is to establish
the criteria by which target concentrations are established for the cleanup
of leaking storage tank site releases discovered and reported to the
agency
[
(b)
Applicability. For releases which are discovered and reported
to the
agency
[
§334.202.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(14)
(No change.)
(15)
Institutional control - Legally binding instruments
that the responsible party and the
agency
[
(16)
Maximum contaminant level or MCL - The maximum concentration
in water of a regulated substance established by the
United States
[
(17)
(No change.)
(18)
Potential beneficial use - The potential use derived
from a natural resource (for example, groundwater or surface water) to benefit
a user if that resource
was
[
(19)-(25)
(No change.)
§334.203.Risk-Based Criteria for Establishing Target Concentrations.
Owners and operators shall apply the following risk-based criteria
to evaluate sites and determine target concentrations:
(1)
Plan A site evaluation criteria. The owner and operator
should use Plan A established target concentrations to screen sites for closure,
or use the Plan A criteria to establish target concentrations for the purposes
of establishing a corrective action plan in accordance with §334.81 of
this title (relating to Corrective Action Plans), or to evaluate the potential
benefit of further site evaluation under paragraph (2) of this section.
(A)
The owner and operator shall consider potential exposure
to receptors through direct and indirect exposure pathways as required by
the
agency
[
(B)
For complete pathways, target concentrations shall be calculated
using equations and models, target risk goals, and exposure factors as established
by the
agency
[
(C)
Target concentrations shall be based upon chemical property
information defined by the
agency
[
(D)
Target concentrations for indirect or cross-media pathways
shall be based upon default media property assumptions defined by the
agency
[
(E)
(No change.)
(F)
The owner and operator shall use equations and models as
required by the
agency
[
(G)-(H)
(No change.)
(I)
Target groundwater concentration criteria:
(i)
the actual beneficial use or [
(ii)
(No change.)
(iii)
residential groundwater ingestion shall be the default
exposure pathway unless the owner and operator can show to the satisfaction
of the
agency
[
(iv)
the individual carcinogenic risk must not exceed a range
of 1 X 10
-6
to 1 X 10
-4
as required by the
agency
[
(v)
(No change.)
(vi)
Only the removal of
non-aqueous phase liquid
[
(vii)-(viii)
(No change.)
(J)
Target soil concentration criteria:
(i)
ingestion of soils from ground surface to a depth of 15
feet for residential and commercial/industrial land uses unless the owner
and operator can provide documentation to the satisfaction of the
agency
[
(ii)
inhalation of volatile and particulate emissions for residential
and commercial/industrial land uses, when the soil from ground surface to
a depth of
15
[
(iii)-(viii)
(No change.)
(K)
(No change.)
(L)
The maximum levels of regulated substances remaining in
all affected media shall meet the established target concentrations throughout
the entire extent of affected area unless the owner and operator can demonstrate
to the satisfaction of the
agency
[
(M)
The owner and operator shall submit reports in accordance
with a schedule and in a format established by the
agency
[
(N)
The owner and operator or
agency
[
(O)
Any necessary requirements as established by the
agency
[
(2)
Plan B site-evaluation criteria. The owner and
operator may elect to further evaluate a site under Plan B to determine more
appropriate target concentrations for affected media which may be used to
justify a closure recommendation, or for the purposes of establishing a corrective
action plan in accordance with §334.81 of this title [
(A)
The owner and operator shall consider potential exposure
to receptors through direct and indirect exposure pathways as required by
the
agency
[
(B)
For complete pathways, target concentrations shall be calculated
using equations, target risk goals, and exposure factors as established by
the
agency
[
(C)
Target concentrations shall be based upon chemical property
information defined by the
agency
[
(D)
Target concentrations for indirect or cross-media pathways
shall be based upon default media property assumptions and models defined
by the
agency
[
(E)
The
agency
[
(F)
For known or suspected carcinogens, the individual and
cumulative carcinogenic risk of 1 X 10
-6
to 1
X 10
-4
as required by the
agency
[
(G)
(No change.)
(H)
The owner and operator may apply target concentrations
for direct exposure pathways calculated under paragraph (1) of this section
at reasonable exposure points instead of the source area unless the source
area is a reasonable exposure point. All exposure points assumptions are subject
to approval by the
agency
[
(I)
The
agency
[
(i)-(v)
(No change.)
(vi)
estimates or predictions of compliance point concentrations
and degree and rate of transport of regulated substances are verified with
site monitoring data. Where site monitoring data and contaminant fate and
transport modelling results yield conflicting information, the
agency
[
(vii)
the
agency
[
(viii)
(No change.)
(J)-(K)
(No change.)
(L)
The owner and operator
,
or
the agency,
[
(M)
The owner and operator shall submit reports in accordance
with a schedule and in a format established by the
agency
[
(N)
The owner and operator shall meet all requirements imposed
by the
agency
[
(3)
Health-based target concentration established
pursuant to paragraphs (1) or (2) of this section shall be based upon toxicological
information current at the time the report is submitted to the
agency
[
(A)-(E)
(No change.)
(4)
(No change.)
(5)
The exposure assessment and determination of target
concentrations conducted pursuant to paragraphs (1) or (2) of this section
shall consider:
(A)-(D)
(No change.)
(E)
an exposure assessment considering exposure pathways as
requested by the
agency
[
(F)
(No change.)
(G)
any additional considerations as established by the
agency
[
(6)
After receipt of a written statement by the
agency
[
(A)-(D)
(No change.)
§334.204.Criteria for Selection of Land Use.
The owner and operator shall address each of the following when determining
the use of the affected property(ies).
(1)
(No change.)
(2)
Properties for which the future use of the property
is unknown (property is vacant or for sale) shall assume residential land
use unless the owner and operator can demonstrate to the satisfaction of the
agency
[
(3)
For property currently vacant, or not owned by the
owner or operator, the property owner should be interviewed to establish the
intended future use of the property. Statements explaining planned future
land use and signed by the affected property owners should be provided to
the
agency
[
(4)-(5)
(No change.)
(6)
Other information as requested by the
agency
[
§334.205.Institutional Control Requirements.
When institutional controls are assumed in determining target concentrations,
the owner and operator shall file institutional control requirements in the
county deed records of the county or counties in which the property affected
by the institutional control is located. Institutional controls shall be required
when such action is needed to demonstrate control or elimination of exposure
pathways in a manner consistent with §334.203(1) or (2) of this title
(relating to Risk-Based Criteria for Establishing Target Concentrations).
Institutional controls may also be required to provide notice to future land
owners that residual regulated substances are present at the site when the
site is considered protective so long as there is no substantial change in
site conditions or use of the property which would change the exposure conditions.
All institutional control information filed in the county deed records must
be written such that a layperson can easily understand it.
(1)
Institutional controls may be required as part of the corrective
action plan when:
(A)-(D)
(No change.)
(E)
when requested by the
agency
[
(2)
The owner and operator
,
or the
agency,
[
(3)
Institutional controls may only be employed on sites
when the owner(s) of the affected property(ies) is/are in agreement with the
placement and the conditions of the institutional control. A written statement
signed by the owner, or their designated agent, of each property directly
affected by the placement of the institutional control must be provided to
the
agency
[
§334.206.Criteria for Institutional Control Use.
(a)
Within 90 days of the date the
agency
[
(1)
the name and address of the owner and operator of the tract
of land to which the institutional controls are applicable, and a metes and
bounds description of the portion(s) of the tract of land affected by the
institutional control as agreed to by the
agency
[
(2)
(No change.)
(3)
a certification by a registered professional land
surveyor so registered by the Texas Board of Professional
Land
Surveying attesting to the accuracy of the descriptions provided in paragraphs
(1) and (2) of this subsection;
(4)
(No change.)
(5)
a statement that the
agency
[
(6)
a statement that information and documents concerning
the corrective action effort and contaminant conditions are available for
inspection upon request
of
[
(7)
(No change.)
(8)
other information as requested by the
agency
[
(b)
The current or future owner of the property affected by
the institutional control shall notify the
agency
[
(1)-(3)
(No change.)
(c)
When the implementation of institutional controls by the
owner and operator is a condition of site closure, and such condition was
stipulated in a final concurrence letter issued by the
agency
[
(d)
When appropriate analytical evidence demonstrates to the
reasonable satisfaction of the
agency
[
§334.208.Model Institutional Controls.
This is an example of the language the agency would accept for
deed restrictions, etc., that address residual contamination left at a given
location. In some instances an institutional control is an acceptable alternative
to further remediation, but adequate notice via a deed restriction, etc.,
is needed for the protection of current and future property owners.
Figure: 30 TAC §334.208
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003493
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.301 - 334.310, 334.312 - 334.315, 334.318, 334.320 - 334.322
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.301. Applicability of this Subchapter.
(a)
(No change.)
(b)
Deadline for
commencing corrective action
[
(1)
the confirmed release or releases which necessitated the
corrective action were reported to the
agency
[
(2)
the release is confirmed by the
agency
[
(c)
Expenses
considered for payment - time frame in which
corrective action performed
[
[
Expenses covered by House
Bill 1214 not covered by prior law. Subject to the other requirements of this
subchapter, expenses for corrective action covered by House Bill 1214, but
which were not allowable under prior law may be subject to reimbursement.
In order to process applications for new expenses allowed under House Bill
1214, the executive director may prescribe applications and processing procedures
for claims relating to expenses which were not allowable prior to June 16,
1991, consistent with the following guidelines:]
[
the procedures shall allow for the most expeditious
processing possible for all types of applications, new and old; and also]
[
the procedures shall be consistent with
sound management of the petroleum storage tank remediation fund.]
(d)
[
[
Eligibility under other rules.
An owner or operator of a petroleum storage tank who is not subject to this
subchapter or who does not qualify as an eligible owner or operator under
this subchapter is not automatically precluded from qualifying under any other
rules which the commission may adopt to implement House Bill 1588, however:]
[
any person seeking reimbursement or assistance
under this subchapter must meet the requirements of this subchapter; and]
[
any person seeking reimbursement or assistance
under any other rules which the commission may adopt must meet the requirements
of those rules.]
(e)
[
(1)
This subchapter authorizes applications for payment from
the
PSTR
[
(2)
This subchapter authorizes the
agency
[
(3)
All costs incurred in the course of performing corrective
action which are incurred on or after September 1, 1987, will be subject to
the terms of this subchapter for the purposes of determining whether those
costs are allowable. Nothing in this paragraph shall be construed to invalidate
payments made by the
agency
[
(f)
[
[
Priorities for reimbursement
applications to be processed during the 1994-1995 biennium pursuant to Senate
Bill 1243. The following provisions apply to the priority payment process
for reimbursement applications which is set forth in paragraph (5) of this
subsection.]
[
Applications within the priority system will
be processed in accordance with the number of tanks owned or operated by the
applicant, and further prioritized, as necessary, based upon the date the
application is received by the executive director.]
[
Only those applications received prior
to September 1, 1993, shall be eligible for payment under this subsection.]
[
The executive director may reimburse
applicants within a priority category within the priority system under paragraph
(5) of this subsection if there are insufficient funds to complete the priority
category, on a pro rata basis.]
[
Applications to be processed with Priority
4 applications.]
[
Regardless of the number of tanks owned or
operated, applications from the following shall be processed with Priority
4 applications:]
[
entities (other than municipalities and local
government entities) which have satisfied or can satisfy the criteria set
forth in §334.95 of this title (relating to the Financial Test of Self-Insurance)
for owners and operators of underground storage tanks; and]
[
state and federal entities.]
[
Information on satisfaction of self-insurance
requirements shall be provided by authorized representatives of applicants
by the deadline set forth in the executive director's letter requesting certification
of same. The executive director may request additional information, as necessary,
to support the certification. Failure to submit the certification form or
any additional requested information by the stated deadline may result in
an application being processed as a Priority 4 application.]
[
Notwithstanding the provisions of subparagraph
(A) of this paragraph, entities which satisfy the criteria for self-insurance
pursuant to subparagraph (B) of this paragraph and are nonprofit entities
shall be reimbursed under Priority 3 as described in paragraph (5)(C) of this
subsection.]
[
Information on entities' nonprofit status
shall be provided by authorized representatives of applicants by the deadline
set forth in the executive director's letter requesting the certification.
The executive director may request additional information, as necessary, to
support the certification. Failure to submit the certification form or any
additional requested information by the stated deadline may result in an application
being processed as a Priority 4 application.]
[
Priority system. Subject to the
conditions set forth in paragraphs (1)-(4) of this subsection, all applications
received will be processed in accordance with the following:]
[
Priority 1 - applications received from applicants
who own or operate less than 13 tanks;]
[
Priority 2 - applications submitted by applicants
who own or operate between 13 and 99 tanks;]
[
Priority 3 - applications submitted by applicants
who own or operate between 100 and 999 tanks; and]
[
Priority 4 - applications submitted by applicants
who own or operate 1,000 tanks or more.]
(g)
[
(h)
[
(1)
(No change.)
(2)
The executive director may not consider, process,
or pay a claim for reimbursement from the
PSTR
[
§334.302. General Conditions and Limitations Regarding Reimbursement.
(a)
To
[
(1)
results in contamination which penetrates beyond the excavation
zone of the tank system and which is above action levels determined by the
agency
[
(2)
is ultimately confirmed by the
agency
[
(3)
the confirmed release was initially discovered and
reported to the
agency
[
(b)
Subsection (a) of this section does not apply if the corrective
action is specifically required by an order of the commission, or a written
request or confirmation by the
agency
[
(c)
No payments shall be made by the
agency
[
(1)
the owner/operator contribution described in §334.312
of this title (relating to Owner/Operator Contribution), which the
agency
[
(2)-(3)
(No change.)
(4)
any expenses for corrective action incurred for confirmed
releases initially discovered and reported to the
agency
[
(5)
any
corrective action
expenses [
(d)
No expenses for which reimbursement is claimed under this
subchapter and no expenses which are to be applied to the owner/operator contribution
shall be subject to reimbursement or applied to the owner/operator contribution
unless the following conditions have been met.
(1)
An application for reimbursement must be filed by the
owner or operator of a petroleum storage tank or his duly authorized representative,
as required by §334.304 of this title (relating to Who May File Application[
(2)
Unless otherwise approved by the
agency
[
(3)
The application has been filed within the time prescribed
in §334.303 of this title (relating to
When
[
(4)
The person seeking reimbursement must be an eligible
owner or operator, as defined in §334.322 and §334.310 of this title
(relating to Subchapter H Definitions and Requirements for Eligibility[
(5)
The expenses for which reimbursement is sought, and
those which are to be applied to the owner/operator contribution must be allowable
costs, as defined in §334.308 of this title (relating to Allowable Costs
and Restrictions on Allowable Costs
[
(6)
The allowable costs for which reimbursement is sought
and those which are to be applied to the owner/operator contribution must
be reimbursable, as defined in §334.309 of this title (relating to Reimbursable
Costs[
(7)
(No change.)
(e)
For purposes of this subchapter only, the persons listed
in §334.310 of this title [
(f)-(i)
(No change.)
(j)
Authorization for an agent or assignee to receive payment
on behalf of an eligible owner or operator must be in writing and signed by
the eligible owner or operator who is requesting payment. The authorization
must clearly describe what funds the agent or assignee is authorized to receive.
If the
agency
[
(k)
(No change.)
(l)
The
agency
[
§334.303. When [
(a)
An application for reimbursement under this subchapter
must be filed
on or after January 17, 1990, but prior to June 1, 2003
.
(b)
No expenses are allowable for reimbursement under this
subchapter unless
a complete
[
(c)
For claimed expenses of corrective
action activities, the application for reimbursement will not be considered
complete until the supporting information, reports, and/or documentation required
by the agency under Subchapter D of this chapter (relating to Release Reporting
and Corrective Action) have been filed with the agency.
§334.304. Who May File Application.
Only the following person may file an application for reimbursement
under this subchapter:
(1)-(2)
(No change.)
(3)
an owner or operator ordered by the commission or
required in a written corrective action directive by the
agency staff
[
(4)
(No change.)
§334.305. Where and How Documents Must be Filed.
(a)
Any application for reimbursement or claim for payment
filed pursuant to this subchapter
, plus any fees and registration information
required pursuant to §334.310(a) of this title (relating to Requirements
for Eligibility) must be submitted to the agency, at the address specified
on the application form.
[
[
the original application,
plus any fees and registration information required pursuant to §334.310(a)
of this title (relating to Requirements for Eligibility) submitted to: Texas
Natural Resource Conservation Commission, P. O. Box 13087, Austin, Texas 78711-3087,
Attention: Petroleum Storage Tank Division, Reimbursement Section; and]
[
one complete copy of
the application and attachments submitted to the Texas Natural Resource Conservation
Commission Regional Office in the region where the tanks covered by the application
are located.]
(b)
All documents to be filed under this subchapter shall
be filed with the
agency
[
(1)-(3)
(No change.)
(4)
any other method approved by the
agency
[
(c)
The date of filing of any document required to be filed
with the
agency
[
(d)
(No change.)
§334.306. Form and Contents of Application.
(a)
An application for reimbursement filed pursuant to this
subchapter shall be on a form approved or provided by the
agency
[
(b)
The application
must
[
(1)
the name, address, telephone number, and signature of
all of the following: the applicant, the application preparer, and the prime
contractor and/or prime corrective action specialist required by §334.302
of this title (relating to General Conditions and Limitations Regarding Reimbursement),
unless otherwise approved by the
agency
[
(2)-(4)
(No change.)
(5)
any information required by the
agency
[
(6)
(No change.)
(7)
proof
[
(A)-(B)
(No change.)
(C)
the certification of a certified public accountant that
the expenses for which reimbursement is requested have been paid in full;
[
(D)
a notarized
[
(E)
a promissory note issued by
the eligible owner or operator to the person who performed the corrective
action for the claimed amount accompanied by a notarized affidavit signed
by the person who performed the corrective action, affirming that the amounts
which the applicant represents as being paid to person who performed the corrective
action, were paid in full, via the promissory note;
(8)
(No change.)
(9)
any other information which the
agency
[
(c)
[
(1)
after the completion of a phase
or pre-approved activity
; or
(2)
at points during the corrective action process agreed
to by the
agency
[
(d)
The
agency
[
(e)
The applicant must update his application with any information
not yet submitted to the
agency
[
(f)
For purposes of this subchapter, the following are the
phases of corrective action:
(1)-(2)
(No change.)
(3)
comprehensive site assessment [
(4)
risk assessment and remediation
planning phase;
(5)
[
(6)
[
(7)
site closure.
§334.307. Technical Information Required.
(a)
The following information may be required by the
agency
[
(1)
any information which the
agency
[
(2)-(3)
(No change.)
(b)
The
agency
[
§334.308. Allowable Costs and Restrictions on Allowable Costs.
(a)
(No change.)
(b)
Allowable costs are those costs and expenses which arise
directly from the performance of necessary corrective action in accordance
with the requirements of the
agency
[
(c)
Unless otherwise specified in subsection (g) of this section,
allowable costs shall include, but not be limited to, the following:
(1)-(2)
(No change.)
(3)
temporary provision of an alternate water supply[
(4)
(No change.)
(5)
emplacement of [
(6)-(7)
(No change.)
(8)
tank system integrity testing in accordance with
the methods prescribed by this chapter when such testing:
(A)
(No change.)
(B)
has been specifically requested by the
agency staff
[
(C)
(No change.)
(9)-(13)
(No change.)
(14)
a portion of costs, as specified in this section,
of tank removals, transport, and disposal of the components of the underground
or aboveground tank, including compliance with applicable requirements pursuant
to Subchapter D of this chapter [
(15)
permanent abandonment in-place, of a tank system,
including compliance with applicable requirements pursuant to Subchapter D
of this chapter [
(16)
(No change.)
(17)
preparation of technical reports required pursuant
to the requirements of Subchapter D of this chapter [
(18)
the
reasonable, as determined by the agency
and as limited by the reimbursable cost guidelines,
[
(19)
the reasonable value
, as determined by the
agency and as limited by the reimbursable cost guidelines,
of necessary
time spent by the applicant in planning and administering
the applicant's
[
(20)
performance of any corrective action measure which
is specifically required by an order of the commission or a written request
[
(21)
(No change.)
(22)
any other costs determined by the
agency
[
(d)
The costs of abatement or corrective action taken in response
to a release of hydraulic fluid from a hydraulic lift system are allowable
costs in situations where:
(1)
(No change.)
(2)
upon request by the
agency
[
(e)
The costs of abatement or corrective action taken in response
to a release of spent oil from a spent oil tank are allowable costs under
the following:
(1)
(No change.)
(2)
Upon request by the
agency
[
(f)
The costs of excavation, disposal, or treatment of backfill
material generated during the tank removal process, any additional sampling
and reporting required under Subchapter D of this chapter [
(g)
The following types of costs are those which will not
be considered allowable costs under this subchapter:
(1)-(4)
(No change.)
(5)
permanent abandonment in-place of a tank system,
where abandonment in-place rather than tank system removal is deemed by the
agency
[
(6)-(14)
(No change.)
(15)
costs of tank integrity testing when it is not specifically
required by this chapter, requested by the
agency staff
[
(16)
costs of any corrective action incurred by an owner
or operator on or after the date that the executive director commences corrective
action at the owner's or the operator's facility pursuant to
§334.84
[
(17)-(19)
(No change.)
(20)
excluding releases identified under subsections
(d) and (e) of this section,
the cost of abatement or corrective action
taken in response to a release of
:
[
(A)
a regulated substance, which
is not a petroleum product; and
(B)
a release of a petroleum product
that has commingled with a regulated substance, which is not a petroleum product;
and,
(21)
(No change.)
§334.309. Reimbursable Costs.
(a)
The
agency
[
(b)
(No change.)
(c)
For those activities that require preapproval, pursuant
to §334.310(f) of this title (relating to Requirements for Eligibility),
the
agency
[
§334.310. Requirements for Eligibility.
(a)
For a person to be an eligible owner or operator under
this subchapter, each of the following requirements must be met.
(1)
The person must meet the other requirements of this chapter
and must be:
(A)
(No change.)
(B)
any past owner or operator of a tank described in subparagraph
(A) of this paragraph who performed corrective action on or after September
1, 1987
,
and on or before September 1,
2003,
[
(C)-(E)
(No change.)
(F)
an adjacent landowner who can clearly prove that the land
has been contaminated by a release of petroleum products from a tank described
in subparagraph (A) of this paragraph which is not located on said land, and
who performed corrective action in response to a release of petroleum products
from such tank, and either:
(i)
performed emergency abatement actions by completing all
the following:
(I)
notifying the
agency
[
(II)
(No change.)
(III)
taking actions necessary to protect against imminent
danger to human health and safety by mitigating fire, explosion, and vapor
hazards, by removing phase-separated product from structures, basements, sumps,
etc., or performing other actions as deemed necessary by the executive director.
Restoration of site to preexisting conditions, cost of relocating utility
structures, site assessment, and remediation are not considered part of emergency
abatement activities. Any expenses incurred after 72 hours from commencement
of the action must be approved by the
agency
[
(IV)
having the release and threat ultimately confirmed by
the
agency
[
(ii)
committed to undertake the entire cleanup of the leak
and contamination from the tank on his property and on all other property
by:
(I)
obtaining prior approval in writing from the
agency
[
(II)-(IV)
(No change.)
(2)
An underground and aboveground storage
tank installed prior to December 1, 1995, which is required to be registered
pursuant §334.7 of this title (relating to Registration for Underground
Storage Tanks ("USTs") and UST Systems) or §334.127 of this title (relating
to Registration for ASTs) must be registered with the
agency
[
(A)-(C)
(No change.)
(3)
The owner or operator of an underground and
aboveground storage tank installed on or after December 1, 1995
,
must be registered with the
agency
[
(4)
All annual facility fees due since September 1, 1987,
pursuant to §334.21 of this title (relating to Fee Assessment), and since
September 1, 1989, pursuant to §334.128 of this title (relating to Annual
Facility Fees) for all underground and aboveground storage tanks which they
own or operate must be paid to the
agency
[
(5)
Any release on which a claim under this subchapter
is based must be discovered and reported to the
agency
[
(b)
(No change.)
(c)
The
agency
[
(d)
(No change.)
(e)
In no case will reimbursement be made under subsection
(a)(1)(F) of this section for duplication of assessment and remediation activities
involving the same contamination plume. There will be no reimbursement for
adjacent landowner cleanup allowed under subsection (a)(1)(F) of this section
for activities at a site which occur after the site has been designated for
state lead cleanup under §334.84 of this title (relating to Corrective
Action by the
Agency
[
(f)
(No change.)
§334.312. Owner/Operator Contribution.
(a)
The
agency
[
(b)-(c)
(No change.)
(d)
If an owner or operator's corrective action plan as required
by §334.81 of this title (relating to Corrective Action Plan) is not
approved by the
agency
[
(1)-(4)
(No change.)
(e)
If an owner or operator's corrective action plan as required
by §334.81 of this title [
(1)-(4)
(No change.)
(f)
(No change.)
(g)
It shall be presumed for purposes of this section that
a person owns:
(1)
the number of tanks for which he is registered as the
owner in the records of the
agency
[
(2)
the number of tanks actually owned by the eligible
owner or operator on the date that an administratively complete application
is filed with the
agency
[
§334.313. Review of Application [
(a)
An application for reimbursement or supplemented application
filed under this subchapter shall be subject to review by the
agency
[
(1)
to determine if the information which is required to be
submitted under this subchapter has been filed with the
agency
[
(A)
an application submitted will
be reviewed by the staff for completeness. To be considered complete, an application
must contain the following information:
(i)
a completed application form, which has been
provided or approved by the agency, containing the information required under §334.306(a)
and (b)(1)-(4) of this title (relating to Form and Contents of Application);
(ii)
be accompanied by legible copies of invoices
(contractor and subcontractor) and proof of payment as required under §334.306(b)(6)
and (7) of this title;
(iii)
be accompanied by copies of preapproval documentation
and technical information requested in the application form, provided or approved
by the agency, under §334.306(b)(5) of this title and §334.307(a)
of this title (relating to Technical Information Required); and
(iv)
the completion of an Application Checklist,
provided with the application form, verifying that the applicant and application
preparer have reviewed the application for completeness;
(B)
if an application is received
which is not complete, the agency shall notify the applicant of the deficiencies
by mail. If the required information is not received within 30 days of the
date of the deficiency notice, the applicant must reapply;
(C)
if 30 days is insufficient
time to prepare an adequate response, the applicant may request one extension
of 30 days to supply the required information. If the extension is granted
and the required information is not received from the applicant within that
30 days, the applicant must reapply;
(D)
after an application is determined
by the agency to be complete, the agency will then commence a substantive
(technical and financial) review of the application;
(E)
if it is determined that an
otherwise complete application contains any costs which required prior agency
approval prior to implementation as required by §334.310(f) of this title
(relating to Requirements for Eligibility), and such prior approval was not
obtained, the applicant will be notified and the application will not be forwarded
for further review until such time as the agency reviews applications with
non-preapproved costs as allowed under subsection (f) of this section;
(F)
if it has been determined
that an otherwise complete application contains costs for a corrective action
activity which has been performed improperly, or the information or report
that documents the activity has been determined to be deficient or defective
by the agency under Subchapter D of this chapter (relating to Release Reporting
and Corrective Action), the applicant will be notified and the application
will not be forwarded for further review. The applicant may resubmit the application
after the defects or deficiencies have been resolved and the agency concurs
that the corrective action activity or documentation is acceptable under Subchapter
D of this chapter;
(G)
the received date of the application
is considered to be the date which the complete application was received by
the agency, or the date which the required additional information (under subparagraph
(B) of this paragraph) was received by the agency; and
(2)
(No change.)
(b)
An application which does not contain all the information
required by this subchapter
will not be considered a complete claim and
will not be processed
[
(c)
The
agency
[
(d)
If, during the course of the substantive
(technical
and financial)
review, the
agency
[
(1)
require the applicant to provide
such additional information. Further review of the application will be postponed
until such information is received by the agency. The received date for the
complete claim will be considered the date on which the agency received such
additional required information; or
(2)
issue the fund payment
report, but withhold payment for the insufficiently documented costs or insufficiently
documented corrective action activity.
(e)
An application for reimbursement or supplemental application
filed under this subchapter shall be subject to audit by the
agency
[
(f)
The executive director may not consider, process, or pay
a claim for reimbursement for corrective action work begun after September
1, 1993, and without prior
agency
[
§334.314. [
(a)
Upon completion of the review of an application, the
agency
[
(b)
The applicant shall review the fund payment report and
shall file a written response with the
agency
[
(1)-(3)
(No change.)
(c)
Any item recommended for payment in the fund payment report
to which the applicant objects shall not be eligible for payment until the
agency
[
(d)
Any item recommended for payment in the fund payment report
to which the applicant consents by filing a timely response to the fund payment
report shall be eligible for reimbursement when the
agency
[
(e)
The
agency
[
(f)
(No change.)
§334.315. Protest of Fund Payment Report.
(a)
If
the applicant
[
(b)
The protest must be in writing and signed by the applicant.
It must be on a form prescribed or approved by the
agency
[
(1)
(No change.)
(2)
the address of the facility in question and the
Texas Natural Resource Conservation Commission
[
(3)
(No change.)
(4)
a clear statement of each item which the applicant
disputes on the [
(c)
(No change.)
(d)
The applicant and the staff of the executive director
shall attempt to resolve informally any disputes over the fund payment report.
If no resolution is reached by the staff and the applicant, the applicant
may file a petition requesting the commission to grant relief. Within
60
[
§334.318. Recovery of Costs.
The
agency
[
§334.320. Responsibilities of Owners , [
(a)
(No change.)
(b)
The owner and operator are obligated to pursue whatever
actions are necessary to minimize any immediate impacts of threats to human
health and safety and the environment and to stabilize the conditions caused
by the release. When financially unable to pursue immediate abatement actions,
the owner or operator shall notify the
agency
[
(c)
No person shall knowingly submit false information to
the
agency
[
§334.321. Corrective Action by the Agency [
[
The executive director may
undertake corrective action under this subchapter until September 1, 2001
in any case if:]
[
the owner or operator of the underground or
aboveground storage tank is unwilling to take corrective action;]
[
the owner or operator of the underground
or aboveground storage tank cannot be found;]
[
the owner or operator of the underground
or aboveground storage tank, in the opinion of the executive director, is
unable to take the corrective action necessary to protect the public health
and safety or the environment;]
[
the executive director determines that
more expeditious corrective action is necessary to protect the public health
and safety or the environment from harm;]
[
the executive director considers it necessary
to take corrective action to protect the public health and safety or the environment;
or]
[
the owner or operator of the underground
or aboveground storage tank demonstrates his/her financial inability to the
executive director to take the corrective action necessary to protect the
public health and safety or the environment.]
[
Except as provided in subsection
(d) of this section, the executive director must provide notice of his intent
to take corrective action to all owners and operators of petroleum storage
tanks at a facility who are then currently registered in accordance with the
registration requirements of this chapter before he undertakes corrective
action at the facility.]
[
The notice must identify
the property, state that the executive director intends to take corrective
action at the facility, and state that costs incurred by the owner or operator
from and after the date the executive director commences corrective action
will not be allowable costs for reimbursement, unless authorized in writing
by the executive director.]
[
The executive director may
commence corrective action without prior notice if in his discretion immediate
action is required to protect public health and safety or to protect the environment
from harm. The executive director must provide the notice that he has commenced
corrective action to all owners and operators of petroleum storage tanks at
a facility who are then currently registered in accordance with the registration
requirements of this chapter as soon as possible in the manner prescribed
by subsection (c) of this section.]
[
No costs of corrective action incurred by
an owner or operator at a facility on or after the date that the
agency
[
§334.322. Subchapter H Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
[
Abate -- To reduce in sufficient
degree or intensity the source of the release or impacted area, and potential
fire, explosion, or vapor hazards such that immediate threats to human health
no longer exist. This includes the removal of all regulated substances from
the aboveground or underground tank, and the removal of phase-separated products
released from the tank.]
[
Aboveground storage
tank -- A non-vehicular device with a capacity of more than 1,100 gallons,
and all connecting piping both above and below ground, that is made of non-earthen
materials; located on or above the surface of the ground or on or above the
surface of the floor of a structure below ground, such as a mineworking basement,
or vault; and designed to contain an accumulation of petroleum.]
(1)
[
(2)
[
(3)
[
[
Backfill -- The volume
of materials or soils surrounding the underground storage tank and bounded
by the ground surface, walls, and floor of the tankpit.]
(4)
[
(5)
[
(6)
[
[
Corrective action --
Any assessment and remedial activities undertaken to investigate the extent
of and remediate contamination. Unless otherwise approved by the executive
director, written approval is required prior to implementation of any corrective
action activity.]
[
Corrective action plan
(remedial action plan) -- A detailed plan developed to address site remediation
of soil, groundwater, or surface water contamination that provides for adequate
protection of human health safety and the environment. The selection of the
most effective and efficient remedial method will be dictated by the nature
and location of the release, the site soils, hydrogeological conditions, and
the required degree of remediation. The remedial method selection should take
into consideration such factors as cost, time, and state compliance requirements
with each method. The title of any report which contains a corrective action
plan must include the designation "remedial action plan."]
(7)
Eligible aboveground
storage tank -- A non-vehicular device with a capacity of more than 1,100
gallons, and all connecting piping both above and below ground, that is made
of non-earthen materials; located on or above the surface of the ground or
on or above the surface of the floor of a structure below ground, such as
a mineworking basement, or vault; and designed to contain an accumulation
of petroleum.
(8)
[
(9)
[
(10)
[
(11)
[
[
House Bill 1214 --
House Bill 1214 (72nd Legislature, effective June 16, 1991).]
[
Hydraulic fluid --
Any regulated substance that is normally used in a hydraulic lift system.]
(12)
[
(13)
[
(14)
[
[
Any one or combination of
aboveground storage tanks and all connecting piping that contain petroleum
products and that are regulated by the commission; or]
[
Any one or combination of
underground storage tanks and any connecting underground pipes that contain
petroleum products and that are regulated by the commission.]
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003494
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.402 - 334.407, 334.409, 334.411, 334.412, 334.414, 334.416 - 334.424, 334.426, 334.428
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, §26.351, which provides the commission authority to adopt
rules establishing the requirements for taking corrective action in response
to a release from an underground or aboveground storage tank, and §26.454,
which provides the commission authority to adopt rules for the licensing of
installers and on-site supervisors, and continuing education requirements
for installers and on-site supervisors.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks and Subchapter K, Underground Storage Tank Installers.
§334.402. Application for Certificate of Registration.
Any person as defined in §334.412 of this title (relating to [
(1)
A person shall apply for a certificate of registration
on a form approved by the
agency
[
(2)
The application for certificate of registration shall
include:
(A)
(No change.)
(B)
an authorized representative's name and title, when
the applicant is not an
actual individual
[
(C)
the address, telephone number, and
an authorized
[
(D)
documentation of [
(i)
proof
[
(ii)
a financial statement (balance sheet) prepared in
conformity with accounting principles as defined by the American Institute
of Public Accountants, indicating an applicant's current net worth of not
less than $25,000; or a letter from a certified public accountant who is not
employed by the applicant or does not receive payment from the applicant on
a regular basis verifying that the applicant's current net worth is not less
that $25,000
[
(E)
documentation of quality of performance including one
of the following:
(i)
sworn statements, on forms approved by the
agency
[
(ii)
a written explanation indicating good cause as determined
by the
agency
[
(iii)
other documentation of quality of performance which
is determined by the
agency
[
(F)
a sworn statement from the applicant attesting to the
accuracy of the information provided on the application
;
[
(G)
payment of the initial application/issuance
fee of $150 as required under §334.406 of this title (relating to Fee
Assessments for Certificate Registration).
§334.403. Issuance of Certificate of Registration.
(a)
An application for a certificate of registration shall
be accepted for processing upon
agency
[
(b)
Within 30 days of receipt of an application, the
agency
[
(c)
Within 30 days of receipt of a properly completed application,
the
agency
[
(d)
(No change.)
§334.404. Renewal of Certificate of Registration.
(a)
(No change.)
(b)
The
agency
[
(c)
The
agency
[
(d)
A properly completed application for renewal
(including
but not limited to proper payment of renewal fees and certification of adequate
financial requirements as prescribed in §334.402(2)(D) of this subchapter
(relating to Application for Certificate of Registration))
shall be
submitted to the
agency
[
(1)
If the applicant has not been
notified by the agency of the renewal decision by the time the certificate
of registration expires, and a complete renewal application was received 30
days prior to the expiration date, then the certificate of registration is
considered provisionally renewed during that interim period between that expiration
date and the date the agency notifies the applicant of the renewal decision;
(2)
If a complete application
for renewal is not filed at least 30 days prior to the expiration date of
the current registration, and the agency has not processed that late renewal
application by the expiration date, the current registration shall expire
and will not be considered provisionally renewed. The registration may be
renewed any time within one year of the expiration date. Services performed
after expiration, but before renewal, shall be considered to have been performed
without a proper registration under this subchapter.
(3)
Certificates of registration
issued anytime during the one year period after the expiration date will have
an expiration date of one year following the previous expiration date.
(e)
The application must be accompanied by the renewal fee
prescribed by §334.406 of this title (relating to Fee Assessments for
Certificate of Registration), and
the contractor must certify that he/she
has maintained
[
(f)
The contractor shall reapply for the issuance of a certificate
of registration as prescribed by §334.402 of this title [
(g)
Upon proper completion of the certificate renewal process,
the
agency
[
§334.405. Grounds for Denial of Certificate of Registration.
The
agency
[
(1)-(3)
(No change.)
(4)
for other cause(s) which in the opinion of the
agency
[
§334.406. Fee Assessments for Certificate of Registration.
The fees for certificate of registration are as follows.
(1)
The following fee schedule shall apply for the registration
of underground storage tank contractors:
(A)
initial
application
/issuance
fee
--
$150
[
[
issuance fee -- $100;]
(B)
[
(C)
[
(D)
[
(E)
[
(2)
A certificate renewal application shall be considered
late when received by the
agency
[
(3)
All fees addressed by
this section are nonrefundable.
§334.407. Other Requirements for Certificate of Registration.
(a)
All registered contractors shall notify the
agency
[
(1)-(3)
(No change.)
(4)
change of
authorized
[
(5)-(7)
(No change.)
(b)
A registered UST contractor is required to maintain [
(c)
An
[
(d)
Compliance with the provisions of this subchapter by a
registered contractor shall not relieve such contractor from the responsibility
of compliance with all applicable regulations legally promulgated by the United
States Environmental Protection Agency, United States Occupational Safety
and Health Administration, United States Department of Transportation, [
§334.409. Revocation, Suspension, or Reinstatement of Certificate of Registration and License.
(a)
If the executive director determines good cause exists
to suspend or revoke the certificate of registration of a contractor, the
executive director shall request that the commission schedule a hearing before
the hearing examiner or the commission. Such hearing shall be held only after
proper notice has been provided to the certificate holder. The commission
may suspend or revoke the certificate if the commission finds that the holder
of the certificate was responsible for violating the provisions of this chapter,
for falsifying any information or documents submitted to the
agency
[
(b)
(No change.)
(c)
A certificate shall be revoked for a period of one year
after which the holder of the certificate may reapply for reinstatement pursuant
to the requirements of §334.402 of this title (relating to Application
for Certificate of Registration). If a certificate is revoked a second time,
the revocation shall be permanent. The holder of a certificate which has been
revoked for a period of one year shall not have to meet the application requirement
of §334.402(2)(E) of this title [
§334.411. Procedures for Revocation, Suspension, or Reinstatement of a Certificate of Registration and License [
(a)
A proceeding to revoke or suspend a certification
of registration of a contractor must be commenced by:
[
(1)
the executive director through
the filing of a petition; or
(2)
the
commission on its own motion.
(b)
If the executive director
determines good cause exists to revoke or suspend a certificate of registration
of a contractor, the executive director shall file a petition with the chief
clerk and provide notice to the contractor. To the extent possible, the procedure
required to assess administrative penalties under Chapter 70 of this title
(relating to Enforcement) shall be followed to revoke or suspend a certification
of registration under this subchapter.
(c)
In response to a petition,
or on its own motion to revoke or suspend a certificate of registration, the
commission may:
(1)
suspend a certification of registration issued
under this subchapter for any period it deems reasonable and necessary under
the circumstances, but typically up to one year for a first suspension, and
permanent revocation for a second suspension;
(2)
place conditions on reinstatement of registration;
and
(3)
issue any other orders permitted by law.
(d)
Revocation or suspension of
a certificate of registration is cumulative of any other remedies available
to the commission by law.
§334.412. Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
[
Business representative --
A person (e.g., proprietor, senior partner, president, or designated representative
of a company) who shall be responsible for compliance with this subchapter.]
(1)
[
[
Commission -- The Texas
Water Commission.]
(2)
[
(A)
preparation of the tank bedding immediately prior to receiving
the tank;
(B)
setting of the tank and the piping, including placement
of any anchoring devices, backfill to the level of the tank, and strapping,
if any;
(C)
connection of piping systems to the tank;
(D)
all pressure testing of the
UST
[
(E)
completion of backfill and filling of the excavation;
(F)
any time during the repair in which the piping system
is connected or reconnected to the tank;
(G)
any time during the repair in which the tank or its associated
piping is tested; and
(H)
any time during the removal of the tank.
(3)
[
[
Executive director --
The executive director of the Texas Water Commission.]
(4)
[
(A)
installation of new or previously used tanks at a new
facility, and the addition or replacement of tanks at an existing facility;
(B)
installation of new or replacement piping for new or existing
tanks;
(C)
addition of secondary containment equipment for new or
existing tanks or piping;
(D)
addition or replacement of the following types of equipment
at a new or existing UST facility:
(i)
spill and overfill prevention equipment, as required in §334.51
of this title (relating to Spill and Overfill Prevention and Control);
(ii)
equipment or devices which are permanently installed
for the purpose of providing release detection or release monitoring as required
for compliance with §334.50 of this title (relating to Release Detection),
except:
(I)
observation wells or monitoring wells (excluding equipment
and devices therein) constructed by a well driller who possesses the appropriate
license required by the Texas
Department of Licensing & Regulation
[
(II)
any equipment temporarily installed solely for the purpose
of conducting a tank or piping tightness test, as defined in §334.2 of
this title (relating to Definitions), except when a tightness test is a prescribed
element of a critical juncture of an installation, repair, or removal. Temporarily
in this context means the reasonable amount of time required to attach the
equipment, make the tests, and remove the equipment, under the given conditions
at the site;
(E)
installation or replacement of anchoring systems designed
to prevent tank flotation;
(F)
installation or replacement of vent lines at new or existing
UST facilities;
(G)
installation or replacement of submersible pumping systems
at new or existing UST facilities; and
(H)
installation or replacement of any underground Stage I
or Stage II vapor recovery systems.
[
Installer -- A
person who participates in or supervises the installation, repair, or removal
of underground storage tanks.]
(5)
[
(6)
[
(A)
A professional engineer registered to practice in the
State of Texas who has met the licensing requirements of this subchapter;
or
(B)
An individual with at least two years of active experience
in the vocation of installation, removal, or repair of
USTs
[
[
Operator -- Any
person in control of, or having responsibility for, the daily operation of
an underground storage tank system.]
[
Owner -- Any person
who currently holds legal possession or ownership of a total or partial interest
in the underground storage tank system. For the purposes of this chapter,
where the actual ownership of a UST system is either uncertain, unknown, or
in dispute, the fee simple owner of the surface estate where the UST is located
shall be considered the UST system owner, unless the owner of the surface
estate can demonstrate by appropriate documentation (deed reservation, invoice,
bill of sale, etc.) or by other legally acceptable means that the UST system
is owned by others. The term "owner" does not include a person who holds an
interest in a UST system solely for financial security purposes unless, through
foreclosure or other related actions, the holder of such security interest
has taken legal possession of the UST system.]
[
Person -- An individual,
trust, firm, joint-stock company, corporation, government corporation, partnership,
association, state, municipality, commission, political subdivision of a state,
an interstate body, a consortium, joint venture, commercial entity, or the
United States government.]
(7)
[
(8)
[
(A)
relining an
UST
[
(B)
the performance of a tightness test to ascertain the integrity
of the tank, except when a tightness test is a prescribed element of a critical
juncture of an installation, repair, or removal;
(C)
the maintenance and inspection of cathodic protection
devices by a corrosion expert or corrosion technician;
(D)
emergency actions to halt or prevent leaks or ruptures;
or
(E)
minor maintenance on ancillary aboveground equipment.
[
Underground storage
tank (or UST) -- Any one of combination of underground tanks and any connecting
underground pipes used to contain an accumulation of regulated substances,
the volume of which, including the volume of the connecting underground pipes,
is 10% or more beneath the surface of the ground.]
(9)
[
(10)
[
(11)
[
§334.414. License for Installers and On-Site Supervisors.
(a)
(No change.)
(b)
After December 1, 1990, no person shall supervise the
installation, removal, or repair of an underground storage tank
(UST)
system unless that person holds a valid license issued by the
agency
[
(c)
After December 1, 1990, no person shall participate in
the installation, removal, or repair of an
UST
[
(1)
that person holds a valid license issued by the
agency
[
(2)
(No change.)
(d)
An
UST
[
(e)
(No change.)
§334.416. Requirements for Issuance of License A and License B.
(a)
Each
applicant
[
(b)-(c)
(No change.)
(d)
Each applicant shall have at least two years of active
experience in installation, removal, or repair of underground storage tanks
(USTs)
, underground utilities, or other engineering construction.
(e)
Each applicant's qualifications shall meet the minimum
requirements of this section, and shall be approved by the
agency
[
(f)
Subsequent to the
agency's
[
(g)
After December 1, 1991,
prior to the examination,
each applicant for License A shall have completed 28 hours of training
and education courses in the installation and repair of
USTs
[
(h)
After December 1, 1991,
prior to the examination,
each applicant for License B shall have completed 12 hours of training
and education courses in the removal of USTs.
(i)
The training and education courses prescribed in subsections
(g) and (h) of this section shall be approved by the
agency
[
(1)-(6)
(No change.)
(7)
other nationally recognized organizations approved
by the
agency
[
(j)-(k)
(No change.)
§334.417. Application for License A and License B.
(a)
An applicant for License A and B shall provide the following
information:
(1)-(4)
(No change.)
(5)
after December 1, 1991,
documentation
[
(6)
sworn statements, on forms approved by the
agency
[
(7)
(No change.)
(b)
All applications for licensing shall be submitted on forms
provided by the
agency
[
(c)
The applicant shall
take
[
(d)
An application shall be denied [
§334.418. Notification of Examination.
Upon receipt of a properly completed application as required by §334.417
of this title (relating to Application for License A or License B) and the
application
[
§334.419. License A and License B Examination.
(a)
The License A and License B examinations shall each be
divided into categories comprising specific underground storage tank (UST)
subjects. The number of categories in the License A and License B examinations
shall be determined by the
agency
[
(b)
Questions used in License A and License B examinations
shall be derived from the applicable rules of this chapter and standards,
instructions, and recommended practices published by organizations with expertise
in various aspects of the installation, repair, or removal of
USTs
[
(1)-(6)
(No change.)
(c)
(No change.)
(d)
The
agency
[
(e)
Within 30 days prior to a scheduled examination, an applicant
may petition the
agency
[
(f)
The
agency
[
(g)
At any time within six months of the date the applicant
is notified of the results of the examination, an applicant may personally
inspect the examination in the
agency's
[
(h)
At any time within six months of the applicant's examination
results, an applicant who does not successfully complete the examination may
request in writing that the
agency
[
(i)
An examination shall be considered successfully completed
when an applicant correctly answers 70% of the questions [
§334.420. Issuance of License A or License B.
(a)
After an applicant meets the requirements of §334.416
of this title (relating to Requirements for Issuance of License A or License
B), the
agency
[
(b)
(No change.)
(c)
The
agency
[
(d)
A duplicate license to replace a lost or destroyed license
shall be issued by the
agency
[
§334.421. Renewal of License.
(a)
(No change.)
(b)
The
agency
[
(c)
A properly completed application for renewal shall be
submitted to the
agency
[
(1)
documentation of
[
(2)
(No change.)
(d)
A properly completed application for renewal (including
but not limited to proper payment of renewal fees and documentation of completion
of required continuing education) shall be submitted to the agency at least
30 days prior to the expiration date of the license.
[
(1)
If the applicant has not been
notified by the agency of the renewal decision by the time the current license
expires, and a complete renewal application was received 30 days prior to
the expiration date, then the license is considered provisionally renewed
during that interim period between that expiration date and the date the agency
notifies the applicant of the renewal decision;
(2)
If a complete application
for renewal is not filed at least 30 days prior to the expiration date of
the current license, and the agency has not processed that late renewal application
by the expiration date, the current license shall expire and will not be considered
provisionally renewed. The license may be renewed any time within one year
of the expiration date. Services performed after expiration, but before renewal,
shall be considered to have been performed without a proper license under
this subchapter.
(3)
Licenses issued anytime
during the one year period after the expiration date will have an expiration
date of one year following the previous expiration date.
(e)
(No change.)
(f)
Upon proper completion of the license renewal process,
the
agency
[
(g)
Continuing education requirements for renewal of
licenses are as follows:
[
(1)
License A - eight hours every
two years.
(2)
License B - eight hours
every two years.
(3)
License A and B - eight
hours every two years for each license. Courses which are approved for both
License A and B may be applied as credit for both licenses (for example: a
holder of both License A and B may satisfy the requirement for both licenses
by attending a course which is approved for eight hours for both licenses).
Attendance at courses which are approved for only License A or License B will
not be accepted as satisfying the requirement for 8 hours for both licenses.
[
The renewal applicant for
License B shall complete at least eight hours of continuing training and education
courses prior to the renewal of the license.]
(h)
[
(1)-(7)
(No change.)
(i)
[
§334.422. Grounds for Denial of License A or License B.
The
agency
[
(1)-(3)
(No change.)
(4)
when an applicant fails to pay the appropriate fee
pursuant to §334.423 of this title (relating to Fee Assessments for License
A and License B); [
(5)
when an applicant is
identified by the Texas Guaranteed Student Loan Corporation (TGSLC) as being
in default on loans guaranteed by the TGSLC, in accordance with the Texas
Education Code, Chapter 57, the Texas Natural Resource Conservation Commission
(TNRCC) executive director shall not renew the license unless:
(A)
the person submits to the TNRCC a certificate
from the TGSLC that indicates that the person is not in default on a loan
guaranteed by TGSLC; or
(B)
the person submits to the TNRCC a certificate
from the TGSLC that indicates that the person has entered a repayment agreement
on the defaulted loan guaranteed by TGSLC;
(6)
when an applicant
is identified by the Office of the Attorney General (OAG) as being delinquent
on child support payments, in accordance with the Texas Family Code, Chapter
232, the TNRCC executive director shall not renew the license unless:
(A)
the person submits to the TNRCC a certificate
from the OAG that indicates that the person is not delinquent on child support
payments; or
(B)
the person submits to the TNRCC a certificate
from the OAG that indicates that the person has entered a child support repayment
agreement with the OAG; or
(7)
[
§334.423. Fee Assessments for License A and License B.
(a)
The following fee schedule for a License A and License
B shall apply to installers and on-site supervisors:
(1)
initial license application fee -- $200
[
(2)
examination fee -- $50.00 (retests only)
[
(3)
(No change.)
(4)
late renewal fee --
$25
[
(5)
(No change.)
(b)
(No change.)
[
An applicant taking both
the License A and License B examinations on the same day will be assessed
a $50 fee.]
(c)
[
(d)
All fees addressed by this
section are nonrefundable.
§334.424. Other Requirements for a License A and License B.
(a)
All License A and License B installers and on-site supervisors
shall notify the
agency
[
(1)-(3)
(No change.)
(b)
A licensed installer or on-site supervisor subject to
the provisions of this subchapter that is engaged in the installation, repair,
or removal of underground storage tanks (USTs) shall be required to comply
with
all
applicable technical standards of Subchapter C of this
chapter (relating to Technical Standards) and Chapter
213
[
(c)
Compliance with the provisions of this subchapter by a
licensed installer or on-site supervisor shall not relieve such licensee from
the responsibility of compliance with all applicable regulations legally promulgated
by the United States Environmental Protection Agency, United States Occupational
Safety and Health Administration, United States Department of Transportation,
[
(d)
A licensed installer or on-site supervisor who offers
to undertake, represents to undertake, or does undertake the installation,
repair, or removal of an
UST
[
§334.426. Revocation, Suspension, or Reinstatement of a License A and License B.
(a)
If the executive director determines good cause exists
to suspend or revoke the license of an installer or on-site supervisor
,
the executive director shall request that the commission shall schedule
a hearing before the hearing examiner or the commission. Such hearing shall
be held only after proper notice has been provided to the license holder.
Factors upon which a license may be suspended or revoked include, but are
not limited to:
(1)-(2)
(No change.)
(3)
falsification of information or documents submitted
to the
agency
[
(4)-(5)
(No change.)
(b)-(c)
(No change.)
§334.428. Procedures for Revocation, Suspension, or Reinstatement of a License A and License B [
(a)
A proceeding to revoke or suspend the
license of an installer or on-site supervisor must be commenced by:
[
(1)
the executive director through
the filing of a petition; or
(2)
the commission on its
own motion.
(b)
If the executive director
determines good cause exists to revoke or suspend the license of an installer
or on-site supervisor, the executive director shall file a petition with the
chief clerk and provide notice to the installer or on-site supervisor. To
the extent possible, the procedure required to assess administrative penalties
under Chapter 70 of this title (relating to Enforcement) shall be followed
to revoke or suspend such a license under this subchapter.
(c)
In response to a petition,
or on its own motion to revoke or suspend the license of an installer or on-site
supervisor, the commission may:
(1)
suspend the license of an installer or on-site
supervisor issued under this subchapter for any period it deems reasonable
and necessary under the circumstances, but typically up to one year for a
first suspension, and permanent revocation for a second suspension;
(2)
place conditions on reinstatement of the
license; and
(3)
issue any other orders permitted by law.
(d)
Revocation or suspension of
the license is cumulative of any other remedies available to the commission
by law.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003495
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §334.413, §334.429
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
These section repeals are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. These section
repeals are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, and §26.351, which provides the commission authority to
adopt rules establishing the requirements for taking corrective action in
response to a release from an underground or aboveground storage tank.
These rule repeals implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.413. License for Installers and On-site Supervisors.
§334.429. Penalties Effective On or After September 1, 1995.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003496
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
30 TAC §§334.452, 334.453, 334.455-334.463, 334.465-334.467
STATUTORY AUTHORITY
The amended sections are proposed under Texas Water Code (TWC), §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state and
to adopt rules repealing any statement of general applicability that interprets
law or policy; §5.105, which authorizes the commission to establish and
approve all general policy of the commission by rule; and §26.011, which
requires the commission to control the quality of water by rule. The amended
sections are also proposed under TWC, §26.345, which provides the commission
authority to develop a regulatory program and to adopt rules regarding underground
storage tanks, §26.351, which provides the commission authority to adopt
rules establishing the requirements for taking corrective action in response
to a release from an underground or aboveground storage tank, and §26.454,
which provides the commission authority to adopt rules for the licensing of
installers and on-site supervisors and continuing education requirements for
installers and on-site supervisors.
The proposed sections implement TWC, Chapter 26, Subchapter I, Underground
Storage Tanks and Subchapter K, Underground Storage Tank Installers.
§334.452.Exemptions from Subchapter J.
(a)
The requirements of this subchapter do not apply to corrective
action services which the party claiming the exemption can show were performed
or offered to be performed at
leaking petroleum storage tank (LPST)
[
(1)
completely exempt from regulation under §334.3(a)
of this title (relating to [
(2)
completely excluded from regulation under §334.4(a)
of this title (relating to [
(b)
The requirements of this subchapter do not apply to
corrective action specialists
[
(c)
The requirements of this subchapter do not apply to
corrective action project managers
[
(d)
The requirements of this subchapter do not apply to:
(1)
installation, repair, and removal of underground storage
tanks
(USTs)
when conducted and supervised by persons or entities
registered or licensed in accordance with Subchapter I of this chapter (relating
to Underground Storage Tank Contractor Registration and Installer Licensing);
and
(2)
the following limited activities, but only when such
activities are performed as part of an
UST
[
(A)
subject to prior written
agency
[
(B)
(No change.)
(C)
passive aeration and necessary routine tilling and sampling
of the excavated materials described in subparagraph (A) of this paragraph
in accordance with
air program regulations
[
(D)
(No change.)
(e)-(g)
(No change.)
(h)
The requirements of this subchapter do not apply to owners
or operators, their direct employees, parent companies, or subsidiaries who
on behalf of the owner or operator coordinate with, manage, or supervise corrective
action specialists or corrective action project managers, or coordinate with
the
agency
[
(i)
A
[
(j)
A professional engineer who is currently
duly licensed with the Texas Board of Professional Engineers, and who is also
properly registered as a "corrective action project manager" in accordance
with the applicable requirements of this subchapter shall be subject only
to the disciplinary procedures adopted by the Texas Board of Professional
Engineers relative to any violations of the agency's requirements for corrective
action activities which involve the "practice of engineering", as defined
in the Texas Engineering Practice Act, Texas Civil Statutes, Article 3271a,
as amended, or which meet the definition of "engineering" or "professional
engineering" or "professional engineering services" in the rules of the Texas
Board of Professional Engineers (22 TAC §§131.1 et seq.), or which
are otherwise within the statutory or regulatory jurisdiction of the Texas
Board of Professional Engineers. A duly licensed professional engineer who
is responsible for any other violations of agency requirements shall remain
subject to all other applicable enforcement actions, sanctions, and penalties
by the agency, as authorized under applicable law.
(1)
When the agency determines that an alleged
violation of the provisions of this chapter related to corrective action activities
has been made by a registered corrective action project manager who is also
duly licensed as a professional engineer by the Texas Board of Professional
Engineers, the agency shall refer the matter to the Texas Board of Professional
Engineers for appropriate disciplinary actions, enforcement, sanctions, or
penalties, as applicable.
(2)
If the Texas Board of Professional
Engineers does not pursue appropriate disciplinary or enforcement actions
due to a lack of statutory or regulatory authority or jurisdiction, or for
any other reason, the agency shall reserve the authority to pursue all appropriate
enforcement actions, sanctions, and or penalties, in accordance with applicable
law and rules.
§334.453.General Requirements and Prohibitions.
(a)
Requirements. Except as otherwise provided by this subchapter,
on or after the effective date of these rules:
(1)
all corrective action services covered by this subchapter
must be [
(2)
all corrective action services covered by this subchapter
must be supervised by a [
(3)
(No change.)
(4)
all reports submitted to the
agency
[
(5)
any person or entity performing corrective action
services as a corrective action specialist at an
leaking petroleum storage
tank (LPST)
[
(b)
Prohibitions.
(1)
Except as otherwise provided by this subchapter, on or
after the effective date of these rules:
(A)
no person shall [
(i)-(ii)
(No change.)
(B)-(D)
(No change.)
(E)
no person or entity who submits the following types of
information to the executive director shall submit information which they
know or reasonably should have known to be false or deceptive:
(i)
(No change.)
(ii)
an application for reimbursement submitted to the executive
director under Subchapter H of this chapter (relating to [
(iii)
(No change.)
(iv)
an affidavit to the executive director regarding
notice of corrective action
[
(2)
Except as otherwise provided by this subchapter,
on or after the effective date of these rules:
(A)-(B)
(No change.)
(C)
no person shall perform, direct, allow, or cause any corrective
action service covered by this subchapter to be performed unless the corrective
action service is being supervised by a [
(D)
no person or entity offering to perform or performing corrective
action services as a corrective action specialist shall represent that they
are registered under this subchapter or represent that any corrective action
services they perform are subject to reimbursement by the
agency
[
(E)
no person or entity who is a registered underground storage
tank [
(c)
Any violation of this section or any other requirements
of this subchapter shall be subject to enforcement including administrative,
civil, and/or criminal penalties as provided in
Chapter 70 of this title
(relating to Enforcement) and Texas Water Code, Chapter 7
[
(d)
Corrective
action specialists
[
(e)
Any penalty assessed or order issued under this section
is cumulative of any other remedies available to the
agency
[
§334.455.Notice to Owner or Operator.
(a)
A
notice of corrective action
[
(b)
(No change.)
(c)
The notice must contain the following:
(1)-(4)
(No change.)
(5)
a statement signed by the owner or operator and by
a representative of the corrective action specialist which indicates both
parties are aware of the registration requirements for corrective action specialists
and corrective action project managers set forth in this subchapter, and that
reimbursement will be in accordance with the provisions of Subchapter H of
this chapter (relating to [
(d)-(e)
(No change.)
(f)
Any bid, proposal, or offer that indicates a company or
person is a corrective action specialist must reproduce in its entirety the
following disclaimer. The following disclaimer must be a part of any notice
required by this section.
(1)
The registration of a corrective action specialist
with
[
(2)
Reimbursement for approved work is subject to the
eligibility requirements set forth in Subchapter H of this chapter [
§334.456.Application for Certificate of Registration for Corrective Action Specialist.
As determined by the executive director, an application for registration
as a
corrective action specialist
[
(1)
(No change.)
(2)
The application shall include at a minimum:
(A)
the applicant's business name, business mailing address
and telephone number,
and
permanent physical address;
(B)
an authorized
[
(C)
the address, telephone number, and
authorized
[
(D)
documentation of
[
(i)
proof
[
(ii)
one of the following:
(I)
a financial statement
(balance sheet)
prepared
in conformity with accounting principles as defined by the American Institute
of Public Accountants, indicating an applicant's current (not more than 12
months old) net worth of not less than $25,000 that is signed by the applicant's
[
(II)
a letter from a certified public accountant, who
is not employed by the applicant or does not receive payment from the applicant
on a regular basis, verifying the applicant's net worth to be not less than
$25,000
[
(E)
documentation of quality of performance including one of
the following:
(i)
sworn statements, on forms approved by the executive director,
from at least three references, not related by blood or marriage, for whom
the applicant performed corrective action services, within the immediately
preceding 24 months. Applicable corrective action experience shall not be
limited to experience gained at
leaking petroleum storage tank
[
(ii)
a written explanation indicating good cause as determined
by the executive director for not providing the sworn statements required
in clause (i) of this subparagraph. For the purposes of this subsection, an
applicant's experience under the supervision of a registered corrective action
project manager may be sufficient documentation of quality of performance
if the executive director determines that the applicant had substantial involvement
in the decision-making process during the performance of the work. The written
explanation shall include a detailed description of three case histories of
corrective action services performed by the applicant during the previous
24 months
.
[
[
(3)
The applicant shall submit a [
(4)
(No change.)
§334.457.Application for Certificate of Registration for Corrective Action Project Manager.
An application for registration as a
corrective action project
manager
[
(1)
(No change.)
(2)
Application for certificate of registration shall
include at a minimum:
(A)
(No change.)
(B)
documentation of quality of performance including one of
the following:
(i)
sworn statements, on forms approved by the executive director,
from at least three references, not related by blood or marriage, for whom
the applicant has performed corrective action services, within the immediately
preceding 24 months. Applicable corrective action experience shall not be
limited to experience gained at
leaking petroleum storage tank
[
(ii)
(No change.)
[
(3)
At the time of applying for registration
as a
corrective action project manager
[
(A)
two years of experience in corrective action services,
as described in paragraph (2)(B)(i) of this subsection [
(i)
a bachelor's degree from an accredited
college or university in a physical science, natural science, biological science,
environmental science, engineering, applied geography, or in a subject directly
relevant to the environmental field which is technical in focus (for each
degree relied upon, the applicant shall provide with the registration application
an original official transcript from the college or university where the degree
was taken); or
(ii)
current license as a professional engineer
in Texas. The registration examination requirement is waived for qualified
professional engineers who are currently duly licensed to practice engineering
in the State of Texas, as provided in §334.452(i) of this title (relating
to Exemptions From Subchapter J);
(B)
four years of experience in corrective action services,
as described in paragraph (2)(B)(i) of this subsection, and the passage of
a registration examination prepared and administered by the
agency
[
(4)
The applicant shall submit a [
(5)
(No change.)
(6)
The applicant must take a registration
examination within 120 days after the agency's approval of the application.
Failure to take the examination within the allowed time will result in denial
of the application. An applicant who has received a denial may reapply for
a registration.
§334.458.Review and Issuance of Certificates of Registration.
(a)
An application for a certificate of registration for a
corrective action specialist is [
(b)
Upon receipt of an application, the executive director
shall review the application for [
(c)
The executive director shall issue the applicant a certificate
of registration within 45 days if:
(1)
the
[
(2)
the applicant meets the education and/or experience
criteria required by §334.456 of this title [
(d)
A certificate of registration issued under this subchapter
is not transferable, and must be renewed [
§334.459.Continuing Education Requirements for Corrective Action Project Managers.
(a)
Except as provided with regard to professional engineers
in 334.452(i) of this title (relating to Exemptions From Subchapter J), a
[
(b)
To
[
(1)
environmental contamination assessment or remediation at
a leaking petroleum storage tank (LPST)
[
(2)-(6)
(No change.)
(c)-(d)
(No change.)
(e)
Courses taken to fulfill Occupational Safety and Health
Agency requirements will not count towards the
required continuing education
instruction
[
(f)
Corrective action project managers shall submit to the
executive director
certificates
[
§334.460.Renewal of Certificate of Registration for Corrective Action Specialist and Corrective Action Project Manager.
(a)
As of the effective date of this rule, the agency
will transition to renewal of certificates of registration on a two-year basis.
For one year after the effective date of this subsection, existing certificates
with even registration numbers will be renewed for one year and certificates
with odd registration numbers will be renewed for two years. Following this
designated period, each
[
(b)-(c)
(No change.)
(d)
The renewal application must be accompanied by all
information needed for the application to be complete, including the required
financial documentation, and any other information necessary for the agency
to complete the renewal process.
[
(1)
An application for renewal of registration
for a corrective action specialist is considered complete when the executive
director has received an application for renewal on a form provided by the
executive director, which has been completed in a manner acceptable to the
executive director; certification that the company has continued to meet the
financial requirements of §334.456(2)(D) of this title (relating to Application
for Certificate of Registration for Corrective Action Specialist); and payment
for applicable fees as provided by §334.467 of this title (relating to
Fee Assessments for Certificates of Registration).
(2)
An application for renewal of registration
for a corrective action project manager is complete when the executive director
has received an application for renewal on a form provided by the executive
director, completed in a manner acceptable to the executive director; certificates
of completion of continuing education requirements for the corrective action
project manager as required under §334.459 of this title (relating to
Continuing Education for Project Managers); and payment of applicable fees
as provided by §334.467 of this title.
(e)
(No change.)
(f)
A properly completed application for renewal (including
but not limited to proper payment of renewal fees, certification of adequate
financial requirements as prescribed in §334.456(D)(2)(i) of this title,
and documentation of completion of required continuing education) shall be
submitted to the executive director at least 30 days prior to the expiration
date of the certification of registration.
[
(1)
If the applicant has not been notified
by the executive director of the renewal decision by the time the certification
of registration expires, and a complete renewal application was received by
the deadline given above, then the certification of registration is considered
provisionally renewed during that interim period between that expiration date
and the date the executive director notifies the applicant of the renewal
decision.
(2)
If a complete application for renewal
is not filed at least 30 days prior to the expiration date of the current
registration and the executive director has not processed the renewal application,
the current registration shall expire and will not be considered provisionally
renewed. The registration may be renewed within 60 days of the expiration
date. Corrective action services performed after expiration, but before renewal,
shall be considered to have been performed without a proper registration under
this subchapter.
(g)
If a corrective action specialist
has not met all
requirements
[
(h)
Upon proper completion of the certificate renewal process,
the executive director shall issue a
documentation of approval
[
§334.461.Denial of Certificate of Registration.
The executive director may deny a certificate of registration or request
for renewal of certificate upon the following reasons, including, but not
limited to:
(1)
when an applicant registering or renewing registration
as a corrective action specialist or corrective action project manager fails
to timely and completely submit the information
and fees
required
by this subchapter for the registration or renewal
being sought
[
(2)
when the executive director determines that an applicant
has submitted information which he knows or reasonably should have known to
be false or deceptive, whether the information is on:
(A)
(No change.)
(B)
an application for reimbursement submitted to the executive
director under Subchapter H of this chapter (relating to [
(C)
any report submitted to the executive director in the course
of performing corrective action on an
leaking petroleum storage tank
[
(D)
(No change.)
(3)-(4)
(No change.)
(5)
when the applicant has not performed corrective action
services in accordance with acceptable industry practices and standards; [
(6)
when an applicant is identified by
the Texas Guaranteed Student Loan Corporation (TGSLC) as being in default
on loans guaranteed by the TGSLC, in accordance with the Texas Education Code,
Chapter 57, the Texas Natural Resource Conservation Commission (TNRCC) executive
director shall not renew the license unless:
(A)
the person submits to the TNRCC a certificate
from the TGSLC that indicates that the person is not in default on a loan
guaranteed by TGSLC; or
(B)
the person submits to the TNRCC a certificate
from the TGSLC that indicates that the person has entered a repayment agreement
on the defaulted loan guaranteed by TGSLC;
(7)
when an applicant is identified
by the Office of the Attorney General (OAG) as being delinquent on child support
payments, in accordance with the Texas Family Code, Chapter 232, the TNRCC
executive director shall not renew the license unless:
(A)
the person submits to the TNRCC a certificate
from the OAG that indicates that the person is not delinquent on child support
payments; or
(B)
the person submits to the TNRCC a certificate
from the OAG that indicates that the person has entered a child support repayment
agreement with the OAG; or
(8)
[
§334.462.Other Requirements.
(a)
All registered corrective action specialists shall notify
the executive director in writing within 30 days of any change which occurs
during the validated year. Such changes shall include, but are not limited
to:
(1)-(3)
(No change.)
(4)
change of
authorized
[
(5)-(7)
(No change.)
(b)
A registered corrective action specialist is required to
maintain such financial
information
[
(c)
Except as provided with regard to professional engineers
in 334.452(i) of this title (relating to Exemptions From Subchapter J), a
[
(d)
Compliance with the provisions of this subchapter by any
person shall not relieve such person from the responsibility of compliance
with all applicable regulations legally promulgated by the United States Environmental
Protection Agency, United States Occupational Safety and Health Administration,
United States Department of Transportation, [
§334.463.Grounds for Revocation or Suspension of Certificate of Registration.
(a)
The commission may revoke or suspend the certificate of
registration of a corrective action specialist for reasons including, but
not limited to:
(1)
when a corrective action specialist submits information
to the executive director which
the corrective action specialist
[
(A)
an application for registration or renewal submitted to
the executive director under this subchapter; [
(B)
an application for reimbursement submitted to the executive
director under Subchapter H of this chapter (relating to [
(C)
any report submitted to the executive director in the course
of performing corrective action on an
leaking petroleum storage tank
(LPST)
[
(D)
an affidavit to the executive director regarding notice
of corrective action under §334.455 of
this
[
(E)
any other report or document filed with the
agency
[
(2)
(No change.)
(3)
when a corrective action specialist or a person performing
corrective action services under
the
[
(4)
(No change.)
(5)
when a corrective action specialist
,
or
a person performing corrective action services under
the
[
(6)
(No change.)
(b)
The commission may revoke or suspend the certificate of
registration of a corrective action project manager for reasons including,
but not limited to:
(1)
when a corrective action project manager submits information
to the executive director which
the corrective action project manager
[
(A)
an application for registration or renewal submitted to
the executive director under this subchapter; [
(B)
an application for reimbursement submitted to the executive
director under Subchapter H of this chapter [
(C)
any report submitted to the executive director in the course
of performing corrective action on an LPST site; [
(D)
an affidavit to the executive director regarding notice
of corrective action under §334.455 of
this
[
(E)
any other report or document filed with the
agency
[
(2)
when a corrective action project manager
,
or a person performing corrective action services under
the
[
(3)
when a corrective action project manager
,
or a person performing corrective action services under
the
[
(4)
for any other cause which in the opinion of the
agency
[
§334.465.Procedures for Revocation or Suspension of a Certificate of Registration.
(a)
(No change.)
(b)
If the executive director determines that good cause exists
to revoke or suspend a certificate of registration of a corrective action
specialist or a corrective action project manager, the executive director
shall file a petition with the chief clerk and provide notice to the corrective
action specialist or corrective action project manager. To the extent possible,
the procedure required to assess administrative penalties under Chapter
70
[
(c)
In response to a petition, or on its own motion to revoke
or suspend a certificate of registration, the commission may:
(1)
suspend a certification of registration issued under this
subchapter for any period it deems reasonable and necessary under the circumstances,
but typically
up to one year
[
(2)-(3)
(No change.)
(d)
Revocation or suspension of a certificate of registration
is cumulative of any other remedies available to the
agency
[
§334.466.Reinstatement of a Certificate of Registration.
(a)
A certificate of registration which has not expired during
the period that the holder of the certificate is under suspension shall be
reinstated upon termination of the suspension period. The
agency
[
(b)
(No change.)
(c)
The holder of a certificate
, including a professional
engineer,
that has been revoked by the
agency
[
§334.467.Fee Assessments for Certificates of Registration.
(a)
The following fee schedule shall apply to the registration
of
corrective action specialists
[
(1)
initial application fee -
$400
[
(2)
[
(A)
one-year renewal - $175;
(B)
two-year renewal - $350;
(3)
late renewal fee [
(A)
one-year renewal - $25;
(B)
two-year renewal - $50;
(4)-(5)
(No change.)
(b)
The following fee schedule shall apply to the registration
of
corrective action project
[
(1)
initial application fee -
$250, includes the initial
$50 examination fee
[
(2)
examination fee - $50
(required for retakes
);
(3)
[
(A)
one-year renewal - $75;
(B)
two-year renewal - $150;
(4)
late renewal fee
:
[
(A)
one-year renewal - $25;
(B)
two-year renewal - $50;
(5)
(No change.)
(c)
An application for renewal shall be considered late when
received by the
agency
[
(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 19, 2000.
TRD-200003497
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: August 1, 2000
For further information, please call: (512) 239-4712
Chapter 205.
GENERAL PERMITS FOR WASTE DISCHARGES
(1)
] General permit -- A permit
issued under the provisions of this chapter authorizing the discharge of waste
into or adjacent to
water
[
waters
] in the state for
one or more categories of waste discharge within a geographical area of the
state or the entire state as provided by
Texas Water Code (TWC), §26.040.
[
§26.040, Texas Water Code.
]
(2)
] Individual permit --
A permit, as defined in
the TWC, §26.001,
[
§26.001
of the Texas Water Code,
] issued by the commission or the executive
director to a specific person or persons in accordance with the procedures
prescribed in
the TWC, Chapter 26,
[
Chapter 26 of the Texas
Water Code
] (other than
TWC, §26.040
[
§26.040
of the Water Code
]).
(3)
] Notice of intent or NOI
-- A written submittal to the executive director from a discharger requesting
coverage under the terms of a general permit.
(4)
(5)
(6)
(7)
(8)
] Texas Pollutant Discharge
Elimination
System
[
Systems
] (TPDES) -- The state program
authorized under Clean Water Act, §§307, 318, 402, and 405
for issuing, amending, terminating, monitoring, and enforcing permits, and
imposing and enforcing pretreatment requirements under [
Clean Water Act §§307,
402, 318 and 405,
] the Texas Water Code and Texas Administrative Code
regulations.
waters
] in the state by category [
of dischargers
] if
the commission
finds
the
discharges
[
dischargers
] in the category
are storm water or the dischargers in the category
:
and
]
pursuant to
] subsection (a) of this section either within
the entire state or within a discrete geographical area identified by an appropriate
division or combination of geographic or political boundaries. [
For example,
certain dischargers of the same type of waste may be covered under one statewide
general permit. General permits granted for discrete geographical areas may
be based upon, but not limited to, factors such as related water quality standards,
climatological conditions, and watershed specific standards in accordance
with Chapter 311 of this title (relating to Watershed Protection). Discharges
to be regulated with effluent limitations specific to a particular water body
may be covered under a general permit limited to a particular watershed or
geographical area.
]
The commission may issue a general
permit pursuant to subsection (a) of this section only if it finds the dischargers
in the category are more appropriately regulated under a general permit than
under individual permits, on the basis that both:
]
(1)
(2)
The commission shall publish notice of a draft general permit in a daily or
weekly newspaper of general circulation in the area affected by the activity
that is the subject of the proposed general permit and in the
Texas Register.
If the draft general permit will have statewide applicability,
then the requirement for newspaper notice shall be accomplished by publishing
notice in the daily newspaper of largest general circulation within each of
the following metropolitan areas: Dallas; Houston; San Antonio; Austin; Tyler;
Corpus Christi; the Lower Rio Grande Valley; Amarillo; Lubbock; the Permian
Basin; and El Paso.
]
TPDES
] general permits, mailed notice of the draft general
permit will also be provided to the following:
state and
federal agencies
] for which notice is required in 40
Code of Federal
Regulations (CFR)
[
CFR
], §124.10(c);
and
(4)
] any other person the
executive director or chief clerk may elect to include.
be in accordance with §39.11 of this title (relating
to Text of Public Notice) except where clearly not applicable. Each notice
must include an invitation for written comments by the public regarding the
draft general permit. The public notice will specify a comment period of at
least 30 days and the public notice will be published not later than the 30th
day before the commission considers the approval of a general permit. Additionally,
the public notice of a draft TPDES general permit must include either a map
or description of the permit area.
]
Public Meetings.
]
executive director or commission
] may hold a public meeting to provide an additional opportunity for
public comment and shall hold such a public meeting when [
either
]
the executive director [
or commission
] determines, on the basis
of requests,
that
a significant degree of public interest in a
draft general permit
exists.
The commission shall
give notice of
] a public meeting
shall be
[
under this
subsection
] by publication in the
Texas Register
not later than the 30th day before the date of the meeting.
Mailed notice
] of the
public meeting
shall be mailed
[
will also be provided
]
to the following:
state and federal
agencies
] for which notice is required in 40 CFR, §124.10(c);
(D)
] any other person the executive
director or chief clerk may elect to include; and
(E)
] persons who filed public comment
or request for a public meeting on or before the deadline for filing public
comment or request for a public meeting.
be in accordance with
] §39.11 of this title (relating to Text of
Public Notice) [
except where clearly not applicable
]. Each notice
must include an invitation for written or oral comments by the public regarding
the draft general permit.
commission
] receives
public comment during the comment period relating to issuance of a general
permit, the
executive director
[
commission
]
shall
respond
[
may issue the general permit only after responding
]
in writing to these comments
, and this response shall be made available
to the public and filed with the chief clerk at least ten days before the
commission considers the approval of the general permit
. The response
shall address written comments received during the comment period and oral
or written comments received during any public meeting held by the
agency
[
commission
].
The commission shall consider all public
comment in making its decision and shall either adopt the executive director's
response to public comment or prepare its own response.
will
] be made available to the public
for inspection at the
agency's
[
commission's Wastewater Permits
Section in its
] Austin office and also in the appropriate regional offices.
will
] be mailed to each person who made a comment.
will
] be published in the
Texas Register
.
and to
] amendment, renewal,
revocation, or cancellation of a general permit.
§305.62(c)(2)
] of this title (relating to Amendment), without newspaper
publication.
New Permittees. A discharger who is not
covered by an individual permit may submit to the executive director a written
notice of intent to be covered by the general permit in accordance with this
section. The executive director may deny the request for coverage under the
general permit, in accordance with subsection (e) of this section.
]
Existing Individual Permittees
].
A discharger who is covered by an individual permit may obtain substitute
authorization to discharge waste under a general permit if, at least 180 days
prior to the expiration date of the individual permit, the permittee submits
a notice of intent as specified by subsection (g) of this section. The discharger
shall also request that the individual permit be canceled or that the existing
permit be amended to remove an authorization pertaining to an affected outfall.
The commission will cancel or amend the permit if the executive director does
not deny the NOI under subsection (e) of this section.
]
The individual permit will be automatically
canceled when authorization under the general permit becomes effective.
]
If the NOI is denied under subsection
(e) of this section, the discharger shall apply for renewal of the individual
permit prior to the expiration date of the individual permit to maintain authorization
to discharge, in accordance with §305.63 of this title (relating to Renewal)
].
A general permit will specify
any applicable deadline for filing the notice of intent. A discharger may
begin discharging under the general permit on the 31st day after the executive
director receives the discharger's notice of intent unless the executive director
before that time notifies the discharger pursuant to subsection (e) of this
section that the discharger is not eligible for authorization under the general
permit. A NOI must be submitted to the executive director by certified mail,
return receipt requested
].
Authorization to discharge under a general
permit does not confer a vested right. After written notice to the discharger,
the executive director may suspend a discharger's authority to discharge under
a general permit. The executive director may require a person discharging
under a general permit to immediately cease the discharge. The executive director
may also require the person to apply for and obtain an individual permit.
The notice of suspension to such a person shall include a brief statement
of the basis for this decision under subsection (f) of this section, a statement
of whether the discharger shall immediately cease the discharge, an application
form, a statement setting the deadline for filing the application for an individual
permit, and a statement that the person's discharge authorization under the
general permit shall be suspended on the effective date of the commission's
action on the individual permit application unless the commission expressly
provides otherwise. If an application is not received by the deadline specified,
the executive director shall suspend a discharger's authority to discharge
under a general permit
].
The executive director shall deny an NOI to
discharge under an existing general permit and may require the person to apply
for and obtain an individual permit if the discharger is not eligible for
authorization under the general permit for reasons including, but not limited
to, the following:
]
(1)
(2)
(3)
(A)
(B)
(C)
(D)
(E)
(4)
(5)
(A)
(B)
(C)
(D)
(6)
(7)
(8)
(f)
(1)
(2)
(3)
(4)
(5)
(A)
(B)
(C)
(D)
(E)
(6)
(7)
(8)
(9)
(10)
(g)
]
The general permit shall
describe the
[
The
] content of the
NOI
[
notice of intent
]
, if one is required by
[
shall be
specified in
] the general permit
. At a minimum, the NOI
[
which
] shall require the submission of information necessary for
adequate program implementation including, at a minimum, the legal name and
address of the owner and operator, the facility name and address, specific
description of its location, type of facility or discharges, and the receiving
water(s). An NOI shall be signed in accordance with §305.44 of this title
(relating to Signatories to Applications).
(h)
]
The general permit may
require a
[
A
] person seeking authorization by general permit
to
[
shall
] submit an application fee payable to the
agency
[
commission
] at the time of filing an
NOI
[
notice of intent
]. The amount of the fee
may
[
shall
] be set in accordance with §305.53 of this title (relating
to Application Fee) or
may
[
will
] be specified in each
general permit and NOI form. If a person is denied coverage under the general
permit in accordance with subsection
(c) or
(e) of this section,
any
[
the
] application fee will be applied to the application
fee required for an individual permit application for the same discharge.
(i)
]
The general permit shall
require a
[
A
] person authorized to discharge waste under
a general permit
to
[
must
] submit up-to-date information
to the executive director in a
notice of change
[
new NOI
]
not later than
ten
[
10
] days prior to a change in previous
information provided to the
agency
[
commission
] or any
other change with respect to the nature or operations of the facility or the
characteristics of the discharge.
In cases where the general permit requires
that an NOI be submitted, the general permit shall require that when
[
When
] the
ownership
[
owner
] of the facility
changes or
is
[
has been
] transferred, a
notice
of termination be submitted by the present owner, and a
new NOI [
must
] be submitted
by the new owner,
not later than
ten
[
10
] days prior to the change in ownership.
(j)
] When requested by a county
or municipality, the commission may establish a provision in a general permit
for notification by the discharger to a county judge or mayor of a municipality
of NOIs that would allow discharges within their respective jurisdiction.
If the executive director
or commission
denies
authorization
[
an NOI
] for a proposed discharge in the
county or
municipality, the executive director
shall
[
will
]
notify the county judge or mayor.
the facility
] shall submit
an NOI, if one is required
by the general permit,
[
a notice of intent
] in accordance
with the requirements of the new permit.
does not
] renew a general permit
at least 90 days before its expiration
date, dischargers authorized under the general permit shall submit an application
for an individual permit before the general permit's expiration. If an application
for an individual permit is submitted before the general permit's expiration,
authorization under the expired general permit remains in effect until the
issuance or denial of an individual permit.
[
, it will provide
such determination prior to the expiration of the general permit, and each
discharger authorized under the general permit will be provided written notice
that the discharger must apply for an individual permit.
]
A
] general permit
for consistency
[
must be consistent
] with the Texas Coastal Management Plan (CMP).
The commission must find that the general permit is
[
A proposed
general permit must be reviewed and the action of issuing a general permit
must be found to be
] consistent with the applicable CMP goals and policies
and
that it
will not adversely affect any applicable coastal natural
resource areas (CNRAs) as identified in the CMP
before the commission
may issue the general permit
.
:
] an
annual waste treatment inspection fee under Texas Water Code
(TWC)
, §26.0291
,
consistent with §§305.501 - 305.507 of this title (relating
to the Waste Treatment Inspection Fee Program); and
may be subject to
an annual watershed monitoring and assessment fee under
TWC
[
Texas Water Code
], §26.0135(h)
,
consistent with
§220.21
[
§320.21
] of this title (relating to Water
Quality Assessment Fees).
Chapter 334.
UNDERGROUND AND ABOVEGROUND STORAGE TANKS
storing hazardous substances and petroleum substances
], and
a limited regulatory program
for
petroleum product
aboveground storage tanks
(ASTs)
[
storing certain petroleum
products
], as prescribed by the Texas Water Code, Chapter 26, Subchapter
I
and Subchapter K
;
underground storage
tanks
].
underground storage tank
]
system
is
[
shall be
] subject to all or part of the applicable
regulations in this chapter only when such system:
underground
storage tank
] system under §334.2 of this title (relating to Definitions);
(relating to Definitions)
];
,
]
under §334.3(a) of this title (relating to [
Statutory
] Exemptions
for Underground Storage Tanks (USTs) and UST Systems
); and
Commission
] Exclusions
for Underground
Storage Tanks (USTs) and UST Systems
).
applicable
] requirements and
provisions in this chapter
are applicable
[
shall apply
]
to regulated
UST
[
underground storage tank
] systems
(as described in paragraph
applicable
] requirements and provisions
in this chapter [
shall
] apply equally to all owners and operators
of regulated
UST
[
underground storage tank
] systems
(as described in paragraph (1) of this subsection), including individuals,
trusts, firms, joint-stock companies, corporations, governmental corporations,
partnerships, associations (including non-profit and charity organizations),
states, municipalities, commissions, political subdivisions of a state, interstate
bodies, consortiums, joint ventures, commercial and noncommercial entities,
and the United States Government (including all of its departments), except
as otherwise provided in this chapter.
shall be
] subject to all or parts of the applicable
regulations in this chapter if they meet the general qualifications for an
UST
[
underground storage tank
] system in paragraph (1) of
this subsection:
aboveground storage
].
aboveground storage tank
]
is
[
shall be
] subject to the applicable regulations in this
chapter only when such tank;
§334.122
] of this title [
(relating
to Definitions for ASTs)
];
§334.122
] of this title
[
(relating to Definitions for ASTs)
];
in
] §334.123 of this title (relating to [
Statutory
]
Exemptions for
Aboveground Storage Tanks (ASTs)
[
ASTs
]);
and
in
] §334.124 of this title (relating to [
Commission
]
Exclusions for
Aboveground Storage Tanks (ASTs)
[
ASTs
]).
applicable
] requirements and
provisions in this chapter [
shall
] apply to regulated
ASTs
[
aboveground storage tanks
], and to the registration, installation
notification, reporting, recordkeeping, release reporting and corrective action
(including risk-based corrective action)
, fee assessment, and other
applicable requirements associated with such tanks, as more fully described
in this chapter.
aboveground storage tanks
], including individuals,
trusts, firms, joint-stock companies, corporations, governmental corporations,
partnerships, associations (including nonprofit and charity organizations),
states, municipalities, commissions, political subdivisions of a state, interstate
bodies, consortiums, joint ventures, commercial and noncommercial entities,
and the United States government (including all of its departments), except
as otherwise provided in this chapter.
aboveground
tanks
]
are
[
shall be
] subject to the applicable
regulations in this chapter if they meet the general qualifications for an
AST
[
aboveground storage tank
] in paragraph (1) of this subsection:
aboveground
storage tank
] and an
UST
[
underground storage tank
]
under this chapter, then the tank will be considered an
UST
[
underground storage tank
], and must conform with all applicable requirements
for
USTs
[
underground storage tanks
] in this chapter.
statutory
] exemption
for heating oil tanks in §334.123(a)(2) of this title [
(relating
to Statutory Exemptions for ASTs)
], an
AST
[
aboveground
storage tank
] storing a petroleum product (such as kerosene or diesel)
which is primarily used as a heating oil substitute for heating purposes on
the premises where stored, and which is secondarily used as a motor fuel for
the operation of internal combustion engines,
is
[
shall be
] exempt from the regulations of this chapter.
underground storage tanks
] and
ASTs
[
aboveground storage
tanks
].
Underground storage tanks
]
are
[
shall be
] subject to
all
the
applicable
provisions of [
the following sections in
] this chapter
, except Subchapter F of this chapter (relating to Aboveground Storage Tanks).
Underground petroleum storage tanks are also subject to all applicable provisions
of Chapter 37, Subchapter I of this title.
[
:
]
Aboveground storage tanks
]
are
[
shall be
] subject to
all
the
applicable
provisions of [
the following sections in
] this
chapter
, except
:
this section
and §334.2 of this title (relating to Definitions)
];
D
] of this chapter
(relating to
Underground Storage Tank Fees
[
Release Reporting
and Corrective Action
]);
F
] of this chapter
(relating to
UST Technical Standards
[
Aboveground Storage
Tanks
]); and
Subchapter H of this chapter (relating to Interim Reimbursement Program)
].
shall
] have the following meanings, unless the context clearly indicates
otherwise.
(2)
] Aboveground release--Any
release to the surface of the land or to surface water, including, but not
limited to, releases from the aboveground portion of an
UST
[
underground storage tank
] system and releases associated with overfills
and transfer operations during the dispensing, delivering, or removal of regulated
substances into or out of an
UST
[
underground storage tank
] system.
(4)
] ACT--
A trademark
of the former
[
The
] Association for Composite Tanks
, now a licensed trademark of the Steel Tank Institute
.
(5)
] Allowable cost--As defined
by Subchapter H, §334.308 of this title (relating to
Allowable Costs
and Restrictions on Allowable Costs
[
Interim Reimbursement Program
]).
(6)
] Ancillary equipment--Any
devices that are used to distribute, meter, or control the flow of petroleum
substances or hazardous substances into or out of an
UST
[
underground storage tank
], including, but not limited to, piping, fittings,
flanges, valves, and pumps.
(7)
] ANSI--American National
Standards Institute
, a nationally recognized organization which provides
certifications and standards for consumer products and services
.
(8)
] API--American Petroleum
Institute
, a nationally recognized organization which provides certifications
and standards for petroleum equipment and services
.
(9)
] Appropriate
regional
[
district
] office--The
agency's regional
[
commission's district
] field office which has jurisdiction for conducting
authorized
agency
[
commission
] regulatory activities
in the area where a particular UST system
or AST system
is located.
(10)
] ASTM--American Society
of Testing and Materials
, a nationally recognized organization which
provides certifications and standards for products and services
.
(11)
] Below-ground release--Any
release to the subsurface of the land or to groundwater, including, but not
limited to, releases from the below-ground portions of an
UST
[
underground storage tank
] system and releases associated with overfills
and transfer operations during the dispensing, delivering, or removal of regulated
substances into or out of an
UST
[
underground storage tank
] system.
(12)
] Beneath the surface
of the ground--Beneath the ground surface or otherwise covered with materials
so that visual inspection is precluded.
(13)
(14)
underground storage tank
] to a tank which is not regulated under
this chapter, where all regulated substances are properly removed by emptying
and cleaning, and the tank is left in the ground for the storage of materials
other than regulated substances.
commission to the owner or operator
] which states that
,
based on the information available, the
agency
[
commission
] agrees that [
the owner or operator has completed the
] corrective
action
has been completed
[
requirements
] for the referenced
release in accordance with
agency
[
commission
] requirements.
.
(20)
] Composite tank--A single-wall
or double-wall steel tank, to which
a
[
an external
]
fiberglass-reinforced plastic laminate or cladding has been factory-applied
to the external surface of the outer tank wall
.
(21)
] Consumptive use--(With
respect to heating oil) the utilization and consumption of heating oil on
the premises where stored.
(24)
] Corrosion specialist--A
person who, by reason of a thorough knowledge of the physical sciences and
the principals of engineering and mathematics acquired by a professional education
and related practical experience, is qualified to engage in the practice of
corrosion control on buried or submerged metal piping systems and metal tanks,
and who is either:
the National Association
of Corrosion Engineers
]; or
State
] Board of [
Registration for
] Professional Engineers
in a branch of engineering that includes education and experience in corrosion
control of buried or submerged metal piping systems and metal tanks.
(25)
] Corrosion technician--A
person who can demonstrate an understanding of the principals of soil resistivity,
stray current, structure-to-soil potential, and component electrical isolation
measurements as relate to corrosion protection and control on buried or submerged
metal tanks and metal piping systems; who is qualified by appropriate training
and experience to engage in the practice of inspection and testing for corrosion
protection and control on such systems, including the inspection and testing
of all common types of cathodic protection systems; and who either:
the National Association of Corrosion Engineers (NACE)
] as a corrosion
technician, corrosion technologist, or senior corrosion technologist;
; or
]
(27)
] Date installation is
complete--The date any regulated substance is initially placed in an
UST
[
underground storage tank
] or the date any petroleum
product is initially placed in an
AST
[
aboveground storage
tank
].
(28)
] Dielectric material--A
material that does not conduct direct electrical current, as related to coatings,
bushings, and other equipment and materials used with
UST
[
underground storage tank
] systems.
(29)
] Electrical equipment--Underground
equipment which contains dielectric fluid which is necessary for the operation
of equipment such as transformers and buried electrical cable.
(30)
] Emergency generator--A
standby electrical generating system powered by an internal combustion engine
(including a turbine), where such system is designed to supply temporary electrical
service only when service from the normal or primary electrical source is
disrupted. Such systems [
shall
] include, but are not necessarily
limited to, those providing emergency electrical service for hospitals, life
support systems, and other medical service facilities; telephone and electrical
utilities; heating, lighting, ventilation, security, elevator, fire control,
and other essential building operations systems; uninterruptible power systems;
essential air conditioning and refrigeration; and motors, machinery, and controls
used for other essential or critical purposes.
underground storage tank
] system and backfill material,
which is bounded by the ground surface and the walls and floor of the pit
and trenches into which the
UST
[
underground storage tank
] system is placed at the time of installation.
(34)
] Existing UST system--An
UST
[
underground storage tank
] system which is used or designed
to contain an accumulation of regulated substances for which installation
either
had
[
has
] commenced prior to December 22, 1988,
or
had
[
has
] been completed on or prior to December
22, 1988. Installation will be considered to have commenced if the owner or
operator
had
[
has
] obtained all federal, state, and
local approvals or permits necessary to begin physical construction at the
site or installation of the tank system, and if either a continuous on-site
physical construction or installation program
had
[
has
]
begun or the owner or operator
had
[
has
] entered into
contractual obligations (which
could not
[
cannot
] not
be canceled or modified without substantial loss) which
required
[
require
] that the physical construction at the site or installation
of the tank system
was
[
is
] to be completed within a
reasonable time.
(35)
] External release detection--A
method of release detection which includes equipment or procedures designed
to effectively monitor or measure for the presence of regulated substances
in the excavation zone, soil, or other media outside of a single-wall or double-wall
UST
[
underground storage tank
] system.
(36)
] Facility--The site,
tract, or other defined area where one or more
UST
[
underground
storage tank
] systems
or one or more AST systems
are located[
, and which includes all adjoining contiguous land and associated improvements
].
(38)
] Farm--A tract or tracts
of land (including all associated structures and improvements) which are principally
devoted to the raising of agricultural or other types of crops, domestic or
other types of animals, or fish for the production of food, fiber, or other
products or for other useful purposes, including fish hatcheries, rangeland,
and plant nurseries with growing operations, but not including timber-growing
land and operations dedicated primarily to recreational, aesthetic, or other
non-agricultural activities (e.g., golf courses and parks).
(39)
] Farm tank--A tank located
on a farm where the stored regulated substance is or will be utilized directly
in the farm activities.
(40)
] Field-constructed tank--A
tank which is
not factory-assembled, and which is
principally constructed,
fabricated, or assembled at the
same
facility where the tank is
subsequently
[
to be
] placed into service.
(42)
] Flow-through process
tank--A tank through which regulated substances flow in a steady, variable,
recurring, or intermittent manner during, and as an integral part of, a production
process (such as petroleum refining, chemical production, and industrial manufacturing),
but specifically
excluding
[
not including
] any tank
used for the static storage of regulated substances prior to their introduction
into the production process and any tank used for the static storage of regulated
substances which are products or by-products of the production process.
(43)
] Free-product
(or
non-aqueous phase liquid)
--A regulated substance in its free-flowing
non-aqueous liquid phase at standard conditions of temperature and pressure
(e.g., liquid not dissolved in water).
(44)
] Gathering lines--Any
pipeline, equipment, facility, or building used in the transportation of oil
or gas during oil or gas production or gathering operations.
(45)
] Hazardous substance--Any
substance defined or listed in the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), §101(14), (42 United
States Code §9601, et seq.), and which is not regulated as a hazardous
waste under the federal Solid Waste Disposal Act, Subtitle C, (42 United States
Code §6921, et seq.).
(46)
] Hazardous substance
UST system--An
UST
[
underground storage tank
] system
that contains an accumulation of either a hazardous substance, a mixture of
two or more hazardous substances, or a mixture of one or more petroleum substances
with one or more hazardous substances, and which does not meet the definition
of a petroleum UST system in this section.
(47)
] Heating oil--A petroleum
substance which is typically used in the operation of heating, boiler, or
furnace equipment and which either is one of the following seven technical
grades of fuel oil: Number 1, Number 2, Number 4-light, Number 4-heavy, Number
5-light, Number 5-heavy, and Number 6; is a residual fuel oil derivative of
the refining process (such as Navy Special and Bunker C residual fuel oils);
or is another fuel (such as kerosene or diesel) used for heating purposes
as a substitute for one of the above fuel oils or residual fuel oil derivatives.
(48)
] Hydraulic lift tank--A
tank holding hydraulic fluid for a closed-loop mechanical system that uses
compressed air and hydraulic fluid to operate lifts, elevators,
or
[
and
] other similar devices.
(49)
] Impressed current system--A
method of cathodic protection where a rectifier is used to convert alternating
current to direct current, where the current then flows in a controlled electrically
connected circuit to non-sacrificial anodes, then through the surrounding
soil or backfill to the protected metallic structure or component, and back
to the rectifier.
(50)
] In operation--The description
of an in-service
UST
[
underground storage tank
] which
is currently being used on a regular basis for its intended purpose.
(51)
] In service--The status
of an
UST
[
underground storage tank
] beginning at the
time that regulated substances are first placed into the tank and continuing
until the tank is permanently removed from service by means of either removal
from the ground, abandonment in-place, or change-in-service. An in-service
UST may or may not contain regulated substances, and may be either in operation
or out of operation at any specific time.
(52)
] Installer--A person
who participates in or supervises the installation, repair, or removal of
USTs
[
underground storage tanks
].
(53)
] Inventory control--Techniques
used to identify a loss of product that are based on volumetric measurements
in the tank and reconciliation of those measurements with product delivery
and withdrawal records.
(55)
] Lender--A state
or national bank; a
state or federal
savings bank;
a credit
union;
a state or federal savings and loan association; a state or federal
government agency that customarily provides financing; or an entity that is
registered with the Office of Consumer Credit Commissioner pursuant to Chapter
7, Title 79, Revised Statutes (Texas Civil Statutes, Article 5069-7.01, et
seq.) if the entity is regularly engaged in the business of extending credit
and if extending credit represents the majority of the entity's total business
activity.
(56)
] Liquid trap--A collection
device (such as a sump, well cellar, and other trap) which is used in association
with oil and gas production, gathering, and extraction operations (including
gas production plants) for the purpose of collecting oil, water, and other
liquids, and which either may temporarily collect liquids for subsequent disposition
or reinjection into a production or pipeline stream, or may collect and separate
liquids from a gas stream.
(57)
] Maintenance--The normal
and routine operational upkeep of
UST
[
underground storage
tank
] systems necessary for the prevention of releases of stored regulated
substances.
(58)
] Monitoring well--An
artificial excavation constructed to measure or monitor the quantity or movement
of substances, elements, chemicals, or fluids below the surface of the ground.
The term
does
[
shall
] not include any monitoring well
which is used in conjunction with the production of oil, gas, or any other
minerals.
(59)
] Motor fuel--A petroleum
substance which is typically used for the operation of internal combustion
engines (including stationary engines and engines used in
motor
[
transportation
] vehicles
, aircraft,
and marine vessels),
and which is one of the following types of fuels:
motor
[
leaded or unleaded
] gasoline, aviation gasoline, Number 1 diesel fuel,
Number 2 diesel fuel,
or
[
and any grades of
] gasohol.
(60)
] NACE--
NACE International
(formerly
National Association of Corrosion Engineers)
, a nationally
recognized organization which provides certifications and standards for corrosion
protection services
.
(63)
] New UST system--An
UST
[
underground storage tank
] system which is used or designed
to contain an accumulation of regulated substances for which installation
[
has
] commenced after December 22, 1988; or an underground storage
system which is converted from the storage of materials other than regulated
substances to the storage of regulated substances after December 22, 1988.
(64)
] NFPA--National Fire
Protection Association
, a nationally recognized organization which provides
certifications and standards for fire protection equipment and services
.
(65)
] Non-commercial purposes--(With
respect to motor fuel) all purposes except resale.
(66)
] Noncorrodible material--A
material used in the construction, maintenance, or upgrading of any component
of an
UST
[
underground storage tank
] system which is
designed to retain its physical and chemical properties without significant
deterioration or failure for the operational life of the UST system when placed
in contact with (and subjected to the resulting electrical and chemical forces
associated with) any surrounding soil, backfill, or groundwater, any connected
components constructed of dissimilar material, or the stored regulated substance.
(67)
] Observation well--A
monitoring well or other vertical tubular structure which is constructed,
installed, or placed within any portion of a UST excavation zone (including
the tank hole and piping trench), and which is designed or used for the observation
or monitoring of groundwater, or for the observation, monitoring, recovery,
or withdrawal of either released regulated substances (in liquid or vapor
phase) or groundwater contaminated by such released regulated substances.
(68)
] Occurrence--An
incident
[
accident
], including continuous or repeated exposure
to conditions, which results in a release from an
UST or AST or tank
system
[
undergroundstorage tank. This definition is intended to
assist in the understanding of the financial responsibility regulations in
Subchapter E of this chapter (relating to Financial Responsibility), and is
not intended either to limit the meaning of occurrence in a way that conflicts
with standard insurance usage or to prevent the use of other standard insurance
terms in place of occurrence)
.
(69)
] On the premises where
stored--(With respect to heating oil) refers to the consumptive use of heating
oil on the same property or site where the heating oil is stored.
(70)
] Operational life--The
actual or anticipated service life of an
UST
[
underground
storage tank
] system, which begins when regulated substances are first
placed into the tank system and which continues until the tank system is permanently
removed from service by means of either removal from the ground, abandonment
in-place, or change-in-service.
(71)
] Operator--Any person
in
day-to-day
control of,
and
[
or
] having
responsibility for[
,
] the daily operation of
the UST
[
an underground storage tank
] system
or the AST system, as
applicable
.
(72)
] Out of operation--The
description of an in-service
UST
[
underground storage tank
] which is not currently being used on a regular basis for its intended
purpose.
(73)
] Overfill--A release
that occurs when an
UST
[
underground storage tank
] system
is filled beyond its capacity, thereby resulting in a discharge of a regulated
substance to the surface or subsurface environment.
(74)
] Owner--Any person who
currently holds legal possession or ownership of a total or partial interest
in
an UST
[
the underground storage tank
] system
or an AST
. For the purposes of this chapter, where the actual ownership
of an UST system
or an AST
is either uncertain, unknown, or in
dispute, the fee simple owner of the surface estate where the UST
system
or the AST
is located shall be considered the UST system
or AST
owner, unless the owner of the surface estate can demonstrate by appropriate
documentation (deed reservation, invoice, bill of sale, etc.) or by other
legally-acceptable means that the UST system
or AST
is owned by
others.
Except as otherwise provided by the Texas Water Code, §§26.3514-26.3516,
owner
[
Owner
] does not include a person who holds an interest
in an UST system
or AST
solely for financial security purposes
unless, through foreclosure or other related actions, the holder of such security
interest has taken legal possession of the UST system
or AST
.
(75)
] PEI--Petroleum Equipment
Institute
, a nationally recognized organization which provides certifications
and standards for petroleum equipment and services
.
(76)
] Permanent removal from
service--The termination of the use and the operational life of an
UST
[
underground storage tank
] by means of either removal from
the ground, abandonment in-place, or change-in-service.
(77)
] Person--An individual,
trust, firm, joint-stock company, corporation, government corporation, partnership,
association, state, municipality, commission, political subdivision of a state,
an interstate body, a consortium, joint venture, commercial entity, or the
United States government.
(78)
] Petroleum marketing
facilities--All facilities at which a petroleum substance is produced or refined
and all facilities from which a petroleum substance is sold or transferred
to other petroleum substance marketers or to the public.
(79)
] Petroleum marketing
firms--All firms owning petroleum marketing facilities. Firms owning other
types of facilities with USTs as well as petroleum marketing facilities are
considered to be petroleum marketing firms.
(80)
] Petroleum substance--A
crude oil or any refined or unrefined fraction or derivative of crude oil
which is liquid at standard conditions of temperature and pressure
(except
for any substance regulated as a hazardous waste under the federal Solid Waste
Disposal Act, Subtitle C, (42 United States Code §6921, et seq.))
.
For the purposes of this chapter, a petroleum substance
is
[
shall be
] limited to one or a combination of the substances or mixtures
in the following list [
except for any listed substance regulated as a
hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42
United States Code §6921, et seq.)
]:
(81)
] Petroleum UST system--An
UST
[
underground storage tank
] system that contains, has
contained, or will contain a petroleum substance (as defined in this section),
a mixture of two or more petroleum substances, or a mixture of one or more
petroleum substances with very small amounts of one or more hazardous substances.
In order for
an
[
a
] UST system containing a mixture
of petroleum substances with small amounts of hazardous substances to be classified
as a petroleum UST system, the hazardous substance
must
[
shall
] be at such a dilute concentration that the overall release detectability,
effectiveness of corrective action, and toxicity of the basic petroleum substance
is not altered to any significant degree.
(82)
] Pipeline facilities
(including gathering lines)--New and existing pipeline rights-of-way, including
any equipment, facilities, or buildings therein which are used in the transportation
or associated treatment (during transportation) of gas or hazardous liquids
(which include petroleum and other liquids as designated by the Secretary
of the United States Department of Transportation), and which are regulated
under the federal Natural Gas Pipeline Safety Act of 1968 (49 United States
Code App. 1671, et seq.); the federal Hazardous Liquid Pipeline Safety Act
of 1979 (49 United States Code App. 2001, et seq.); or (for intrastate pipeline
facilities) the Texas Natural Resources Code, Chapters 111 or 117, or Texas
Civil Statutes, Articles 6053-1 and 6053-2.
(83)
] Piping--All underground
pipes
in an UST system,
including valves, elbows, joints, flanges,
flexible connectors, and other fittings attached to a tank system through
which regulated substances flow or in which regulated substances are contained
or stored.
(84)
] Piping trench--The portion
of the excavation zone at an
UST
[
underground storage tank
] facility which contains the piping system and associated backfill
materials.
(85)
] Pressurized piping--Product
or delivery piping in an
UST
[
underground storage tank
]
system which typically operates at greater than atmospheric pressure.
(86)
] Professional engineer--
A person
[
An individual
] who is
currently
[
registered and
] duly licensed by the Texas [
State
] Board
of [
Registration for
] Professional Engineers to engage in the practice
of engineering in the State of Texas.
(89)
] Qualified personnel--Persons
who possess the appropriate competence, skills, and ability (as demonstrated
by sufficient education, training, experience, and/or, when applicable, any
required certification or licensing) to perform a specific activity in a timely
and complete manner consistent with the applicable regulatory requirements
and generally accepted industry standards for such activity.
(90)
] Radioactive materials--Radioactive
substances or radioactive waste materials (e.g., high-level radioactive wastes
and low-level radioactive cooling waters) which are classified as hazardous
substances under the federal Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), §101(14), 42 United States Code §9601,
et seq., except for radioactive materials regulated as a hazardous waste under
the federal Solid Waste Disposal Act, Subtitle C, 42 United States Code §6921,
et seq.
(92)
] Regulated substance--An
element, compound, mixture, solution, or substance that, when released into
the environment, may present substantial danger to the public health, welfare,
or the environment. For the purposes of this chapter, a regulated substance
is
[
shall be
] limited to any hazardous substance (as defined
in this section), any petroleum substance (as defined in this section), any
mixture of two or more hazardous substances and/or petroleum substances, and
any other substance designated by the commission to be regulated under the
provisions of this chapter.
(94)
] Release--Any spilling
including overfills, leaking, emitting, discharging, escaping, leaching, or
disposing from an
UST or AST
[
underground storage tank
]
into groundwater, surface water, or subsurface soils.
(95)
] Release detection--The
process of determining whether a release of a regulated substance
is
occurring or
has occurred from an
UST
[
underground storage
tank
] system.
(96)
] Repair--The restoration,
renovation, or mending of a damaged or malfunctioning tank or UST system component.
(97)
] Residential tank--A
tank located on property used primarily for dwelling purposes.
(98)
] Risk-based corrective
action--Site assessment or site remediation, the timing, type, and degree
of which is determined according to case-by-case consideration of actual or
potential risk to public health from environmental exposure to a regulated
substance released from a leaking
UST
[
underground
]
or
AST
[
aboveground storage tank
].
(99)
(100)
] Secondary containment--A
containment method by which a secondary wall
, jacket,
or barrier
is installed around the primary storage vessel (e.g., tank or piping) in a
manner designed to prevent a release from migrating beyond the secondary wall
or barrier before the release can be detected. Secondary containment systems
include, but are not limited to
: double-wall tank and/or piping systems,
and
[
,
] impervious liners
, jackets, containment boots,
sumps,
or vaults surrounding a primary (single-wall) tank and/or piping
system[
, and double-wall tank and/or piping systems
].
(101)
] Septic tank--A water-tight
covered receptacle designed to receive or process, through liquid separation
or biological digestion, the sewage discharged from a building sewer.
(102)
] Spill--A release of
a regulated substance which results during the filling, placement, or transfer
of regulated substances into
an
[
a
] UST or during the
transfer or removal of regulated substances from
an
[
a
]
UST system.
(103)
] Standard conditions
of temperature and pressure--A temperature of 60 degrees Fahrenheit and an
atmospheric pressure of 14.7 pounds per square inch absolute.
(104)
] STI--Steel Tank Institute
, a nationally recognized organization which provides certifications and standards
for steel tanks
.
(105)
] Stormwater collection
system--The piping, pumps, conduits, and any other equipment necessary to
collect and transport surface water runoff resulting from precipitation to
and from retention areas and into natural or man-made drainage channels.
(107)
] Suction piping--Product
or delivery piping in an
UST
[
underground storage tank
]
system which typically operates below atmospheric pressure.
(108)
] Sump--Any man-made
pit or reservoir that meets the definition of a tank (including any connected
troughs or trenches) that serves to [
temporarily
] collect
and temporarily store
regulated substances.
(109)
] Surface impoundment--A
natural topographic depression, man-made excavation, or diked area formed
primarily of earthen materials (but possibly lined with man-made materials)
that is designed to hold an accumulation of regulated substances.
(110)
(111)
] Tank--A stationary
device (generally exclusive of any associated ancillary equipment) designed
or used to contain an accumulation of regulated substances which is constructed
of a non-earthen material (e.g., concrete, steel, or plastic) that provides
structural support.
(112)
] Tank hole--The portion
of the excavation zone at an
UST
[
underground storage tank
] facility which contains the tanks and associated backfill materials.
(113)
] Tank system--An
UST
[
underground storage tank
] system.
(114)
] Temporary removal
from service--The procedure by which
an
[
a
] UST system
may be temporarily
taken
[
kept
] out of operation without
being [
required to be
] permanently removed from service.
(115)
] Tightness test (or
tightness testing)--A procedure for testing and analyzing [
the ability
of
] a tank or piping system to
determine whether the system(s)
is capable of preventing the
[
contain the stored substance, to
prevent any
] inadvertent release of a stored substance into the environment[
, and to prevent the intrusion of groundwater into a tank or piping system
].
(117)
(118)
] UL--Underwriters Laboratories,
Inc.
, a nationally recognized organization which provides certifications
and standards for consumer products and services.
(119)
] Underground area--An
underground room, basement, cellar, shaft, or vault, which provides enough
space for physical inspection of the exterior of a tank or tank system situated
on or above the surface of the floor.
(120)
] Underground storage
tank--Any one or combination of underground tanks and any connecting underground
pipes used to contain an accumulation of regulated substances, the volume
of which, including the volume of the connecting underground pipes, is 10%
or more beneath the surface of the ground.
(121)
] Underground storage
tank system--An
UST
[
underground storage tank
], all
associated
underground
piping and
underground
ancillary
equipment, spill and overfill prevention equipment, release detection equipment,
corrosion protection system, secondary containment equipment (as applicable),
and all other related systems and equipment.
(122)
] Unsaturated zone--The
subsurface zone containing water under pressure less than that of the atmosphere
(including water held by capillary forces within the soil) and containing
air or gases generally under atmospheric pressure. This zone is bounded at
the top by the ground surface and at the bottom by the upper surface of the
zone of saturation (i.e., the water table).
(123)
] Upgrading--The addition,
improvement, retrofitting, or renovation of an existing UST system with equipment
or components as required to meet the corrosion protection, spill and overfill
prevention, and release detection requirements of this chapter.
(124)
] Used oil--Any oil
or similar petroleum substance that has been refined from crude oil, used
for its designed or intended purposes, and contaminated as a result of such
use by physical or chemical impurities; and including spent motor vehicle
and aircraft lubricating oils (e.g., car and truck engine oil, transmission
fluid, and brake fluid), spent industrial oils (e.g., compressor, turbine,
bearing, hydraulic, metalworking, gear, electrical, and refrigerator oils),
and spent industrial process oils.
(125)
] UST--An underground
storage tank (as defined in this section).
(126)
] UST system--An underground
storage tank system (as defined in this section).
(127)
] Vent lines--All pipes
including valves, elbows, joints, flanges, flexible connectors, and other
fittings attached to a tank system, which are intended to convey the vapors
emitted from a regulated substance stored in an
UST
[
underground
storage tank
] to the atmosphere.
(128)
] Wastewater collection
system--The piping, pumps, conduits, and any other equipment necessary to
collect and transport domestic, commercial, or industrial wastewater to and
from any facilities or areas where treatment of such wastewater is designated
to occur.
(129)
] Wastewater treatment
tank--A tank that is designed to receive and treat an influent wastewater
through physical, chemical, or biological methods.
Statutory ] Exemptions for Underground Storage Tanks (USTs) and UST Systems .
, as provided under the Texas Water
Code, §26.344
]:
shall
] remain subject to the release reporting and corrective
action requirements under the
TWC
[
Texas Water Code
], §26.351,
and Subchapter D of this chapter (relating to Release Reporting and Corrective
Action).
Commission ] Exclusions for Underground Storage Tanks (USTs) and UST Systems .
Statutory
] Exemptions
for Underground Storage Tanks (USTs) and UST Systems
), the following
USTs
[
underground storage tanks
]
are completely excluded from regulation under this chapter [
by commission
directive
]:
underground storage tank
]
system containing a hazardous listed waste or identified under the federal
Solid Waste Disposal Act, Subtitle C, (42 United States Code §6921, et
seq.), or containing a mixture of such hazardous waste and other regulated
substances, where such system is already subject to regulation under the federal
Solid Waste Disposal Act, Subtitle C;
however,
] that such tanks
must
[
shall
] be inspected for a release no less than once every month;
underground storage tank
]
systems which
during their entire operational life have exclusively contained
only
[
contain
] regulated substances at such dilute concentrations
that any release would not pose any significant threat to human health and
safety or the environment.
underground storage tanks
] are subject to all provisions of this chapter,
except for Subchapter C of this chapter (relating to Technical Standards),
Chapter 37,
Subchapter
I
[
E
] of this
title
[
chapter
] (relating to Financial
Assurance for Petroleum
Underground Storage Tank Systems
[
Responsibility
]), and the
certification requirements of §334.8 of this title (relating to Certification
for Underground Storage Tanks (USTs) and UST Systems
):
underground storage tank
] system that contains radioactive substances, where such system is
regulated by the federal Nuclear Regulatory Commission (or its successor)
under the provisions of the Atomic Energy Act of 1954 (42 United States Code §2011,
et seq.);
underground storage tank
] system that contains fuel used solely to power an emergency electrical
generator system at a nuclear power generation system facility regulated by
the federal Nuclear Regulation Commission (or its successor) under the provisions
of the
Title 10
Code of Federal Regulations, [
Title 10,
]
Part 50, Appendix A.
(relating
to Statutory Exemptions)
], all other in-ground hydraulic lifts that
use a compressed air/hydraulic fluid system and which hold 100 gallons or
more of hydraulic oil are similarly excluded from regulation under this chapter,
except that such lifts [
shall
] remain subject to the release reporting
and corrective action requirements under Subchapter D of this chapter (relating
to Release Reporting and Corrective Action).
shall
] install or have installed
an underground storage tank
(UST)
system for the purpose of storing
or otherwise containing regulated substances unless such
UST
[
underground storage tank
] system, whether of single-wall or double-wall
construction, meets the following standards.
underground storage tank
]
system
must
[
shall
] prevent releases due to corrosion
or structural failure for the operational life of the
UST
[
underground storage tank
] system.
underground
storage tank
] system
must
[
shall
] be either cathodically
protected against corrosion, constructed of noncorrodible material, constructed
of a steel material which has been clad with a noncorrodible material, or
must
[
shall
] be otherwise designed and constructed in a manner
that
prevents
[
shall prevent
] the release or threatened
release of any stored substances.
underground storage tank
] system
must
[
shall
] be constructed of or lined
with a material that is compatible with the stored substance.
Except
as provided under paragraph (2) of this subsection, on or after January 1,
1990, no person shall deposit or have deposited any regulated substance into
an underground storage tank system unless such system is registered with the
commission under §334.7 of this title (relating to Registration). Prior
to the deposit of any regulated substance into an underground storage tank,
the owner or operator shall provide evidence of registration as necessary
to meet the provisions of this paragraph.
]
The prohibited delivery of regulated substances shall not
be applicable to deliveries into a new or replacement UST system occurring
within 30 days of the first deposit of regulated substances.
]
underground storage tank
] from the
ground, or to conduct a permanent abandonment in-place of an
UST
[
underground storage tank
]
must
[
shall
] comply
with the notification requirements of this section prior to initiating such
activity.
the
effective date of this subchapter
], any person who intends to perform
any construction activity listed in subsection (b)(1) of this section
must
[
shall
] comply with the notification requirements of
this section prior to initiating such activity.
underground storage tank
] system that is located or will
be located in the designated recharge zone or transition zone of the Edwards
Aquifer
must
[
shall
] also secure the requisite approval
from the
agency
[
executive director
] prior to conducting
certain regulated
UST
[
underground storage tank
] activities,
as prescribed under Chapter
213
[
313
] of this title
(relating to Edwards Aquifer).
underground storage tank
] construction activity performed or completed pursuant to a notification
submitted under the provisions of this section
must
[
shall
] meet the applicable technical standards and procedural requirements
under Subchapter C of this chapter (relating to Technical Standards).
underground storage tank
] construction activity is necessitated by a
suspected or confirmed release of regulated substances, or where the activity
contributes to or causes such a release, the owner or operator
must
[
shall
] comply with the release reporting, investigation, and corrective
action requirements of Subchapter D of this chapter (relating to Release Reporting
and Corrective Action).
commission's
] central
office in Austin or to the
agency's
[
commission's
] appropriate
regional
[
district
] office in the area of the activity, unless
otherwise specified in this section. The official date of notification
must
[
shall
] be the date on which the notification is first
received in
an agency
[
a commission
] office.
shall
] be provided by the owner or operator,
or
an authorized agent or representative of the owner or operator
(e.g., a contractor or consultant who has contracted for such construction
activity)
[
, or the contractor or consultant retained for such construction
activity
]. Construction notifications filed by unauthorized persons
are
[
shall be
] null and void.
underground storage tank
] construction activity
includes
[
shall include
] any of the following:
shall
] not [
be
] applicable to routine and minor maintenance
activities related to the tank and piping systems, such as tightening loose
fittings and joints, adjusting and calibrating equipment, conducting routine
inspections and tests, and the substitution or in-kind replacement of any
obsolete or malfunctioning UST system component for any purpose other than
required upgrading.
person
] who intends to perform a major
UST
[
underground storage
tank
] construction activity as described in paragraph (1) of this subsection
must
[
shall
] file a written notification with the
agency
[
executive director
] at least 30 days prior to initiating
the activity.
commission's
] authorized form, as described in paragraph
(6) of this subsection.
executive
director
], any person who intends to perform a major
UST
[
underground storage tank
] construction activity
must
[
shall
] also submit additional supporting information to assure
that the construction activity is in compliance with the requirements of this
chapter. Supporting information which may be requested by the
agency
[
executive director
] includes, but
is
[
shall
] not [
be
] limited to, the following items:
shall
] contact the
agency's
[
commission's
]
appropriate
regional
[
district
] office in the area of
the activity to confirm the time of the initiation of the proposed activity.
Any revisions to the proposed construction start date
must
[
shall
] be in accordance with paragraph (3) of this subsection.
shall
] immediately
report the revised construction information to the commission's appropriate
regional
[
district
] office in the area of the activity.
shall
] comply with the requirements of
paragraph (4) of this subsection.
commission's
] appropriate
regional
[
district
] office is notified, and provided that original written notifications
are properly renewed upon expiration in accordance with paragraph (5) of this
subsection.
shall be
] required prior to
the initiation of any major
UST
[
underground storage tank
] construction activity. However, if after the submittal of the construction
notification, the owner
or operator
has good cause for an accelerated
construction schedule, then the owner
or operator
may request approval
of an earlier construction start date. Such request
must
[
shall
] be made directly to the
agency's
[
commission's
] appropriate
regional
[
district
] office in the
area of the activity. The
regional director
[
district manager
] (or the
director's
[
manager's
] designated representative)
has
[
shall have
] the authority to approve or deny such requests,
and such decision
will
[
shall
] be based on the following
criteria:
commission
]
personnel to arrange and schedule an adequate inspection of the activity.
underground storage tank
] construction
activity
is
[
shall be
] valid for only 180 days after
the original notification date or 150 days after the originally anticipated
construction start date, whichever is earlier. If the proposed construction
has not commenced within this period, the original notification
will
[
shall
] expire. If the owner
or operator
still
plans to perform the construction after the expiration of this period, a new
and updated construction notification form
must
[
shall
]
be filed.
underground storage tank
] construction activity (as described
in paragraph (1) of this subsection)
must
[
shall
] provide
all the applicable construction notification information indicated on the
agency's
[
commission's
] authorized construction notification
form.
shall
] be filled out [
as
] completely and accurately [
as possible
]. Upon completion, the form
must
[
shall
] be dated and signed by the owner
, the operator,
or the
authorized representative of the owner or operator
[
owner's designated
representative
], and
must
[
shall
] be timely filed
in accordance with subsection (a)(5) of this section.
underground storage tank
] construction activities involving situations described under paragraph
(2) of this subsection, the owner
or operator
may comply with the
following alternative notification and reporting procedures in lieu of the
normal notification requirements of subsection (b) of this section.
shall
]
provide verbal or written notification to the
agency
[
commission
] as soon as possible prior to initiating the construction activity.
Such notification
must
[
shall
] be submitted directly
to the
agency's
[
commission's
] appropriate
regional
[
district
] office in the area of the activity.
district manager
] (or the
regional director's
[
manager's
] designated representative). The owner
or operator must
[
shall
] maintain detailed records of the
construction. No later than 30 days after completion of the construction,
the owner
or operator must
[
shall
] submit to the
agency
[
commission
] a detailed report describing the activity.
If the
agency
[
commission
] determines that the information
in such report is insufficient to assure compliance with the applicable requirements
of this chapter, then the owner
or operator
may be required to
submit additional information to demonstrate such compliance.
underground storage tank
] can demonstrate that a release or suspected
release of a regulated substance has occurred or is likely to occur as a result
of the operation of the
UST
[
underground storage tank
],
when such release is considered an immediate threat to human health or safety
or the environment, and when the owner
or operator
can demonstrate
that the expeditious initiation and completion of the proposed construction
activity is necessary to prevent or abate such release;
underground
storage tank
] system is discovered during unrelated construction activities
(e.g., the construction of building excavations, streets, highways, utilities,
etc.), when the property owner can reasonably demonstrate no prior knowledge
of the existence of the tank, when the expeditious removal or abandonment
in-place of the tank is considered necessary or advisable for the completion
of the unrelated construction activity, and where any delays in completion
of the tank removal or abandonment in-place would cause unreasonable financial
hardship due to contract schedules and completion times;
underground storage tank
] system which poses
an immediate threat to human health, safety, or the environment;
executive
director
] determines that compliance with the notification provisions
of subsection (b) of this section would be unreasonable or impractical, or
could increase the threat to human health or safety or the environment.
shall
] be registered
with the
agency
[
commission
] on authorized
agency
[
commission
] forms
in accordance with subsection (e)
of this section
, except for those tanks which:
Statutory
]
Exemptions
for Underground Storage Tanks (USTs) and UST Systems
);
Commission
]
Exclusions
for Underground Storage Tanks (USTs) and UST Systems
);
commission
] prior to the effective date of this subchapter under the
provisions of the federal Solid Waste Disposal Act, §9002 (42 United
States Code §6921, et seq.), provided that the owner
or operator
must submit
[
has submitted
] notice of all changes and additional
information in accordance with the provisions of subsection (d) of this section;
underground storage tank
]
are
[
shall
be
] responsible for compliance with the tank registration requirements
of this section. An owner
or operator
may designate an authorized
representative to complete and submit the required registration information.
However, the owner
and operator remain
[
shall be held
]
responsible for compliance with the provisions of this section by such representatives.
underground storage tanks
] subject to the registration requirements of this section
are
[
shall
] also [
be
] subject to the fee provisions
of Subchapter B of this chapter (relating to Underground Storage Tank Fees),
except where specifically exempted in this chapter. The failure by a tank
owner
or operator
to properly
or timely
register any
tanks
does
[
shall
] not exempt the owner from such fee
assessment and payment provisions.
underground storage tank
] that was in existence on September 1, 1987,
must
[
shall
] register such tank with the
agency
[
commission
] not later than September 1, 1987, on an authorized
agency
[
commission
] form, except for those tanks exempted
and excluded under subsection (a)(1)(A)-(D) of this section.
Upon the
effective date of this subsection, the obligation becomes joint and several
with the tank operator as well.
underground storage tank
] that is placed
into service on or after September 1, 1987, must register the tank with the
agency
[
executive director
] on an authorized
agency
[
commission
] form within 30 days after the date any regulated
substance is placed into the tank, except for those tanks exempted or excluded
under subsection (a)(1)(A)-(D) of this section.
Upon the effective date
of this subsection, the obligation becomes joint and several with the tank
operator as well.
underground storage tank
] system
must
[
shall
]
provide written notice to the
agency
[
executive director
]
of any changes or additional information concerning such system. Types of
changes or additional information subject to this requirement
must
[
shall
] include, but
are
[
shall
] not [
necessarily be
] limited to, the following:
ownership
], or change in
owner or operator
[
ownership
]
information (e.g.,
authorized representative,
mailing address
,
and/or telephone number)
, provided that:
[
;
]
each
] tank system (e.g., in service, temporarily out of service, removed
from the ground, [
or
] permanently abandoned in-place
, change-in-service
to provide for the storage of a substance other than a regulated substance,
or change to exempt or excluded status
);
, or change-in-service to provide for the storage of a substance other than
a regulated substance
];
responsibility
] information related to the facility
as specified in Chapter 37,
Subchapter I of this title (relating to Financial Assurance for Petroleum
Underground Storage Tank Systems)
.
shall
] be submitted on an authorized
agency
[
commission registration
] form which has been completed in accordance
with subsection (e) of this section. The
agency's UST
[
commission's
underground storage tank
] facility number for the facility
must
[
shall
] be included in the appropriate space on the [
registration
] form.
shall
] be filed with the
agency
[
executive
director
] within 30 days from the date of the occurrence of the change
or addition, or within 30 days from the date on which the owner or operator
first became aware of the change or addition, as applicable.
Registration form
].
tank
] owner
or operator
required to submit
UST
[
tank
] registration information
under subsections (a)-(d) of this section
must
[
shall
]
provide all the information indicated on the
agency's
[
commission's
] authorized [
registration
] form for each regulated
UST
[
tank owned
].
The UST registration information must
be provided on the appropriate agency form, as specified in paragraph (6)
of this subsection.
tank
] registration
portion of the
form
must
[
shall
] be filled out
[
as
] completely and accurately [
as possible
]. Upon completion,
the form
must
[
shall
] be dated and signed by the owner
, or the operator,
or
an
authorized
[
the
owner's designated
] representative
of the owner or operator
,
and
must
[
shall
] be filed with the
agency
[
executive director
] within the specified time frames.
tank
] owners
or operators
required to submit
UST
[
tank
] registration
information under subsections (a)-(d) of this section
must
[
shall
] provide the registration information for all
USTs
[
tanks
] located at a particular facility on the same [
registration
] form.
Tank
] owners
or operators
who own
or operate USTs
[
tanks
] located at more
than one facility
must
[
shall
] complete and file a separate
[
registration
] form for each facility
where regulated USTs
are located
.
shall
] be conspicuously indicated on each document
and all such documents
must
[
should
] be attached to
and filed with the [
registration
] form.
tank
] registration information submitted to the
agency
[
commission
] is determined to be inaccurate, unclear,
illegible, incomplete, or otherwise inadequate, the
agency
[
executive director
] may require the owner
and/or operator
to submit additional information. An owner
or operator must
[
shall
] submit any such required additional information within 30 days
of receipt of such request.
Installation
] certifications. The following
UST construction
activity
[
installation
] certifications are required.
(2)
] Certification by
installer
or on-site supervisor. After September 29, 1989
[
: After the effective date of this subchapter
], any installer who is
employed or otherwise engaged by an
UST
[
underground storage
tank
] owner or operator to install or replace an
UST
[
underground storage tank
] system
must
[
shall
]
also certify by signature that the installation methods are in compliance
with §334.46 of this title (related to Installation Standards for New
UST Systems). [
The tank owner or operator shall be responsible for assuring
that the installer has provided the certification required in this paragraph.
]
(3)
] Filing requirements. The
installation or
construction
[
replacement
] certification
information required under
paragraph
[
paragraphs
] (1)
[
and (2)]
of this subsection
must
[
shall
]
be included in the appropriate sections of the
agency's
[
commission's
] authorized
UST
[
tank
] registration
form
or UST registration and self-certification form, as applicable,
in accordance with §334.7(e) of this title (relating to Registration
for Underground Storage Tanks (USTs) and UST Systems)
, and
must
[
shall
] be filed with the
agency
[
commission
] in accordance with the applicable tank registration time limits prescribed
under §334.7 of this title [
(relating to Registration)
].
responsibility
]
certification
for USTs storing a petroleum substance Owners and operators
of UST systems regulated under this section must comply with the requirements
of subsection (c) of this section
.
shall
] provide the purchaser (or grantee) with written
notification of a tank owner's obligations relative to the
agency's
[
commission's
] tank registration
, compliance self-certification,
and construction notification provisions under §334.7 of this
title (relating to Registration
for Underground Storage Tanks (USTs)
and UST Systems); §334.8 of this title (relating to Certification for
Underground Storage Tanks (USTs) and UST Systems);
[
)
] and §334.6
of this title (relating to Construction Notification
for Underground
Storage Tanks (USTs) and UST Systems
).
shall
]
include the names and addresses of the seller (or grantor) and the purchaser
(or grantee), the number of tanks involved, a description of each tank (capacity,
tank material, and product stored, if applicable), and the
agency's
[
commission's
] designated facility identification number (if the
entire facility is being conveyed).
shall apply
] to any transfers or conveyances of a new or used tank from
one person to another person, and [
shall
] also
applies
[
apply
] to the sales of real property where
USTs
[
underground storage tanks
] are located.
shall
] be provided by the seller (or grantor) to the purchaser (or grantee)
prior to the conveyance of the tanks, or prior to the time of the real property
closing, as applicable.
Water
] Commission
and may be subject to certain registration
, compliance self-certification,
and construction notification requirements found in
Title 30
[
31
] Texas Administrative Code, Chapter 334."
UST
] systems
must
[
shall
]
assure that all reporting and filing requirements in this chapter are met,
including the following (as applicable):
(relating to Construction Notification)
] and Chapter
213
[
313
] of this title (relating to Edwards Aquifer);
installations and
] financial
assurance
[
responsibility
],
and compliance self-certification
in accordance with §334.8
of this title (relating to Certification
for Underground Storage Tanks
(USTs) and UST Systems
);
(d)(2)
] of this title (relating to Temporary Removal from Service);
characterization
] report, in accordance with §334.78(b) of this title (relating
to [
Initial
] Site
Assessment
[
Characterization
]);
free product
] removal report, in accordance with §334.79(d) of this title (relating
to [
Free Product
] Removal
of Non-Aqueous Phase Liquids
);
(relating to Corrective Action Plan)
];
(relating to Corrective
Action Plan)
]; and
responsibility
] requirements,
in accordance
with Chapter 37, Subchapter I of this title (relating to Financial Assurance
for Petroleum Underground Storage Tank Systems; and
[
including:
]
executive director or commission
] to demonstrate
compliance with the provisions of this chapter.
shall be
] responsible for developing and maintaining all records required
by the provisions of this chapter.
a
] UST system
must
[
shall
] be maintained
in a secure location on the premises of the UST facility,
must
[
shall
] be immediately accessible for reference and use by the
UST system operator, and
must
[
shall
] be immediately
available for inspection upon request by
agency
[
commission
] personnel.
In
] the event that copies of the required records cannot
reasonably be maintained on the premises of the UST facility, then such records
may be maintained at a readily accessible alternate site, provided that the
following conditions are met.
shall
] be readily accessible for reference and use by the
UST system operator.
shall
] be readily
accessible and available for inspection upon request by
agency
[
commission
] personnel.
shall
]
provide the following information (in writing) to the
agency's central
office
[
executive director
] and to the
agency's
[
commission's
] appropriate
regional
[
district
]
office:
shall
] be accomplished
no later than
October 29, 1989
[
30 days after the effective
date of this chapter
], 30 days after
an
[
a
] UST
installation or replacement has been completed, or 30 days after the UST records
are moved to an alternate site, whichever is later or applicable
, as
provided in §334.7(d) of this title
.
executive director
] in lieu of maintaining the records
on the premises or at an alternative site, provided that the following conditions
are met:
shall
]
provide written justification adequate to explain why such records cannot
be maintained on the premises of the UST facility or at a readily accessible
alternative site; and
shall
] be submitted
at one time in one package for each UST facility, and the records
must
[
shall
] be appropriately labeled with the UST facility location
information and the UST facility identification number.
shall
] assure that all
recordkeeping requirements in this chapter are met, including the following
records and documentation (as applicable).
shall
] be maintained for the operational life of the UST
system:
(relating to Registration)
];
responsibility
], in accordance
with §334.8 of this title [
(relating to Certification)
];
shall
]
be maintained in accordance with the following provisions:
executive director's
] approval letter for any variances or alternative
procedures, in accordance with §334.43 of this title [
(relating
to Variances and Alternative Procedures)
];
(relating to Temporary
Removal from Service)
];
(relating to Permanent
Removal from Service)
].
shall
] be maintained in accordance with the applicable
provisions of
Chapter 37, Subchapter I
[
§334.105
]
of this title [
(relating to Financial Assurance Recordkeeping)
].
shall
] not relieve
such owner or operator from the responsibility of compliance with any other
regulations directly and/or indirectly affecting such tanks and the stored
regulated substances, including, but not necessarily limited to, all applicable
regulations legally promulgated by the United States Environmental Protection
Agency, United States Occupational Safety and Health Administration, United
States Department of Transportation, United States Nuclear Regulatory Commission,
United States Department of Energy, Texas Department of Health, State Board
of Insurance, Texas Commission on Fire Protection, Railroad Commission of
Texas, Texas Department of Agriculture, State Comptroller, Texas Department
of Public Safety, Texas Natural Resource Conservation Commission, and any
other federal, state, and local governmental agencies or entities having appropriate
jurisdiction.
underground storage tanks
] under this chapter.
Operator
Responsibility
].
Except as otherwise provided in paragraphs (2), (3)
and (4) of this subsection, the owners and operators of underground storage
tank systems and aboveground storage tank systems subject to the provisions
of this chapter shall be responsible for ensuring compliance with all applicable
provisions of this chapter.
] Owners and operators are responsible for
any violations or noncompliant activities resulting from the actions or inactions
by any installer, contractor, operator, or other person who is employed or
otherwise engaged by an owner or operator of an
UST
[
underground
storage tank
] or
AST
[
aboveground storage tank to be
principally in charge of any activities or procedures required under this
chapter
].
(2)
]
The liability
of certain taxing units as owners or operators of USTs and ASTs is conditionally
and specifically limited, in accordance with the provisions and conditions
of TWC, §26.3516 (relating to Limits on Liability of Taxing Units).
[
Unless otherwise specified under Texas Water Code, §26.3513, on
and after September 1, 1995, when the owner of a petroleum storage tank system
can reasonably demonstrate to the satisfaction of the commission that such
owner is not in day-to-day control of such system, the commission shall consider
the person who is in day-to-day control of such system at a site that is in
violation of this chapter to be the:
]
(A)
(B)
(3)
] The liability of
certain lenders as owners or operators of
USTs
[
underground
storage tanks
] and
ASTs
[
aboveground storage tanks
]
is conditionally and specifically limited, in accordance with the provisions
and conditions of
TWC, §26.3514 (relating to Limits on Liability
of Lender)
[
§334.15 of this title (relating to Limits on Liability
of Lender)
].
(4)
] The liability of certain
corporate fiduciaries as owners or operators of
USTs
[
underground
storage tanks
] and
ASTs
[
aboveground storage tanks
]
is conditionally and specifically limited, in accordance with the provisions
and conditions of
TWC, §26.3515 (related to Limits on Liability
of Corporate Fiduciary)
[
§334.16 of this title (relating to
Limits on Liability of Corporate Fiduciary)
].
Monitoring, and Testing
].
underground storage tank
]
or
AST
[
aboveground storage tank
], on the request of
the
agency
[
commission or the executive director
],
must
[
shall
]:
commission
] at all reasonable times to have access to and
to copy all records relating to the tanks.
commission, its
] designated
agent, or employee may:
underground storage tank
] or
AST
[
aboveground storage tank
] is located;
commission
]
may order an owner or operator of an
UST
[
underground storage
tank
] or
AST
[
aboveground storage tank
] to conduct
monitoring and testing if the
agency
[
commission
] determines
that there is reasonable cause to believe that a release has occurred in the
area in which the
UST
[
underground storage tank
] or
AST
[
aboveground storage tank
] is located.
underground
] or
AST
[
aboveground storage tank
] is located;
or
underground
] or
AST
[
aboveground storage tank
] is located; or
underground
] or
ASTs
[
aboveground storage
tanks
] on the property. A tank is
permanently
removed from
service when the actions defined in §334.55(b) of this title (relating
to Permanent Removal from Service) have been properly completed;
aboveground
] or
UST
[
underground storage tank
] before sale or other disposition
of the storage tank or the property if the lender:
aboveground
] or
UST
[
underground storage tank
] or real or personal property described by subsection (a) of this section
before foreclosure or its equivalent on the storage tank or the property;
and
aboveground
] or
UST
[
underground storage tank
], or the facility or property
on which the tank is located, with a broker, dealer, or agent who deals in
that type of property; or
aboveground
]
or
UST
[
underground storage tank
] for sale or other
disposition, at least monthly, in:
aboveground
] or
UST
[
underground storage
tank
] being advertised; or
aboveground
] or
UST
[
underground
storage tank
] is located.
aboveground
] or
UST
[
underground storage tank
]
or the facility or property on which the storage tank is located, it is presumed
that the lender is not holding the ownership indicia primarily to protect
the security interest unless the lender is required, in order to avoid liability
under federal or state law, to make the higher bid, obtain the higher offer,
or seek or obtain an offer in a different manner.
shall
] act under the direction of the executive director.
Subchapter B. UNDERGROUND STORAGE TANK FEES
executive director
] sends a statement
of the assessment to the tank owner. Annual facility fees must be paid by
check, certified check, or money order made payable to the "Texas Natural
Resource Conservation Commission." Payments must be mailed to the address
specified in the billing statement.
executive director
] shall
establish a schedule for billing of annual facility fees. The amount of the
fee to be paid, regardless of the actual billing date, shall be based on the
number of regulated
USTs
[
underground storage tanks
]
in place on or after the first day of each fiscal year (September 1).
underground storage tanks
]. In any fiscal year in which fee revenues are used to match federal
funds for remediation of a leaking
UST
[
underground storage
tank
], the
agency
[
commission
] shall determine
the prorated contribution of each federal
UST
[
underground
storage tank (UST)
] facility to the leaking
UST
[
underground
storage tank
] trust fund in that year. The assessment of annual UST
facility tank fees in the following year shall be adjusted by crediting the
account of each federal facility for the excess amount paid in the previous
year.
underground storage tank
] which is owned, operated,
or maintained by a common carrier railroad, as provided in the Texas Water
Code, §26.344(g).
executive director
] shall
impose interest and penalties on owners who fail to make payment of the annual
facility fees imposed under this subchapter when due in accordance with Chapter
12 of this title (relating to Payment of Fees).
executive director
] shall deposit
any annual facility fees collected, together with all interest and penalties
collected for late payment, in the state treasury to the credit of the storage
tank fund.
Subchapter C. TECHNICAL STANDARDS
underground storage tank
]
systems:
underground storage tank
] system which is covered under the partial exclusion provisions of §334.4(b)
of this title (relating to [
Commission
] Exclusions
for Underground
Storage Tanks (USTs) and UST Systems
).
underground storage tank
]
which is specifically excluded or exempted from the provisions of this subchapter
under
§334.41(b) of this title (relating to Applicability)
[
subsection (b) of this section
], but which is otherwise subject
to any of the remaining provisions of this chapter, shall conform with the
minimum design and operation requirements of §334.5(a) of this title
(relating to General Prohibitions
for Underground Storage Tanks (USTs)
and UST systems
).
underground storage tank
] system (or new UST system) shall
refer to any system for which installation has commenced on or after
September 29,1989
[
the effective date of this subchapter
].
for as
long as the underground storage tank system is used to store regulated substances
].
underground storage tank
] system subject to the provisions of
this subchapter which
contain, have contained, or will contain
[
are used to contain or store
] a regulated substance, the surfaces
of such components which are in direct contact with the regulated substance
shall be constructed of or lined with materials that are compatible with the
substance stored in such components. Any compatibility determination or analysis
shall be in accordance with a code or standard of practice developed by a
nationally recognized association or independent testing laboratory.
§334.11
and
] §334.12(b) of this title (relating to [
Enforcement and
] Other General Provisions[
, respectively
])
and under
the provisions of Chapter 70 of this title (relating to Enforcement)
.
underground storage tank
] activity shall be applicable.
underground storage
tank
] system from compliance with other applicable regulations legally
developed by other governmental entities. This requirement is more fully discussed
in §334.12(a) of this title [
(relating to Other General Provisions)
].
or alternative procedure is
] approved by the
agency
[
executive director
] in accordance with §334.43 of this title (relating
to Variances and Alternative Procedures), the requirements of this subchapter
shall take precedence if and when such requirements are determined to be in
conflict with any provisions contained in the following:
underground storage
tank
] equipment.
underground
storage tank
] system installed on or after September 29, 1989, shall
be properly protected from corrosion by one or more of the allowable methods
in §334.49(b) of this title (relating to Corrosion Protection).
initiating
]
any
manner
[
activity or procedure
]
that differs
from
[
which is at variance with or which is not specifically authorized
under
]
the requirements of
this subchapter, the owner or
operator of an underground storage tank
(UST)
system shall secure
written agency
[
commission
] approval
in
[
of
] the
form of a
variance [
or alternative procedure
] in accordance with this section.
executive director
] shall
have authority to review and approve requests for variances [
and alternative
procedures as relate to
]
from the requirements in
[
the provisions of
] this subchapter. The
agency
[
executive
director
]
will
[
shall
] approve such requests only
if the owner or operator can [
reasonably
] demonstrate
to appropriate
agency staff
that the proposed [
variance or
] alternative
procedure
and/or equipment
will result in an
UST
[
underground storage tank
] system that is no less protective of human
health and safety and the environment than
the requirement(s) for which
[
a system meeting
] the
variance is sought
[
requirements of this subchapter
].
approval
of
] a variance [
or alternate procedure
] when one or more
of the following situations is applicable:
the requirements of
] this subchapter is considered [
either
]
not practicable [
or not reasonable
] due to the type, design, capacity,
material stored, or use of the
UST
[
underground storage tank
] system [
(e.g. bulk storage tanks, field- constructed tanks, and
airport hydrant fuel distribution systems)
]; or
underground
storage tank
] systems are not specifically authorized by the provisions
of this subchapter.
executive director
] for approval of a variance [
or alternative procedure
] shall
be made in writing, shall be signed and dated by the owner or operator, and
shall be accompanied by the following additional documentation:
representatives
]
[
(i.e., operator, contractor, or consultant)
]; and
variance or
] alternative procedure
and/or equipment
;
planning
materials
] to describe or illustrate the [
variance or
] alternative
procedure
and/or equipment
, such as:
sufficient
] documentation and supporting
data
which demonstrates,
to
the satisfaction of agency staff,
[
justify
] the reliability
and appropriateness
of the [
variance or
] proposed procedure
and/or equipment
,
such as:
variance or
] proposed procedure
and/or equipment are
[
is
] considered preferable to the
requirement for which the
variance is sought
[
methods or procedures specified in this subchapter
], or why
that requirement is
[
the methods or procedures
specified in this subchapter are
] considered [
unreasonable or
]
impracticable; and
adequate
] documentation
that demonstrates,
to the satisfaction of agency staff,
[
to reasonably demonstrate
] that
use of
the proposed [
variance or
] alternative
procedure
and/or equipment
will
be
[
result in an
underground storage tank system that is
] no less protective of human
health and safety and the environment than
adhering to
[
a
system meeting
] the
requirement(s) for which the variance is sought
[
requirements of this subchapter
].
Owners and operators
] shall maintain complete
copies
[
records
] of
the variance and supporting documentation
(including the request for approval)
[
any requests for approval
of any variances or alternative procedures, and documentation of the executive
director's approval of such requests, for the operational life of the UST
system
], in accordance with §334.10(b) of this title (relating
to Reporting and Recordkeeping).
UST
] systems.
are used to store
] any regulated
substances shall be in compliance with the following requirements from the
time of installation through the operational life of the system.
(relating to Technical Standards for New UST Systems)
] and §334.46(f)
of this title [
(relating to Installation Standards for New UST Systems)
].
(relating to Release Detection)
].
are used to store
] any regulated substances shall
meet the applicable requirements of §334.47 of this title (relating to
Technical Standards for Existing UST Systems) in accordance with the following
schedule.
(relating to Technical Standards
for Existing UST Systems)
].
(relating to Spill and Overfill Prevention)
].
(relating to Release Detection)
].
(relating to Release Detection)
] no later than the
date on which release detection is required for the tank to which such piping
is connected, as prescribed in subparagraph (D) of this paragraph.
(relating to Release Detection)
] no later than the date specified
in the following subclauses for the time of installation applicable to such
tanks:
(relating to Technical Standards for New UST Systems)
] and of §334.46(f) of this title [
(relating to Installation
Standards for New UST Systems)
].
(relating to Release Detection)
].
UST
] system installed on or after the effective date of this subchapter
shall be in compliance with the provisions of this section during the entire
operational life of the UST system.
(E)
] of this paragraph, and in
accordance with specific codes and standards of practice developed by nationally
recognized associations and independent testing laboratories, as referenced
in the following subparagraphs:
one or more of the following standards:
]
(relating to Corrosion Protection)
], and shall
meet the following standards:
(relating to Corrosion Protection)
], and shall meet
the following standards:
, "Control of External Corrosion on Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems
]."
.
]
.
]
applicable
] requirements of §334.49 of this title
[
(relating to Corrosion Protection)
]
;
[
.
]
ACT Specification
] ACT-100, "
Specification for External Corrosion Protection of
FRP Composite Steel
[
Fabrication of FRP Clad/Composite
] Underground
Storage Tanks"; or
standard applicable to composite underground storage tanks.
]
(E)
] The tank may be designed, constructed,
and protected from corrosion by an alternate method which has been reviewed
and determined by the
agency
[
executive director
] to
control corrosion and prevent the release or threatened release of any stored
regulated substance in a manner that is no less protective of human health
and safety and the environment than the methods described in subparagraphs
(A)-(D) of this paragraph, in accordance with the procedures in §334.43
of this title (relating to Variances and Alternative Procedures).
(relating to Corrosion
Protection)
].
underground storage tank
] system shall be properly designed, constructed,
and protected from corrosion in accordance with one of the methods listed
in subparagraphs (A)-
(D)
[
(C)
] of this paragraph and
in accordance with specific codes and standards of practice developed by nationally
recognized associations and independent testing laboratories, as referenced
in the following subparagraphs.
UL Listed Non-Metal Pipe
]"; and
Flammable and Combustible
] and LP Gas."
(relating to Corrosion Protection)
], and shall meet
the applicable provisions of the following standards:
(C)
] The piping may be designed,
constructed, and protected from corrosion by an alternate method which has
been reviewed and determined by the
agency
[
executive director
] to prevent the release of any stored regulated substance in a manner
that is no less protective of human health and the environment than the methods
described in subparagraphs (A) and (B) of this paragraph. Any alternative
methods must be submitted and approved in accordance with the procedures in §334.43
of this title [
(relating to Variances and Alternative Procedures)
].
(relating to Release Detection)
].
approved
] equivalent
listing by Underwriters'
Laboratories of Canada (ULC)
) emergency shutoff valve (also called a
shear or impact valve) shall be installed in each pressurized delivery or
product line and shall be securely anchored at the base of the dispenser.
This shut-off valve shall include a fusible link, and shall be designed to
provide a positive shut-off of product flow in the event that a fire, collision,
or other emergency occurs at the dispenser end of the pressurized line.
approved
] equivalent
listing by Underwriter's Laboratories of Canada (ULC),
or Factory Mutual Research Corporation (FMRC)
) flexible connectors shall
be installed at both ends of each pressurized product or delivery line to
provide flexibility and to allow for vertical and horizontal movement in the
piping
, unless inherently flexible piping is installed in accordance
with manufacturer's requirements and in accordance with an applicable code
or standard of practice developed by a nationally recognized association or
independent testing laboratory
. The use of metal swing joints in a pressurized
UST
[
underground storage tank
] piping system is specifically
prohibited.
a cathodic protection
system
] meeting the applicable requirements in §334.49[
(c)
] of this title [
(relating to Corrosion Protection)
].
313
] of this
title (relating to Edwards Aquifer).
commission or the executive
director
] may specifically require the installation of a secondary containment
system meeting the requirements of this subsection at other times when necessary
for the protection of human health or safety or the environment.
(relating
to Corrosion Protection)
].
and ASTM Standard D 4021, "Standard Specification for
Glass-Fiber-Reinforced Polyester Underground Petroleum Storage Tanks";
]
naturally
] recognized association or independent
testing laboratory that has been reviewed and determined by the
agency
[
executive director
] to be no less protective of human health
and safety, and the environment than the standards described in subclauses
(I) and (II) of this clause, in accordance with procedures in §334.43
of this title [
(relating to Variances and Alternative Procedures)
].
(relating
to Installation Standards for New UST Systems)
].
underground storage tank
] system. The criteria for evaluation
of the liner for compliance with this clause shall be in accordance with accepted
industry practices for materials testing. Types of liners which may be used
include certain reinforced and unreinforced flexible-membrane liners, rigid
fiberglass-reinforced plastic liners, and reinforced concrete vaults.
(relating to Corrosion Protection)
].
(relating to Installation Standards
for New UST Systems)
].
(relating to Corrosion Protection)
].
(relating
to Installation Standards for New UST Systems)
].
(relating to Corrosion Protection)
], and shall be installed in
accordance with a code or standard of practice developed by a nationally recognized
association or independent testing laboratory.
(relating to
Corrosion Protection)
];
(relating
to Spill and Overfill Prevention and Control)
]; and
(relating to Release Detection)
].
(relating to Installation Standards for New UST Systems)
].
(relating to Installation Standards for New UST Systems)
]. All records
shall be maintained in accordance with §334.10(b) of this title (relating
to Reporting and Recordkeeping).
UST ] Systems.
UST
] system installed on or after the
effective date of this subchapter shall be installed in compliance with the
provisions of this section.
executive director
] to
be no less protective of human health and safety and the environment than
the standards described in subparagraphs (A)-(C) of this paragraph, in accordance
with the procedures in §334.43 of this title (relating to Variances and
Alternative Procedures).
executive director
] in accordance with §334.43
of this title [
(relating to Variances and Alternative Procedures)
],
all
USTs
[
underground storage tanks
] located in areas
subject to high water tables or flooding shall be protected from any floatation
or movement which could jeopardize the integrity of the
UST
[
underground storage tank
] system.
underground storage tank
] system components.
Where such crossing is unavoidable, adequate clearance shall be provided to
prevent contact.
underground storage tank
] system into operation.
(C)
] For steel tanks and other
underground
UST system components which are equipped with factory-installed
or field-installed cathodic corrosion protection systems, the cathodic protection
systems shall be tested for operability and adequacy of protection by a qualified
corrosion technician or qualified corrosion specialist after the UST system
installation is completed but prior to placing the system into operation.
(relating to Corrosion
Protection)
].
underground storage tank
] system shall be in accordance
with the applicable requirements of §334.49(c)(2) of this title [
(relating to Corrosion Protection)
].
underground storage tank
]
systems which are equipped with cathodic protection equipment, the liner shall
be installed so as not to jeopardize or inhibit the proper operation of such
cathodic protection equipment.
a
] UST system on or after the effective date of this
subchapter shall be constructed and installed in accordance with the requirements
of this paragraph.
(relating to Technical Standards for New UST Systems)
], the determination of the appropriate number and the appropriate diameters
of monitoring wells or observation wells shall be based on the planned purpose
of such well and on the specific procedures, methods, and equipment to be
utilized in achieving such purpose.
(relating to Release Detection)
], the specific number and
positioning of the monitoring wells and/or observation wells shall be based
on the results of an assessment of the underground areas within and immediately
surrounding the UST system excavation zone to assure compliance with the specific
criteria and requirements for the applicable release detection method. Such
assessment shall be performed by qualified personnel who are familiar with
the characteristics of the stored regulated substance and the groundwater,
soil, and geologic conditions at the site.
underground storage tank
] system shall be constructed or installed in
accordance with the applicable requirements of
16 TAC, Chapter 76
[
Chapter 287 of this title
] (relating to Water Well Drillers)
, and Texas Water Code (TWC), Chapter 32 (relating to Water Well Drillers).
[
and the Water Well Drillers Act (Texas Civil Statutes, Article
7621e, Water Auxiliary Laws), and
]
Any
[
any
] person
constructing or installing a monitoring well shall be appropriately licensed
as required therein.
underground storage tank
]
system.
Chapter 287
of this title (relating to Water Well Drillers) and the Water Well Drillers
Act (Texas Civil Statutes, Article 7621e, Water Auxiliary Laws), and
]
Any
[
any
] person constructing or installing such well shall
be appropriately licensed as required therein.
Chapter
287 of this title (relating to Water Well Drillers)
]. If the observation
well is not regulated as a monitoring well by the Water Well Drillers Board,
the licensing requirements for persons constructing or installing such well
shall not be applicable.
underground
storage tank
] systems installed on or after the effective date of this
subchapter shall ensure that the installation was completed in accordance
with the provisions of this section, and that the following certification
criteria applicable to the installation are met.
executive director
] to prevent releases
in a manner that is no less protective of human health and the environment
than the methods described in clauses (i)-(iii) of this subparagraph. Any
alternative methods must be submitted and approved in accordance with the
procedures in §334.43 of this title [
(relating to Variances and
Alternative Procedures)
].
commission
].
owner and the
] installer of the
UST system shall complete the installation certification section of the
agency's
[
commission's
] authorized [
tank registration
] form, and shall certify by signature that the installation methods
are in compliance with the provisions of this section, as required by §334.8(a)
of this title (relating to Certification
for Underground Storage Tanks
(USTs) and UST Systems
).
commission
] or others, including:
(relating to Certification)
];
UST
] systems. No later than the implementation dates
specified in §334.44(b) of this title (relating to Implementation Schedules),
all applicable components of any existing UST system (i.e., UST system for
which installation has commenced or has been completed on or prior to December
22, 1988) shall be either installed, upgraded, improved, or replaced with
equipment or components which meet or exceed either of the following requirements:
underground storage tank
] systems in §334.45
of this title (relating to Technical Standards for New UST Systems) and in §334.46
of this title (relating to Installation Standards for New UST Systems); or
(9)
] of this title (relating to Release Detection).
Such release detection system(s) shall have been in operation for at least
60 days prior to the date of the cathodic protection system installation,
and at least one of the systems shall remain in operation for the remaining
operational life of the tank.
(relating to Release Detection)
]. The first tightness test
shall be conducted prior to installing the cathodic protection system, and
the second test shall be conducted between three and six months after the
cathodic protection system is placed into operation.
For tanks constructed
of non-corrodible material, or metal tanks clad or jacketed with noncorrodible
material which are electrically isolated from surrounding soil, backfill or
groundwater, the tank may be tested by conducting at least one tightness test
meeting the requirements of §334.50(d)(1)(A) of this title, within the
12 month period prior to December 22, 1998.
(relating to Permanent Removal from
Service)
].
executive director
] to prevent releases in a manner
that is no less protective of human health and the environment than the methods
described in clauses (i)-(iv) of this subparagraph, in accordance with the
provisions of §334.43 of this title (relating to Variances and Alternative
Procedures).
(relating to UST System Repairs and Relining)
], as necessary to
restore the structural integrity of the tank; or
(relating
to Permanent Removal from Service)
].
underground storage tank
] system,
which are not isolated from the surrounding soil, backfill, and groundwater,
and which either do or could convey, contain, or store regulated substances,
shall be equipped with a field-installed cathodic protection system meeting
the requirements of §334.49(c)(2) of this title (relating to Corrosion
Protection).
underground
storage tanks
] shall be equipped with appropriate spill and overfill
prevention equipment, in accordance with the provisions in §334.51(b)
of this title (relating to Spill and Overfill Prevention and Control).
(relating to Release Detection)
].
(relating
to Release Detection)
] no later than the date on which release detection
is required for the tank to which such piping is connected, as prescribed
in paragraph (4) of this subsection.
(relating to Release Detection)
] no later than the date specified
in the following clauses for the time of installation applicable to such tanks:
(relating to Release Detection)
], then all
such tanks shall be brought into compliance with the applicable release detection
requirements of this paragraph no later than the date specified for the oldest
tank in such common tank hole.
(relating to Technical Standards for New UST Systems)
] and §334.46(f) of this title [
(relating to Installation
Standards for New UST Systems)
].
(relating to Release
Detection)
].
commission
] or others, including:
UST
] systems shall ensure
that the systems are operated, maintained, and managed in a manner that will
prevent releases of regulated substances from such systems.
a code or standard of practice developed by a nationally
recognized association or independent testing laboratory
]. Complete
and accurate inventory records shall be maintained in accordance with §334.10
of this title (relating to Reporting and Recordkeeping).
underground
storage tank
] systems shall ensure that all release detection equipment
installed as part of a UST system pursuant to §334.50 of this title [
(relating to Release Detection)
] is maintained in good operating condition.
The owner or operator shall also assure that such equipment is routinely inspected
and serviced in accordance with the manufacturer's specifications and in a
manner that will assure the proper performance, operability, and running condition
of the equipment. Where periodic testing and/or monitoring activities are
required as part of a specific release detection method under §334.50
of this title [
(relating to Release Detection)
], such tests and/or
monitoring activities shall be performed at the prescribed times and/or frequencies.
(relating to Reporting and Recordkeeping)
].
for as long as the underground storage tanks system is used to store regulated
substances
].
underground storage tank
] system
[
for as long as the components are used to store regulated substances
].
executive director
]
pursuant to procedures for variances found in §334.43 of this title (relating
to Variances and Alternative Procedures).
a
] UST system which are designed or used to convey,
contain, or store regulated substances, including, but not [
necessarily
] limited to, the tanks, piping (including valves, fittings, flexible
connectors, swing joints, and impact/shear valves),
and also to other
underground metal components associated with an UST system, including but
not limited to; s
econdary containment devices, manways, manholes, fill
pipes, vent lines, submersible pump housings, spill containers, and riser
pipes.
the effective date of this subchapter
] shall be fitted
with a striker plate under all fill, gauge, and monitoring openings.
a
] UST system which are designed to convey, contain,
or store regulated substances shall be protected from corrosion by one or
more of the following methods.
(relating to Technical
Standards for New Underground Storage Tank Systems)
].
underground storage tank
] component shall be designed,
fabricated, installed, operated, and maintained in accordance with applicable
codes or standards of practice developed for such cathodic protection method
by a nationally recognized association or independent testing laboratory.
underground
storage tank
] system which is protected from corrosion by one of the
electrical isolation methods described in subsection (b)(2) and (3) of this
section, and which is not equipped with a cathodic protection system, shall
be periodically inspected and tested to ensure that the metal component remains
electrically isolated from the surrounding soil, backfill, groundwater, and
other metal components in accordance with one or more of the following procedures.
executive director
] to ascertain electrical isolation and to prevent
the release or threatened release of any stored regulated substance in a manner
that is no less protective of human health and safety and the environment
than the methods described in clauses (i) and (ii) of this subparagraph, in
accordance with the procedures in §334.43 of this title [
(relating
to Variances and Alternative Procedures)
].
or
] a steel tank with a bonded fiberglass-reinforced
plastic external cladding or laminate,
a steel tank with a bonded fiberglass
reinforced polyurethane coating, or a steel tank with a bonded polyurethane
coating
is also equipped with a factory-installed cathodic protection
system, then the normal inspection and testing requirements for cathodic protection
systems in subsection (c)(4) of this section may be waived. This paragraph
shall be applicable only to tanks meeting the design and construction requirements
in §334.45(b)(1)(D)
or §334.45(b)(1)(E)
of this title,
as applicable,
[
(relating to Technical Standards for New Underground
Storage Tank Systems)
], and when such tanks are fitted with factory-installed
cathodic protection
systems
[
system
] meeting the requirements
of subsection (c)(1) of this section.
(relating
to Installation Standards for New UST Systems)
], shall be maintained
for as long as the corrosion protection system is used, including:
underground storage tank
] system which contains regulated
substances including the tanks, piping, and other
underground
ancillary
equipment;
and
] maintained
, utilized and interpreted (as applicable)
in accordance with the manufacturer's
and/or methodology provider's
specifications and instructions
consistent with the other requirements of this section
, and by personnel
possessing the necessary experience, training, and competence to accomplish
such requirements; and
installer
],
as verified by third party
evaluation conducted by a qualified independent testing organization, using
applicable United States Environmental Protection Agency protocol,
provided
that the following additional requirements shall also be met.
and
]
.
]
(relating to Implementation
Schedules)
].
a
] UST system shall be listed, approved,
designed, and operated in accordance with standards developed by a nationally
recognized association or independent testing laboratory (e.g., UL) for such
installation or use
, as specified in §334.42(d) of this title (relating
to General Standards)
.
for
]
release
[
releases
] at a frequency
of at least once every month (not to exceed 35 days between each monitoring)
by using one or more of the release detection methods described in subsection
(d)(4)-
(10)
[
(9)
] of this section).
(relating to Implementation Schedules)
], but has not
yet been either:
a
] UST system meeting
the applicable technical and installation standards in §334.45 of this
title (relating to Technical Standards for New UST Systems) and §334.46
of this title (relating to Installation Standards for New UST Systems); or
(relating to Technical Standards for Existing UST Systems)
].
a
] UST system which
has been either:
(relating to Technical
Standards for New UST Systems)
] and §334.46 of this title [
(relating to Installation Standards for New UST Systems)
]; or
(relating to Technical Standards for Existing UST Systems)
].
550
] gallons or less. The monthly tank gauging
method of release detection, as prescribed in subsection (d)(3) of this section,
may be used as the sole release detection system only for emergency generator
tanks.
underground storage tank
] system shall be monitored
in a manner
which will
[
designed to
] detect a release
from any portion of the piping system, [
and
] in accordance with
the following requirements.
Underground storage tank
] system piping that conveys regulated substances
under pressure shall be in compliance with the following requirements.
which equals or exceeds
] three gallons per hour when the piping pressure is at
ten
[
10
] pounds per square inch.
, or by emitting or triggering
audible and visible alarms
].
which equals or exceeds a rate
]
of 0.1 gallons per hour when the piping pressure is at 150% of normal operating
pressure.
(9)
] of this section.
a
] UST piping system that
conveys regulated substances either under suction or by gravity flow shall
meet at least one of the following requirements.
piping
] tightness test
applicable to underground product piping and
conducted in accordance with a code or standard of practice developed by a
nationally recognized association or independent testing laboratory. Any such
piping test shall be capable of detecting any release from the piping system
[
which equals or exceeds a rate
] of 0.1
gallons
[
gallon
] per hour [
when the piping pressure is at 150% of normal
operating pressure
].
(9)
] of this section.
.
]
.
]
.
]
.
]
.
]
A method is incorporated into the system design that
will allow
]
Verification
[
verification
] that the
requirements under subclauses (I)-(IV) of this clause have been met
can be provided in the form of:
[
.
]
(relating to Technical Standards for New UST Systems)
] and §334.46(f) of this title [
(relating to Installation
Standards for New UST Systems)
].
(9)
] of this section,
which shall be capable of monitoring the space between the primary tank and
piping walls and the secondary containment wall or barrier.
a
] UST system may be monitored for releases using one
or more of the methods included in paragraphs
(2)-(10)
[
(1)-(9)
] of this subsection. Piping in
an
[
a
] UST system
may be monitored for releases using one or more of the methods included in
paragraphs (5)-
(10)
[
(9)
] of this subsection. Any method
of release detection for tanks and/or piping in this section shall be allowable
only when installed (or applied), operated, calibrated, and maintained in
accordance with the particular requirements specified for such method in this
subsection.
which equals or exceeds a rate
] of 0.1
gallons
[
gallon
] per hour from any portion of the tank which contains
regulated substances.
which equals or exceeds
]
the sum of 1.0% of the total substance flow-through for the month plus 130
gallons.
550
]
gallons or less.
(B)
(C)
] The use of manual tank gauging
shall not be considered an acceptable method for meeting the release detection
requirements of this section for any tanks with a nominal capacity greater
than
1,000
[
2,000
] gallons.
(D)
] When used for compliance with
the release detection requirements of this section, the procedures and requirements
in the following clauses shall be applicable.
of at least 36
hours
] during which no substance is added to or removed from the tank.
The duration of the gauging period is dependant upon tank volume and diameter,
as specified in clause (v) of this subsection.
13
]
gallons; monthly standard =
four
[
seven
] gallons;
1,001 gallons to 2,000 gallons: weekly standard = 26 gallons; monthly
standard = 13 gallons
].
(relating to Release
Reporting and Corrective Action)
].
(relating to Release Reporting and Corrective Action)
].
which equals or exceeds a rate
] of 0.2 gallon
per hour from any portion of the tank which contains regulated substances.
which equals or exceeds a rate
] of 0.2 gallon
per hour from any portion of the tank which contains regulated substances.
(relating to Installation Standards for New UST Systems)
].
(D)
] Prior to installation of any
groundwater monitoring equipment, the site of the UST system (within and immediately
below the excavation zone) shall be assessed by qualified personnel to:
(E)
] All monitoring wells and observation
wells shall be designed, installed, and maintained in accordance with the
requirements in §334.46(g) of this title [
(relating to Installation
Standards for New Underground Storage Tank Systems)
].
underground
storage tank
] system may be used, subject to the following conditions
and requirements.
(relating to Technical Standards for New UST Systems)
] and §334.46(f) of this title [
(relating to Installation
Standards for New UST Systems)
].
a
] UST system using this method of release detection
shall be designed, constructed, and installed in accordance with the applicable
technical and installation requirements in §334.45(d) of this title [
(relating to Technical Standards for New UST Systems)
] and §334.46(f)
of this title [
(relating to Installation Standards for New UST Systems)
].
(relating
to Installation Standards for New UST Systems)
].
(9)
] Alternative
release detection method. Any other release detection method, or combination
of methods, may be used if such method has been reviewed and determined by
the
agency
[
executive director
] to be capable of detecting
a release from any portion of the UST system in a manner that is no less protective
of human health and safety and the environment than the methods described
in paragraphs (1)-(8) of this subsection, in accordance with the provisions
of §334.43 of this title [
(relating to Variances and Alternative
Procedures)
].
(relating
to Installation Standards for New UST Systems)
], shall be maintained
for as long as the release detection system is used.
or installer,
] shall be maintained for as long as the release detection
system is used.
underground storage tanks
] are equipped with ball float valves in the vent openings (or with
other similar flow restrictors) for the purposes of compliance with the overfill
prevention equipment requirements of subsection (b)(2)(C) of this section,
and when regulated substances are transferred into such tanks under pressure
(other than routine gravity unloading from normal transport vehicles), the
following requirements shall be met during the time that regulated substances
are being transferred into the tank.
underground storage tank
] system,
are in accordance with codes or standards of practice developed by a nationally
recognized association or independent testing laboratory
as specified
in §334.42(d) of this title (relating to General Standards)
.
underground
storage tank
] systems shall be equipped with spill and overfill prevention
equipment which shall be designed, installed, and maintained in a manner that
will prevent any spilling or overfilling of regulated substances resulting
from transfers to such systems, as provided in this subsection.
underground storage tank
] system do not exceed 25 gallons
per occurrence;
underground storage tank
]
system is equipped with alternative equipment which has been reviewed and
determined by the
agency
[
executive director
] to prevent
spills and overfills of regulated substances in a manner that is no less protective
of human health and the environment than the equipment prescribed in this
subsection, pursuant to procedures for variances found in §334.43 of
this title (relating to Variances and Alternative Procedures); or
executive director
] to be impracticable
[
or unreasonable
] due to the type, design, or use of the
UST
[
underground storage tank
] system, pursuant to procedures
for variances found in §334.43 of this title [
(relating to Variances
and Alternative Procedures)
].
underground storage tank
] system, the owner or operator
shall obtain detailed written records of the repairs or relining from the
person who performed the work.
underground storage tank
] shall not relieve the owner
or operator from timely compliance with the technical standards for such tanks,
as required in §334.47 of this title (relating to Technical Standards
for Existing UST Systems).
(relating to
Technical Standards for Existing UST Systems)
]; or
executive director
] to
be no less protective of human health and safety and the environment than
the standards described in subparagraphs (A) and (B) of this paragraph, in
accordance with the procedures in §334.43 of this title (relating to
Variances and Alternative Procedures).
underground storage
tank
] system is specifically prohibited, regardless of the source or
previous use of such previously used components.
(relating to Release Detection)
].
(relating to Corrosion
Protection)
]. The remaining portion of the piping system shall be brought
into compliance with the minimum upgrading requirements for existing UST systems
in accordance with the procedures and schedules in §334.47 of this title
[
(relating to Technical Standards for Existing UST Systems)
].
commission
].
A UST
] system shall be considered to be temporarily out of service,
regardless of whether or not regulated substances remain in the UST system,
when the following conditions apply.
Beginning no later than the date
on which any UST system has been out of service for a continuous period of
three months,
]
Regardless
[
regardless
] of whether
or not regulated substances remain in the UST system, the owner or operator
shall assure that the UST system is maintained in compliance with the following
requirements for the balance of time that the UST system remains temporarily
out of service.
(e)
] of this section)
at the time it is temporarily removed from service, the UST system shall be
monitored for releases in accordance with the applicable requirements of §334.50
of this title (relating to Release Detection).
The UST system shall be operated and maintained in accordance with the requirements
of subsection (b) of this section.
]
(e)
] Empty system. For the purposes
of this section only, and specifically for the purpose of exempting certain
UST systems (when temporarily out of service) from the release detection requirements
of this chapter, an
UST
[
underground storage tank
] system
shall be considered empty when the following provisions have been met:
(f)
] Other requirements.
underground
storage tank
] system which is temporarily out of service shall comply
with all release reporting, investigation, and corrective action requirements
in Subchapter D of this chapter (relating to Release Reporting and Corrective
Action).
underground storage tank
] system is temporarily taken out of service
and at the time
an
[
a
] UST system is brought back into
service, the owner shall comply with the applicable tank registration requirements
in §334.7 of this title (related to Registration
for Underground
Storage Tanks (USTs) and UST Systems
).
underground storage
tank
] which is temporarily out of service in accordance with this section
shall remain subject to the
agency's
[
commission's
]
UST
[
underground storage tank
] fees in Subchapter B of this
chapter (relating to Underground Storage Tank Fees).
executive director
] in accordance with §334.6
of this title (relating to Construction Notification
for Underground
Storage Tanks (USTs) and UST Systems
).
underground storage tank
] from service shall conform
with accepted industry practices, and shall be in accordance with a code or
standard of practice developed by a nationally recognized association or independent
testing laboratory.
underground storage tanks
] that are intended for permanent removal from service shall be emptied
of all regulated substances and accumulated sludges or residues, and shall
be purged of all residual vapors in accordance with accepted industry procedures
commonly employed for the stored regulated substance.
underground storage
tank
] system, and any contaminated soils, backfill material, groundwater,
wash water, or other similar materials removed from the system or facility,
shall be conducted in a safe and environmentally sound manner, and shall be
in accordance with all applicable federal, state, and local regulations in
effect for the type, volume, contaminant concentration, and classification
of the removed material.
underground storage tank
] system
from service, the owner or operator shall determine whether or not any prior
release of a stored regulated substance has occurred from the system.
executive director
] as prescribed in §334.6 of this title (relating to Construction
Notification
for Underground Storage Tanks (USTs) and UST Systems
),
but prior to completion of the permanent removal from service.
operating
] in accordance with §334.50(d)(5)-
10)
[
(9)
] of this title (relating to Release Detection); or
underground storage tank
]
system.
executive director
] and comply with all applicable
release investigation and corrective action requirements, as prescribed in
Subchapter D of this chapter (relating to Release Reporting and Corrective
Action);
commission
] in conjunction
with the applicable tank registration requirements of §334.7 of this
title (relating to Registration
for Underground Storage Tanks (USTs)
and UST Systems
).
underground
storage tank
] to be considered permanently out of service, the owner
or operator shall either remove the tank from the ground in accordance with
subsection (b) of this section, abandon in-place and fill the tank with an
acceptable solid inert material in accordance with subsection (c) of this
section, or conduct a permanent change-in-service in accordance with subsection
(d) of this section. Unused tanks (i.e., tanks at facilities which are closed
or out of business) shall be considered temporarily out of service, and shall
be subject to the provisions of §334.54 of this title (relating to Temporary
Removal from Service), unless they have been permanently removed from service
in accordance with this section.
underground storage tanks
] which are permanently
removed from service on or after the effective date of this subchapter.
underground storage tank
] permanently removed from service prior to the effective date of this
subchapter, where the methods previously used for the release determination
or the removal from service are unknown or are determined to have been inadequate,
the
agency
[
executive director
] may require the owner
or operator to conduct any or all of the following additional activities as
appropriate:
(relating to Release Reporting and Corrective Action)
]; and/or
underground storage tanks
]
from the ground.
commission
] personnel and/or local fire officials, and all conditions
and requirements imposed by such supervisory officials shall be strictly followed.
10
] days after the tank has been removed from the ground,
any residual liquids or vapors shall be permanently removed to render the
tank nonignitable and nonexplosive.
underground storage tanks
] (and parts of such tanks) shall be protective of human health and
safety and the environment, and shall be in accordance with all applicable
federal, state, and local regulations.
underground
storage tank
] may be permanently removed from service by abandonment
in-place in lieu of actual removal from the ground. In addition to the requirements
of subsection (a) of this section, the following requirements shall be applicable
to the abandonment in-place of
USTs
[
underground storage tanks
].
underground storage tank
] owner is not the owner of the site or facility where such tank is
located, the tank owner is prohibited from abandoning such tank in-place unless
the following conditions are met.
executive director
] in accordance with §334.43
of this title (relating to Variances and Alternative Procedures).
underground storage tank
] is located,
the facility owner shall provide written documentation of the tank abandonment
information to the succeeding property owner.
a
] UST system storing regulated
substances is converted to a system storing materials other than regulated
substances.
underground storage tank
] shall
be properly emptied, cleaned, and purged of vapors in accordance with a code
or standard of practice developed by a nationally recognized association or
independent testing laboratory for the stored regulated substance. The procedures
for emptying, cleaning, and purging the
UST
[
underground storage
tank
] shall be designed to remove as much as possible of the previously
stored regulated substances, including all liquids, vapors, sludges, and residues,
in a manner that is protective of human health and safety or the environment.
underground storage tank
] storing regulated substances is to be converted
for the storage of either drinking water or food products intended for human
consumption is specifically prohibited.
underground storage tank
],
the date of the change-in-service, the regulated substance previously stored,
the method of conditioning the tank for the change-in-service, the names,
addresses, and telephone numbers of the persons conducting the activities,
and any information regarding any known releases of regulated substances from
such tank. If the facility owner is not the same person as the UST owner,
the UST owner shall provide a copy of such information to the facility owner
within 30 days after the date of the change-in-service.
underground storage tank
] which has been converted to the storage
of materials other than regulated substances (i.e., water) shall be subject
to the procedures for temporary removal from service in §334.54 of this
title (relating to Temporary Removal from Service), except when the stored
materials are utilized on a regular basis for beneficial purposes.
comprehensive
] site assessment meeting the
requirements of this subsection shall be performed by the owner or operator
of
an
[
a
] UST system in the following situations to
determine whether or not a release has occurred:
underground storage tank
]
which is permanently removed from service on or after the effective date of
this subchapter;
(C)
] when the
agency
[
executive director
] determines that a [
comprehensive
]
site assessment is necessary at a site or facility where an
UST
[
underground storage tank
] was permanently removed from service
prior to the effective date of this subchapter, and where the site assessment
or release determination at the time of removal from service was determined
to be either nonexistent or inadequate; or
(D)
] when the
agency
[
executive director or the commission
] determines that a [
comprehensive
] site assessment is necessary at any site or facility
where a release or suspected release may pose a current or potential threat
to human health or safety or the environment.
underground storage tank
] system from service;
executive director
] to detect prior releases of the stored regulated
substance(s) in a manner that is no less protective of human health and the
environment than the methods described in subparagraphs (A) and (B) of this
paragraph, as provided under §334.43 of this title [
(relating to
Variances and Alternative Procedures)
].
underground storage tank
] remains
in service at the facility, or for five years after the UST system is permanently
removed from service, whichever is longer:
a
] UST system (as applicable), in accordance with the requirements
in subsection (c)(4) of this section; and
a
] UST system (as applicable), in accordance with the requirement
in subsection (d)(4) of this section.
Subchapter D. RELEASE REPORTING AND CORRECTIVE ACTION
underground
storage tanks
] and all petroleum product
ASTs
[
aboveground
storage tanks
], except that Chapter 350 of this title (relating to Texas
Risk Reduction Program) shall be used in lieu of §§334.78-334.81
of this title (relating to Site Assessment,
Removal of Non-Aqueous Phase
Liquids
[
Free Product Removal
], Investigation for Soil and
Groundwater Cleanup, and Corrective Action Plans, respectively).
district
]
office
)
[
or the Austin central office
] the
agency
[
commission
] within 24 hours, and follow the procedures
in §334.74 of this title (relating to Release Investigation and Confirmation
Steps) for any of the following conditions
:
[
.
]
free product
] or vapors
in soils, basements, sewer and utility lines, and nearby surface water)
;
[
.
]
and
] operators (such as the erratic behavior of product
dispensing equipment, the sudden loss of product from the
AST or UST
[
underground storage tank
] system, or an unexplained presence
of water in the tank), unless the system equipment is found to be defective
but not leaking
;
[
.
]
.
]
(relating to Release Detection)
], whenever monitoring
or observation indicates a breach in either the primary wall or secondary
barrier (whether or not a release of regulated substance into the environment
has occurred), unless the primary or secondary barrier is determined to be
intact, and the monitoring equipment is found to be defective, and is immediately
repaired, recalibrated, or replaced, and additional monitoring does not confirm
the initial result.
executive director
],
owners and operators of
aboveground storage tank (AST) or underground
storage tank (UST)
[
UST
] systems must follow the procedures
in §334.74 of this title (relating to Release Investigation and Confirmation
Steps) to determine if the
AST or
UST system is the source of off-site
impacts. These impacts include the discovery of regulated substances (such
as the presence of
Non-Aqueous Phase Liquids (NAPLs)
[
free
product
] or vapors in soils, basements, sewer and utility lines, and
nearby surface and drinking waters) that have been observed by
agency
staff
[
the commission
] or brought to
the agency's
[
its
] attention by another party.
Initial Site Characterization
];
Removal of Non-Aqueous Phase Liquids
[
Free Product
Removal
]; Investigation for Soil and Groundwater Cleanup; and Corrective
Action Plan), owners
or
[
and
] operators must immediately
investigate and confirm all suspected releases of regulated substances requiring
reporting under §334.72 of this title (relating to Reporting of Suspected
Releases) within 30 days, using either the following steps or another procedure
and schedule approved or required by the
agency
[
executive
director
].
, or upgrade
] the
aboveground storage tank (AST) or underground
storage tank (UST)
[
UST
] system, and begin corrective action
in accordance with §§334.76-334.81 of this title [
(relating
to Initial Response to Releases; Initial Abatement Measures and Site Check;
Initial Site Characterization; Free Product Removal; Investigation for Soil
and Groundwater Cleanup; and Corrective Action Plan)
] if the test results
for the system, tank, or delivery piping indicate that a leak exists.
of
] groundwater, and
other factors appropriate for identifying the presence and source of the release.
for the excavation zone
],
or other area(s) of the AST
or
the UST site indicate that a release has occurred, owners and operators must
begin corrective action in accordance with §§334.76-334.81 of this
title [
(relating to Initial Response to Releases; Initial Abatement Measures
and Site Check; Initial Site Characterization; Free Product Removal; Investigation
for Soil and Groundwater Cleanup; and Corrective Action Plan)
];
for the excavation zone
]
, or other area(s) of the AST
or
[
the
] UST site do not indicate that a release has occurred, further
investigation is not required.
executive director
] not later than 45 days after the first observation of the suspected
release or another schedule approved or required by the
agency
[
executive director
]. The owner or operator shall include with
this report a statement which has been signed by the owner or operator certifying
that the requirements of this section have been met.
UST
] systems must
contain and immediately clean up a spill or overfill, report
the spill
or overfill
to the
agency
[
commission
] within
24 hours, and begin corrective action in accordance with §§334.76-334.81
of this title (relating to Initial Response to Releases; Initial Abatement
Measures and Site Check;
Site Assessment
[
Initial Site Characterization
];
Removal of Non-Aqueous Phase Liquids
[
Free Product
Removal
]; Investigation for Soil and Groundwater Cleanup; and Corrective
Action Plan) in the following cases:
of UST systems
] must contain
and immediately clean up a spill or overfill of any petroleum
substance
from an UST or any petroleum product from an AST
that is less than 25
gallons
.
[
, and
]
Owners or operators of USTs must
contain and immediately clean up
a spill or overfill of a hazardous
substance that is less than the reportable quantity under CERCLA (40 CFR Part
302). If cleanup cannot be accomplished within 24 hours, owners and operators
must immediately notify the
agency
[
executive director
].
UST
] system is identified in any other manner,
owners and operators must perform the following initial response actions within
24 hours of a release:
executive
director
] (e.g., by
completed
telephone
call, facsimile
transmission,
or electronic mail);
executive director
], owners and operators must perform the following
abatement measures:
UST
] system as is necessary to prevent further release to the environment;
free product
] and begin
NAPL
[
free product
] removal as soon as practicable and in
accordance with §334.79 of this title (relating to
Removal of Non-
Aqueous Phase Liquids
[
Free Product Removal
]).
executive director
]
summarizing the initial abatement steps taken under subsection (a) of this
section and any resulting information or data unless another reporting period
is specified by the
agency
[
executive director
].
executive director
], owners and operators must assemble information
about the site and the nature of the release, including information gained
while confirming the release or completing the initial abatement measure in §334.75
and §334.76 of this title (relating to Reporting and Cleanup of Surface
Spills and Overfills; and Initial Response to Releases). This information
must include, but is not necessarily limited to the following:
free product
] investigations required under §334.77
of this title [
(relating to Initial Abatement Measures and Site Check)
], to be used by owners and operators to determine whether free product
must be recovered under §334.79 of this title (relating to
Removal
of Non-Aqueous Phase Liquids (NAPLs)
[
Free Product Removal
]);
executive director
];
executive director
];
executive director
].
executive director
]
to determine the degree and nature of the release and identify potential receptors.
Subsequently, the owner and operator
of an aboveground storage tank (AST)
or underground storage tank (UST)
must establish the classification
of the release(s) according to the classification system established by the
agency
[
executive director
]. The classification system shall
be used to qualitatively assess the degree of threat the release poses to
public health and safety, and the environment relative to all other leaking
storage tank sites. The classification system will be utilized by the
agency
[
executive director
] as the primary method to coordinate
leaking storage tanks sites.
executive director
].
executive director
].
executive director
]
as further site information is obtained or as exposure conditions change.
executive director
]
as situations are encountered that are not currently addressed in the system.
executive director
]
may direct corrective actions out-of-classification order as necessary to
ensure efficient use of available
agency
[
commission
]
resources, including staff, time, and the funds from the Petroleum Storage
Tank Remediation Fund.
executive director
] in a
manner that demonstrates its applicability and technical adequacy, or in a
format and according to the schedule required by the
agency
[
executive director
].
executive director without prejudice
], and shall not qualify as a submitted
site assessment for the purposes of this chapter. Return of such documents
by the
agency
[
executive director without prejudice
]
does not prevent the owner or operator from filing subsequent site assessment
documentation.
Free Product Removal].
free product
], owners and operators must remove
NAPLs
[
free product
] to the maximum extent practicable as determined by the
agency
[
executive director
] while continuing, as necessary, any
actions required under §334.80 and §334.81 of this title (relating
to Investigations for Soil and Groundwater Cleanup; and Corrective Action
Plan). In meeting the requirements of this section, owners and operators must:
free product
] removal
in a manner that minimizes the spread of contamination into previously uncontaminated
zones by using recovery and disposal techniques appropriate to the hydrogeologic
conditions at the site, and that properly treats, discharges, or disposes
of recovery by-products in compliance with applicable local, state, and federal
regulations;
use
abatement of free product migration
] as a minimum objective for the
design of the
NAPL recovery system
[
free product removal system
];
executive director
], within 45 days after
confirming a release, a
product recovery
[
free product removal
] report that provides at least the following information:
free product
] removal measures;
free product
] observed or measured in wells, boreholes,
and excavations;
free product
] recovery system used;
free product
]; and
executive director
].
In order to
] determine the full
extent and location of soils contaminated by the release, the presence and
concentrations of dissolved regulated substance contamination in the groundwater,
and the risk associated with the release, owners and operators must conduct
investigations of the release, the release site, and the surrounding area
(including adjacent areas not under ownership by the owner or operator) as
necessary to determine the extent of the release if any of the following conditions
exist:
free product
] is found to need recovery in compliance with §334.79 of this
title (relating to
Removal of Non-Aqueous Phase Liquids (NAPLs)
[
Free Product Removal
]);
Initial Site Characterization
]; and
Removal of Non-Aqueous Phase Liquids(NAPLs)
[
Free Product Removal)
]); or
executive director
]
requests an investigation, based on the potential effects of contaminated
soil or groundwater on nearby surface water or groundwater resources.
executive director
].
Initial Site Characterization
]), the
agency
[
executive director
] may require owners or operators
to submit additional information or to develop and submit a corrective action
plan for responding to contaminated soils and groundwater. If a plan is required,
owners and operators must submit the plan according to a schedule and format
established by the
agency
[
executive director
]. Alternatively,
owners and operators may, after fulfilling the requirements of §§334.76-334.78
of this title [
(relating to Initial Response to Releases; Initial Abatement
Measures and Site Check; and Initial Site Characterization)
], choose
to submit a corrective action plan for responding to contaminated soil and
groundwater. In either case, owners and operators are responsible for submitting
a plan that provides for adequate protection of human health, safety, and
the environment as determined by the
agency
[
executive director
], and must modify their plan as necessary to meet this standard.
executive director
] will
approve the corrective action plan after ensuring that implementation of the
plan will adequately protect human health, safety, and the environment as
determined in
§334.203 of this title (relating to Risk Based Criteria
for Establishing Target Concentrations)
[
using risk-based corrective
action to establish target cleanup levels
] and
to achieve
case closure criteria. In making this determination, the
agency
[
executive director
] will consider the following factors as deemed
appropriate:
a remedial progress monitoring plan
];
(9)
an operation and maintenance plan;
and
]
(10)
] any information assembled
in compliance with this subchapter.
executive director
].
executive director
],
may be returned by the
agency
[
executive director without
prejudice
], and shall not qualify as a submitted corrective action plan
for the purposes of this chapter. Return of such documents by the
agency
[
executive director without prejudice
] does not prevent
the owner or operator from filing subsequent corrective action plan documentation.
executive director
], owners and operators
must implement the plan, including
any revisions
[
modifications
] to the plan
as requested
[
made
] by the
agency
[
executive director
]. They must monitor, evaluate,
and report the results of implementing the plan in accordance with a schedule
and in a format established by the
agency
[
executive director
].
executive director
]
of their intention to begin cleanup;
executive director
], including halting cleanup or mitigating
adverse consequences from cleanup activities;
executive director
] for approval; and
commission
].
In order to
] verify the effectiveness
of corrective action taken by the owner or operator, the
agency
[
executive director
] may require continued monitoring of soil,
vapors, groundwater, and/or surface water.
shall
] submit a statement signed by the owner or operator which
certifies that the requirements of this section and the procedures in the
approved corrective action plan have been accomplished.
commission
]
will
[
shall
] issue a closure letter in response to the certification
of completion of corrective action requirements submitted by the owner or
operator as required in subsection (h) of this section.
a
]
corrective action [
plan
], the
agency
[
executive
director
] shall provide notice to the public by means designated to
reach those members of the public directly affected by the release and the
planned corrective action. This notice may include, but is not limited to,
public notice in local newspapers, block advertisements, publication in a
state register, letters to individual households, or personal contacts by
field staff.
that complies with subsection (a) of this section
] if implementation of an approved corrective
action
plan
does not achieve the established cleanup levels in the plan and termination
of that plan is under consideration by the executive director.
Commission ].
commission
] may undertake
corrective action in response to a release or a threatened release if:
underground storage tank
] cannot be found;
underground storage tank
], in the opinion of the
agency
[
executive director
], is unable to take the corrective action necessary
to protect the public health and safety and/or the environment; or
commission
] may retain
agents to perform corrective action it considers necessary to carry out the
provisions of this
chapter
[
subchapter
]. The agents
shall operate under the direction of the executive director.
Subchapter E. FINANCIAL RESPONSIBILITY
Subchapter F. ABOVEGROUND STORAGE TANKS ASTs ].
aboveground
storage tanks
] that may pollute such groundwater and surface water resources,
and to provide for the protection of human health and safety, as well as the
protection of the overall environment of the state.
aboveground storage tank
]
shall be subject to the regulations in this subchapter only when such tank:
ASTs
]);
§334.122
] of this title
(relating to Definitions [
for ASTs
]);
Statutory
] Exemptions for
Aboveground
Storage Tanks (ASTs)
[
ASTs
]); and
Commission
] Exclusions for
Aboveground
Storage Tanks (ASTs)
[
ASTs
]).
shall apply
] to regulated
ASTs
[
aboveground storage tanks
], and to the registration, installation
notification, reporting, recordkeeping, release reporting and corrective action,
fee assessment, and other requirements associated with such tanks, as more
fully described in this subchapter.
shall
] apply equally to all owners and operators of regulated
ASTs
[
aboveground storage tanks
], including individuals,
trusts, firms, joint-stock companies, corporations, governmental corporations,
partnerships, associations (including nonprofit and charity organizations),
states, municipalities, commissions, political subdivisions of a state, interstate
bodies, consortiums, joint ventures, commercial and noncommercial entities,
and the United States government (including all of its departments), except
as otherwise provided in this subchapter.
shall be
] subject to the regulations in this subchapter
if they meet the general qualifications for an
AST
[
aboveground
storage tank
] in paragraph (1) of this subsection:
aboveground
storage tank
] and an underground storage tank
(UST)
under
this chapter, then the tank will be considered an
UST
[
underground
storage tank
], and must conform with all applicable requirements for
UST
[
underground storage tanks
] in this chapter.
statutory
] exemption
for heating oil tanks in §334.123(a)(2) of this title [
(relating
to Statutory Exemptions for ASTs)
], an
AST
[
aboveground
storage tank
] storing a petroleum product (such as kerosene or diesel)
which is primarily used as a heating oil substitute for heating purposes on
the premises where stored, and which is secondarily used as a motor fuel for
the operation of internal combustion engines,
is
[
shall be
] exempt from the regulations of this subchapter.
ASTs ].
shall
] have the meanings
prescribed in §334.2 of this title (relating to Definitions), unless
the context clearly indicates otherwise.
(or AST)
] - A nonvehicular
device (including any associated piping) that is made of nonearthen materials;
located on or above the surface of the ground, or on or above the surface
of the floor of a structure below ground, such as a mineworking, basement,
or vault; and designed to contain an accumulation of petroleum products.
(2)
(3)
] Associated piping - All
underground pipes or aboveground pipes (including related valves, elbows,
joints, flanges, connectors, and other fittings) which are directly associated
with an
AST
[
aboveground storage tank
] storing petroleum
products, which are located at the
AST
[
aboveground storage
tank
] facility, and through which petroleum products flow or in which
petroleum products are contained or stored.
(4)
] Bulk facility - A facility,
including pipeline terminals, refinery terminals, rail and barge terminals,
and associated underground and
ASTs
[
aboveground storage tanks
], connected or separate, from which petroleum products are withdrawn
from bulk and delivered into a cargo tank or barge used to transport those
products.
(5)
] Electric generating facility
- A plant or facility where on-site equipment is used to generate electrical
power on a continuous or regular basis. This term does not include emergency
generators, as defined in §334.2 of this title [
(relating to Definitions)
].
(6)
(7)
(8)
] Nonearthen materials
- Man-made materials designed to provide structural support and containment,
such as concrete, steel, or plastic.
(9)
] Nonvehicular device -
A fixed, stationary, or moveable storage vessel which is not affixed or mounted
to any self-propelled, towable, or pushable vehicle (e.g., wagon, truck, trailer,
railcar, aircraft, boat, or barge).
(10)
(11)
(12)
(13)
(14)
(15)
Statutory ] Exemptions for Aboveground Storage Tanks (ASTs) [ ASTs ].
, as provided in the
Texas Water Code, §26.344
]:
aboveground storage tank
] connected to
such facility, if the pipeline facility is regulated under:
aboveground storage tank
] connected to such a facility,
if the pipeline facility is regulated under one of the following state laws:
Commission ] Exclusions for Aboveground Storage Tanks (ASTs) [ ASTs ].
by commission directive
]:
such
] tank
must
[
shall
] be inspected for
a release no less than once every month;
aboveground storage tank
] containing
petroleum products located at a retail service station is subject to the construction
notification requirements of §334.126 of the this title (relating to
Installation Notification for
Aboveground Storage Tanks (ASTs)
[
ASTs
]).
ASTs ].
(1)
]
(2)
] of this subsection, on or after the effective date of this
subchapter, no
common carrier (as defined in §334.2 of this title
(relating to Definitions)
[
person
] shall deposit [
or
have deposited
] any petroleum products into an aboveground storage tank
(AST)
unless
the owner or operator has a valid, current registration
certificate, issued by the agency
[
such tank is registered with
the commission
] in accordance with §334.127 of this title (relating
to Registration of
Aboveground Storage Tanks (ASTs)
[
ASTs
]). [
Prior to the deposit of any petroleum products into an aboveground
storage tank, the owner or operator shall provide evidence of registration
as necessary to comply with the provisions of this paragraph.
]
The prohibited delivery of petroleum products shall
not be applicable to the initial deposit of petroleum products into a new
or replacement aboveground storage tank, or to any subsequent deposits occurring
within 30 days of the first deposit.
]
Installation notification.
No person shall perform any installation or replacement of an aboveground
storage tank unless and until the commission has been provided prior notification
of such activity in accordance with §334.126 of this title (relating
to Installation Notification for ASTs).
]
(c)
(1)
(2)
ASTs ].
on or after the effective date of this subchapter,
] any person who intends
to install a new or replacement aboveground storage tank
(AST) must
[
shall
] comply with the notification requirements of this section
prior to initiating such activity.
executive director
] at least 30 days prior to initiating
the activity.
commission's
] central office in Austin or to the
agency's
[
commission's
] appropriate
regional
[
district
] office. The official date of notification shall be the date
on which the notification is first received in
an agency
[
a commission
] office.
agent or
] representative of the owner or
operator, (
e.g.,
[
or
] the contractor or consultant retained
for the activity
)
. Notifications filed by unauthorized persons
shall be null and void.
commission's
] authorized form. The form shall be filled out [
as
] completely [
as possible
]. Upon completion, the form shall
be dated and signed by the owner or operator (or
authorized
[
designated
] representative) and shall be filed in accordance with this
paragraph.
aboveground storage tanks
] (as required under this
section) may be filed together with construction notifications for underground
storage tank
(UST)
activities at the same facility (as required
by §334.6 of this title (relating to Construction Notification
for Underground Storage Tank (USTs) and UST Systems
)), provided that
complete and accurate explanation of the activities is included.
designated
] representative) shall contact the
agency's
[
commission's
] appropriate
regional
[
district
] office to confirm the time of the initiation of the installation activities.
aboveground storage tanks
] shall be in conformance
with the procedures for construction notifications applicable to
USTs
[
underground storage tanks
] in §334.6(b)(3)-(5) of
this title [
(relating to Construction Notification)
].
executive director
], any person who intends to install a new or replacement
AST
[
aboveground storage tank
] shall also submit additional
supporting information to assure that the activity is in compliance with applicable
statutes and regulations.
aboveground storage tank
] that is to be located in the designated recharge
zone or transition zone of the Edwards Aquifer shall also secure the requisite
approval from the executive director prior to initiating any installation
or replacement activities, as prescribed in Chapter 313 of this title (relating
to Edwards Aquifer).
underground
storage tank
] is to be removed from the ground and is to be subsequently
converted to an
AST
[
aboveground storage tank
], the
person
[
owner or operator
] must comply with the applicable
technical requirements under §334.55 of this title (relating to Permanent
Removal from Service) and with the notification requirements of §334.6
and §334.126 of this title (relating to Construction Notification
for Aboveground Storage Tanks (ASTs)
and Installation Notification for
Aboveground Storage Tanks (ASTs)
[
ASTs
]).
aboveground storage
tanks
] shall not be subject to the installation notification requirements
of this section:
aboveground storage tanks
]
which are [
statutorily
] exempt from regulation under §334.123
of this title (relating to [
Statutory
] Exemptions for
Aboveground
Storage Tanks (ASTs)
[
ASTs
]);
aboveground storage tanks
]
which are excluded from regulation [
by commission directive
] under §334.124
of this title (relating to [
Commission
] Exclusions for
Aboveground
Storage Tanks (ASTs)
[
ASTs
]);
aboveground
storage tanks
] (e.g., skid tanks) which are moved from one location
to another on a regular basis, which are not permanently part of any particular
facility, and which are otherwise in compliance with the provisions of §334.127(f)
of this title (relating to Registration for
Aboveground Storage Tanks
(ASTs)
[
ASTs
]); except that any movable or mobile
ASTs
[
aboveground storage tanks
] proposed for installation or
placement at a retail service station shall remain subject to the installation
notification requirements of this section.
ASTs ].
shall
] be registered
with the
agency
[
commission
] on
authorized agency
forms
in accordance with subsection (e) of this section
[
supplied by or approved by the executive director
], except for
those tanks which:
statutorily
] exempt from regulation under §334.123
of this title (relating to [
Statutory
] Exemptions for
Aboveground
Storage Tanks (ASTs)
[
ASTs
]); or
by commission directive
] under §334.124 of this title (relating to [
Commission
]
Exclusions for
Aboveground Storage Tanks (ASTs)
[
ASTs
]).
aboveground storage tank
]
are
[
shall
be
] responsible for compliance with the tank registration requirements
of this section. An owner
or operator
may designate an authorized
representative to complete and submit the required registration information
; however,
[
. However,
] the owner
and operator remain
[
shall be held
] responsible for compliance with the provisions
of this section [
by such representatives
].
aboveground storage tanks
] subject to the registration requirements of this section
are
[
shall
] also [
be
] subject to the [
annual
facility
] fee provisions in §334.128 of this title (relating to
Annual Facility Fees for
Aboveground Storage Tanks (ASTs)
[
ASTs
]), except where specifically exempted from such fee provisions.
The failure by a tank owner
or operator
to properly
or timely
register any tanks shall not exempt the owner from such fee assessment
and payment provisions.
aboveground storage tank
] subject to the provisions
of this section that was in existence on September 1, 1989, shall register
such tank with the
agency
[
commission
] not later than
March 1, 1990, on
an authorized agency
forms [
supplied by
or approved by the executive director
].
aboveground storage tank
] subject to the provisions of this section that is placed into service
on or after September 1, 1989, must register the tank with the
agency
on an authorized agency form
[
commission on forms supplied by or
approved by the executive director
] no later than March 1, 1990, or
within 30 days from the date any petroleum product is
first
placed
into the tank, whichever is later.
aboveground storage tank
] subject
to the provisions of this section
must
[
shall
] provide
written notice to the
agency
[
executive director
] of
any changes or additional information concerning the status of any regulated
tanks, including, but not [
necessarily
] limited to, information
regarding the operational status, condition, substance stored, ownership,
location of records, and number of tanks.
This
[
Such
]
notice
must
[
shall
] be submitted on
an authorized
agency
[
a
] form
which has been completed in accordance
with subsection (e) of this section
[
supplied by or approved by
the executive director
].
This
[
Such
] form
must
[
shall
] be properly completed and signed, and shall
include the
Texas Natural Resource Conservation Commission (TNRCC)
[
commission's unique
] facility identification number
in the
appropriate space on the form.
Notice of any change or additional information
must
[
shall
] be filed with the
agency
[
executive
director
] within 30 days of the occurrence of the change or addition,
or within 30 days from the date on which the owner or operator first became
aware of the change or addition, as applicable.
Registration
] form for
providing AST registration information
[
aboveground storage tanks
].
tank
] owner
or operator
required to submit tank registration information under subsections
(a)-(d) of this section
must
[
shall
] provide all the
[
required
] information
indicated on the agency's authorized
[
on a
] form [
supplied by or approved by the executive
director
] for each regulated
AST
[
tank
] owned.
shall
] be filled out [
as
] completely and accurately [
as possible
]. Upon completion, the form
must
[
shall
] be dated and signed by the owner
, operator,
or
an
authorized
[
the owner's designated
] representative
of the owner or operator
, and
must
[
shall
] be
filed with the
agency
[
executive director
] within the
time frames specified in this section.
tank
] owners
or operators
required to submit
AST
[
tank
] registration
information under subsections (a)-(d) of this section
must
[
shall
] provide the registration information for all
ASTs
[
aboveground storage tanks
] located at a particular facility on
the same registration form.
Tank
] owners
or operators
who own
or operate ASTs
[
tanks
] located
at more than one facility
must
[
shall
] complete and
file a separate registration form for each facility
where regulated ASTs
are located, unless otherwise allowed under subsection (f) of this section.
shall
] be conspicuously indicated on each document, and all such documents
must
[
shall
] be securely attached to and filed with the registration
form.
aboveground storage tanks
]. Movable or mobile
ASTs
[
aboveground storage tanks
] which are regularly used to store petroleum
products (e.g., skid tanks)
must
[
shall
] also be registered
by the owner or operator in accordance with the provisions of this section.
When such tanks are intended to be moved from one location to another on a
regular basis and are not permanently part of any particular facility, then
an owner
or operator
may register the tanks in accordance with
the following procedures
:
[
.
]
may
] identify
the facility location for such movable tanks as the owner's
or operator's
principal business address or location
;
[
.
]
shall
] continuously maintain complete and accurate records of the specific
location, operational status, condition, and type of petroleum products stored
at the owner's
or operator's
principal business address or location.
At any given time, the [
owner's
] records
must
[
shall
] include the required tank information for at least the preceding
five years[
, except that records for any period prior to the effective
date of this subchapter shall not be required
]. Such records
must
[
shall
] be readily accessible and available for inspection
upon request by
agency
[
commission
] personnel
;
and
[
.
]
shall
] be
permanently and legibly labeled with the
agency's
[
executive
director's
] designated identification number for such tank by painting,
decals, tags, or other permanent identification method.
tank
] registration information submitted to the
agency
[
commission
] is determined to be inaccurate, unclear,
illegible, incomplete, or otherwise inadequate, the
agency
[
executive director
] may require the owner
and/or operator
to submit additional information. An owner
and/or operator must
[
shall be required to
] submit any such additional information within
30 days of receipt of such request.
Registration requirements for ASTs for reimbursement. In order to be
eligible for reimbursement of any corrective action expenses, the eligibility
requirements relating to registration, as provided in §334.310 of this
title (relating to Requirements for Eligibility) must be met.
]
ASTs ].
shall
] be assessed
by the
agency
[
commission
] for each aboveground storage
tank
(AST)
subject to the registration provisions of §334.127
of this title (relating to Registration for
Aboveground Storage Tanks
(ASTs)
[
ASTs
]).
shall
] be billed to, and
must
[
shall
] be payable by,
the owner of the
AST
[
aboveground storage tank
].
executive director
]
mails a statement of the assessment to the tank owner.
executive director
]
will
[
shall
] establish a schedule for the billing of annual
facility fees.
shall
] be based on the total number of regulated
ASTs
[
aboveground storage tanks
] in place on or after the first day
of each fiscal year (September 1).
executive director
]
will
[
shall
] impose interest and penalties on owners who
fail to make payment of the annual facility fees assessed under this section
when due in accordance with Chapter 12 of this title (relating to Payment
of Fees).
commission
]
will
[
shall
] deposit
all annual facility fees collected, together with all interest and penalties
collected for late payment, in the state treasury to the credit of the storage
tank fund.
shall
] not be assessed for an
AST
[
aboveground storage
tank
] which is owned by a common carrier railroad, as provided in the
TWC
[
Texas Water Code
], §26.344(g).
ASTs ].
shall
] comply with the same release reporting,
investigation, and corrective action requirements and procedures applicable
to underground storage tanks, as prescribed in Subchapter D of this chapter
(relating to Release Reporting and Corrective Action), whenever a suspected
or confirmed release of a petroleum product from an
AST
[
aboveground storage tank
] has occurred.
aboveground
storage tank
] which stores other petroleum substances or hazardous substances
which are not petroleum products
must
[
shall
] comply
with the release reporting, investigation, and corrective action requirements
prescribed in the Texas Water Code, Chapter 26, Subchapter G.
ASTs ].
shall
] assure that all reporting
and filing requirements in this subchapter are met, including the following
(as applicable):
ASTs
]);
aboveground storage tank
] in the Edwards Aquifer recharge
or transition zones, in accordance with §334.126(3) of the this title
[
(relating to Installation Notification for ASTs)
] and Chapter
313 of this title (relating to Edwards Aquifer);
aboveground
storage tanks
] and changes in information, in accordance with §334.127
of this title (relating to Registration for
Aboveground Storage Tanks(ASTs)
[
ASTs
]);
aboveground storage tanks
], in accordance with §334.128 of
this title (relating to Annual Facility Fees for
Aboveground Storage
Tanks (ASTs)
[
ASTs
]);
ASTs
] and Subchapter D of this chapter (relating to Release
Reporting and Corrective Action);
executive director
] or the commission to demonstrate
compliance with the provisions of this subchapter.
aboveground storage tanks
]
must
[
shall
] comply with the same general recordkeeping requirements
applicable to underground storage tanks, as prescribed in §334.10(b)(1)
of this title (relating to Reporting and Recordkeeping).
aboveground storage tanks
] (e.g., skid tanks) may maintain
the records for such tanks in accordance with the provisions of §334.127(f)(2)
of this title [
(relating to Registration for ASTs)
].
aboveground storage tanks
]
must
[
shall
] assure that legible copies of all original and amended
tank registration documents, as prescribed in §334.127 of this title
[
(relating to Registration for ASTs)
],
are
[
shall
be
] maintained for the operational life of the
AST
[
aboveground storage tank
].
ASTs ].
shall
] not relieve such owner or operator from the
responsibility of compliance with any other laws and regulations directly
and/or indirectly affecting such tanks and the stored petroleum products,
including, but not necessarily limited to, all applicable regulations legally
promulgated by the United States Environmental Protection Agency, United States
Occupational Safety and Health Administration, United States Department of
Transportation, United States Nuclear Regulatory Commission, United States
Department of Energy, [
Texas Air Control Board,
] Texas Department
of Health, State Board of Insurance (including State Fire Marshal), Railroad
Commission of Texas, Texas Department of Agriculture, State Comptroller, Texas
Department of Public Safety,
Texas Natural Resource Conservation Commission
[
Texas Water Commission
] and any other federal, state, and
local governmental agencies or entities having appropriate jurisdiction.
aboveground storage tanks
] subject
to the provisions of this subchapter
are
[
shall be
]
responsible for ensuring compliance with all applicable provisions of this
subchapter. Owners and operators are responsible for any violations or noncompliant
activities resulting from the actions or inactions by any [
contractor,
operator, or other
] person who is employed or otherwise engaged by
the
[
an aboveground storage tank
] owner or operator [
to be principally in charge of any activities or procedures required under
this subchapter
].
aboveground storage tank
], on
the request of the
agency
[
commission
]
must
[
shall
]:
commission
] at all reasonable times to have access to and
to copy all records relating to the tank.
commission, its
] designated agent[
,
] or employee may:
aboveground storage tank
] is located;
commission
]
may
direct
[
order
] an owner or operator of an
AST
[
aboveground storage tank
] to conduct monitoring and
testing if the
agency
[
commission
] finds that there
is reasonable cause to believe that a release has occurred in the area in
which the [
aboveground storage
] tank is located.
(4)
(5)
Subchapter G. TARGET CONCENTRATION CRITERIA
executive director
] on or before August 31, 2003.
executive director
] on or before August
31, 2003, the provisions of this subchapter are applicable to owners and operators
of all underground storage tanks
(USTs)
and petroleum product aboveground
storage tanks
(ASTs)
unless otherwise specified in Subchapters
A and F of this chapter (relating to General Provisions and Aboveground Storage
Tanks, respectively). These rules supersede previous cleanup guidelines as
published in the January 1990, Guidance Manual for LPST Cleanups in Texas.
All leaking storage tank cases which are not eligible for closure pursuant
to the cleanup guidelines as published in the January 1990, Guidance Manual
for LPST Cleanups in Texas as of November 8, 1995 shall be reevaluated by
the owner and operator under this rule to establish target concentrations
unless the
agency
[
executive director
] has provided
written approval of a remediation plan to clean a site to a specific numeric
target concentration and the remediation plan has been initiated prior to
November 8, 1995
[
the effective date of these rules
]. For
releases reported to the
agency
[
executive director
]
on or after September 1, 2003, the provisions of Chapter 350 of this title
(relating to Texas Risk Reduction Program) are applicable to owners and operators
of all
USTs
[
underground storage tanks
] and petroleum
product aboveground storage tanks
(ASTs)
unless otherwise specified
in Subchapters A and F of this chapter in place of the provisions of this
subchapter.
executive director
] may use as part of a corrective action plan to control or eliminate
an otherwise viable exposure pathway to ensure that exposure to remaining
regulated substances is reduced to a human health and environmentally protective
level. Institutional controls may include record notice, land use restrictions,
land access restrictions and controls, or other legally binding and practically
feasible instrument.
U.S.
] Environmental Protection Agency under Section 141 of the
Federal Safe Drinking Water Act.
were
] not affected by the
released regulated substance. This will not consider uses that are unlikely
to occur or otherwise extreme circumstances. Groundwater is considered to
have a potential beneficial use as a drinking water source if the natural
quality of the groundwater is less than 10,000 mg/l total dissolved solids
content, yields of usable quantities of water are discharged to wells or springs,
or
[
and/or
] there is a documented use of the groundwater.
executive director
] and determine whether
or not such pathways are complete [
or not
]. A pathway is considered
complete if there is a source area, a transport mechanism and an existing
or potential receptor;
executive director
];
executive director
]
when such information is provided by the
agency
[
executive
director
];
executive director
] when site-specific media property
information is not available;
executive director
] to calculate
target concentrations;
reasonable
] potential
beneficial use of the affected groundwater shall be considered;
executive director
] that the documented
actual beneficial use of the affected groundwater is for a use other than
drinking water purposes;
executive director
]
for beneficial use groundwaters. For any carcinogen, if the federally promulgated
MCL is a higher value (less stringent), then the MCL may be used;
free product
] as required pursuant to §334.79 of this title
(relating to [
Free Product
] Removal
of Non-Aqueous Phase Liquid
) and any subsequent monitoring as required by the
agency
[
executive director
] shall be necessary when the affected groundwater
is of no potential beneficial use provided the owner and operator can document
to the satisfaction of the
agency
[
executive director
]
that the dissolved regulated substance concentrations for such groundwater
that is less than 15 feet deep, is protective of potential direct contact
by construction workers; that any explosive vapors, adverse affects to subsurface
utilities, nuisance conditions, discharge of regulated substances to surface
waters at unprotective levels, and plume expansion have been abated and should
not occur in the future. When any of these conditions are not met with only
the
[
free product
] removal
of non-aqueous phase liquid
, then target groundwater concentrations shall be established by the
owner and operator so as to meet these conditions;
executive director
] that an alternate depth is more appropriate.
Fifteen feet in the opinion of the
agency
[
commission
]
represents a reasonable depth above which soil could be excavated and brought
to the ground surface during construction activities;
two
] feet is affected, but not covered
with an impermeable surface. If the owner and operator can provide sufficient
evidence that the impermeable surface will be maintained and will prevent
inhalation exposure, then inhalation from soil contaminants may be dropped
from further analysis;
executive director
]
that such action is technically infeasible and that public health and the
environment are otherwise adequately protected;
executive director
];
executive
director
] may recommend institutional controls in accordance with §334.205
of this title (relating to Institutional Control Requirements) to reinforce
exposure assumptions; and
executive director
] to protect public health, safety,
and the environment
.
[
; or
]
(relating
to Corrective Action Plans)
].
executive director
] and determine whether
or not such pathways are complete or not. A pathway determined to be incomplete
in the Plan A evaluation does not need to be reevaluated under this subsection.
executive director
].
executive director
]
when such information is provided by the
agency
[
executive
director
].
executive director
] when site- specific
media property information is not available. Use of site-specific media property
information is encouraged as part of this evaluation. If the owner and operator
wish to use alternative models, prior concurrence from the
agency
[
executive director
] shall be obtained.
executive director
] may
require owners and operators to collect additional site information prior
to or after the evaluation of the site under this section to substantiate
the conclusions of the evaluation.
executive director
].
executive director
].
executive director
] may
allow use of compliance points to serve as the basis for meeting target concentrations
for indirect exposure pathways provided:
executive director
] shall place more value on the monitoring
data;
executive director
]
may require the use of specific contaminant fate and transport models; and
executive director
] may recommend the use of specific institutional
controls to control or eliminate potentially viable exposure pathways, and
to reinforce exposure assumptions and future land use assumptions.
executive director
].
executive director
].
commission
]. Toxicological information shall be from the
following sources in order of listing:
executive director
];
executive director
].
executive director
] that all corrective action regulations
have been met and that no further corrective actions are warranted, then the
case shall be considered closed unless a substantial change in circumstances
results in an unacceptable risk to human health or the environment. A substantial
change in circumstance shall include, but is not limited to:
executive director
] that the past use of the property
and use of surrounding properties clearly suggests future use of the property
for residential land use is unlikely.
commission
] for each affected property to
verify that the property owners have been consulted.
executive director
] to verify the appropriate categorization
of land use.
executive
director
].
executive director
] may recommend the specific conditions
of the institutional control. In the event the
agency
[
executive
director
] and the owner and operator are unable to agree upon a suitable
institutional control, then the
agency
[
executive director
] will require target concentrations to be established so as to eliminate
a need for an institutional control.
executive director
] by the owner and operator
which indicates that the owner of the affected property understands the requirements
set forth in §334.206 of this title (relating to Criteria for Institutional
Control Use) and agrees with the placement and terms of the institutional
control.
executive director
] requests the filing of an institutional control,
the owner and operator must provide a certified copy of the filed institutional
control stamped by the County Clerk(s), listing the page and volume of the
record notice to the
agency
[
executive director
]. The
filed institutional control must contain:
executive
director
];
executive
director
] must be notified in writing at least 120 days prior to changes
in site use or site conditions which violate the terms of the institutional
control, when the terms of the institutional control place use conditions
on the affected area;
at
] the [
Texas Natural
Resource Conservation Commission or subsequent
] agency;
executive director
].
executive
director
] in writing at least 120 days prior to changing the use or
altering the condition of the site such that the conditions specified in the
institutional control would no longer be met. The owner and operator will
then provide a re-evaluation of the site to the
agency
[
executive
director
] within 30 days of the date of notification such that the property
owner is able to demonstrate:
executive director
], the closure status is valid only so long as the
conditions set forth in the institutional control agreed to by the
agency
[
executive director
] and filed in the county deed records
are met. When the conditions of the institutional control are not met, then
the conditions for closure are no longer met, and site closure status is nullified.
The current or future owner and operator affected by the institutional control
shall notify the
agency
[
executive director
] within
24 hours of the discovery that the conditions of the institutional control
are not met. When the conditions of the institutional control are not met
and the change in site use or condition was not coordinated as defined in
subsection (a)(5) of this section, then the future or current owner and operator
is out of compliance pursuant to §334.81(h) of this title (relating to
Corrective Action Plan) and may be subjected to formal enforcement proceedings.
executive director
] that concentrations of residual substances at the site no longer exceed
the target risk goals by process of natural degradation or other active site
cleanup, then the
agency
[
executive director
] shall
agree by written concurrence to the placement of a statement in the county
deed records by the current or future owner of the land which nullifies the
need for the institutional control and indicates that residual substance concentrations
meet health protective levels. Under this condition, the final concurrence
letter shall remain in effect.
Subchapter H. REIMBURSEMENT PROGRAM
Commencing Corrective Action
]. This subchapter applies only under the
following conditions:
executive director
] on or before December 22, 1998; and
executive director
].
Considered for Payment - Time Frame
in Which Corrective Action Performed
]. Subject to the other requirements
of this subchapter, the expenses which may be considered for payment from
the petroleum storage tank remediation fund
(PSTR)
are limited
to expenses of corrective action which was performed for the owner or operator
on or after September 1, 1987, and conducted in response to a confirmed release
that was initially discovered and reported to the
agency
[
commission
] on or before December 22, 1998. Expenses for corrective
action performed prior to September 1, 1987, are not subject to reimbursement
or payment. No expenses for corrective action will be reimbursed on or after
September 1,
2003
[
2001
].
(d)
(1)
(2)
(e)
]
Limitations
[
Limitation
]. This subchapter shall not be construed to authorize reimbursement
or payment from the
PSTR
[
petroleum storage tank remediation
] fund in situations other than those described in subsection (a) of
this section
and any person seeking reimbursement under this subchapter
must meet the requirements of this subchapter
.
(f)
(1)
(2)
(g)
] Operative date for this subchapter.
This subchapter applies as follows.
petroleum storage tank remediation
] fund to
be filed and processed pursuant to its terms on and after July 17, 1990, and
ratifies any actions relating to filing and processing applications taken
in accordance with this subchapter.
executive director
] to make payments pursuant to its terms from
the
PSTR
[
petroleum storage tank remediation
] fund on
and after July 17, 1990, and ratifies any payments made in accordance with
this subchapter.
executive director
] under
prior rules of the commission.
(h)
] If any section, subsection,
paragraph, subparagraph, clause, or subclause of this subchapter is held invalid,
such invalidity shall not affect any other section, subsection, paragraph,
subparagraph, clause, or subclause which can be given effect without the invalid
provision, and to this end the provisions of this subchapter are declared
to be severable.
(i)
(1)
(2)
(3)
(4)
(A)
(i)
(ii)
(B)
(C)
(D)
(5)
(A)
(B)
(C)
(D)
(j)
] Suspending payments from the
PSTR fund. The executive director may suspend payments from the fund, in whole
or in part, as necessary to preserve the viability of the fund.
(k)
] Effective September 1, 1995,
the executive director shall consider and process a claim by an eligible owner
or operator for reimbursement from the
PSTR
[
petroleum storage
tank remediation
] fund in the order in which it is received, with the
following provisions:
petroleum
storage tank remediation
] fund for corrective action work begun after
September 1, 1993, and without prior approval until all claims for reimbursement
for preapproved corrective action work have been considered, processed, and
paid.
In order to
] be considered for
reimbursement under this subchapter, corrective action must be performed either
as provided in subsection (b) of this section or in response to a release
which:
executive director
];
executive director
], either before or after corrective action
commences, provided that it shall be the burden of the person claiming monies
under this subchapter to show both that a release which is eligible for reimbursement
occurred and the expenses claimed are allowable and reimbursable; and[
,
]
commission
] on or before December
22, 1998.
executive director
], and the release was initially discovered and reported to the
agency
[
commission
] on or before December 22, 1998.
commission
] under this subchapter for:
executive director
] may apportion in the case of multiple
claimants as provided in §334.314(f) of this title (relating to [
Executive Director's
] Fund Payment Report);
commission
] after December 22, 1998; or
of corrective action
] on or after September 1,
2003
[
2001
]
, regardless of when the expenses were incurred
.
--Interim Period
]).
executive director
], a certification affidavit as provided in
the application for reimbursement must be signed by all of the following:
owner or operator of a petroleum storage tank, the application preparer, and
the prime contractor and/or the prime corrective action specialist, as defined
in §334.322 of this title (relating to Subchapter H Definitions).
Time
]
to
[
To
] File Application[
--Interim Period
]).
--Interim Period
]
, respectively
) or they must be authorized
by an eligible owner or eligible operator to receive such payment pursuant
to subsections (i)-(k) of this section.
--Interim Period
]).
--Interim Period
]).
(relating to Requirements for Eligibility--Interim
Period
]) may be eligible owners or operators, provided that they meet
the other criteria prescribed by this subchapter.
executive director
] determines that the
authorization is not clear as to the disposition of funds to which the eligible
owner or operator is entitled, the
agency
[
executive director
] may withhold payment and request written clarification from the eligible
owner or operator. The
agency
[
executive director
] may
limit the number of agents or assignees who may receive payments for any one
occurrence. Notwithstanding any review made or limitations imposed by the
agency
[
executive director
] pursuant to this section, neither
the State of Texas,
nor
the
agency
[
commission,
nor its employees
] shall be responsible for insuring that payment is
made to the parties as contemplated by the authorization. It is the responsibility
of the eligible owner or operator and the agent requesting payment to insure
that the
agency
[
executive director
] is supplied with
information sufficient to make the proper payments. The right to receive payment
under this subchapter is not transferable for any purpose and only the people
authorized to receive payment under this section are entitled to do so.
executive director
]
may require the execution of a contract of subrogation prior to the disbursement
of payment.
Time ] to File Application.
an
]
application for
reimbursement
[
Application for Reimbursement
] is filed.
executive director
] on or after September 1, 1987, to assess
the nature and extent of contamination in cases where no release is discovered,
or the duly authorized agent of such owner or operator; or
shall be filed as follows:
]
(1)
(2)
executive director
] using
one of the following:
executive director
].
executive director
] under this subchapter
shall be the [
date postmarked on the return receipt in the case of mailing
or courier services, and the
] receipt date stamped on the document by
the
agency
[
executive director in the case of hand delivery
].
executive director
].
shall
] contain
the following:
executive director
];
executive director
] under §334.307 of this title (relating
to Technical Information Required), if not already submitted to the
agency
[
executive director
];
evidence
] that the amounts
shown on the invoices for which reimbursement is requested have been paid
in full by the claimant. The
submission
[
evidence
] must
include
[
be accompanied by
] either:
or
]
an
] affidavit signed
by the person who performed the corrective action, affirming that the amounts
which the applicant represents as being paid to
the person who performed
the corrective action
[
him
] were paid in full;
or
executive director
] may reasonably require.
Provided the initial application is filed on or
before the effective date of final rule adopted to succeed this interim subchapter,
the
]
An application
[
applicant
] may
be filed
[
file the application
] at [
any phase of corrective
action. Payment will only be made at
] the following [
payment
]
times:
executive director
] and the applicant.
executive director
]
may require the applicant to supplement information already submitted or return
the application [
without prejudice
] if the information is not sufficient
to review the application.
executive director
]
before processing or payment of claims at any stage begins.
and remediation
planning
] phase;
(4)
] remediation phase; [
and
]
(5)
] post-remediation
monitoring
phase[
.
]
; and
executive director
] as part of any application for
reimbursement under this subchapter:
executive
director
] may require pursuant to Subchapter D of this chapter (relating
to
Release Reporting and
Corrective Action);
executive director
]
may require the applicant to supplement information already submitted or return
the application [
without prejudice
] if the information is not sufficient
to review the application.
commission
], subject
to the limitations prescribed by this section.
, provided that in order to be allowable, any water supplied on or after January
17, 1990, must be approved in advance by the commission or must be supplied
in response to a written directive from the executive director issued before
January 17, 1990
]. The
agency
[
executive director
]
shall determine the length of time during which the cost of water supply may
be allowable, the amounts of water which may be allowable, the uses for which
water supply may be allowable, and other conditions of approval;
observation and
] monitor
wells;
executive director
] on or after May 31, 1989; or
(relating to Release Reporting and Corrective
Action)
], when necessary for the performance of corrective action and
performed on or after March 12, 1993. Reimbursement of tank removals performed
on or after March 12, 1993, shall be based on the volume of the tank removed
and shall have a maximum reimbursable limit of $8,000 per
leaking petroleum
storage tank
[
LPST
] site. For underground storage tanks
(USTs)
having a volume of 5,000 gallons or less, the portion of reimbursable
costs of removal for each such tank is $1,000. For
USTs
[
underground storage tanks
] having a volume of greater than 5,000 gallons,
the portion of reimbursable costs of removal for each such tank is $2,000;
(relating to Release Reporting and Corrective Action)
], where abandonment in-place rather than tank system removal is deemed
by the
agency
[
executive director
] to be necessary to
avoid destruction of substantial or significant surface improvements and conducted
before June 6, 1993;
(relating to Release
Reporting and Corrective Action)
];
fair market
] value of
necessary time to obtain
access to property outside
of the facility boundaries where such access is necessary for the performance
of corrective action;
his own
] corrective action plan;
or confirmation of the
]
by agency staff
[
executive
director
] on or after September 1, 1987;
executive director
] to be allowable in accordance with the provisions
of this subchapter.
executive
director
], the eligible owner or operator demonstrates that a release
from the hydraulic lift system is not mixed with any substance except for
petroleum products from a petroleum storage tank system, spent oil from a
spent oil tank located at a vehicle service and fueling facility (or another
substance contained in such spent oil tank), or another substance that was
contained in the hydraulic lift system owned or operated by the person claiming
reimbursement.
executive
director
], the eligible owner or operator demonstrates that a release
of spent oil is not mixed with any substance except for petroleum products
from a petroleum storage tank system, or hydraulic fluid (or another substance
that was contained in the hydraulic lift system) or another substance that
was contained in the spent oil tank owned or operated by the person claiming
reimbursement.
(relating
to Release Reporting and Corrective Action)
] required because of the
disposal or treatment of the backfill material are allowable costs where the
concentration of constituents in the backfill material exceed a standard for
which the
agency
[
executive director
] will permit the
backfill material to be returned to the original tank pit excavation and a
prior written directive is obtained from the
agency
[
executive
director
] prior to implementation.
executive director
] to be necessary to avoid destruction
of substantial or significant surface improvements when conducted on or after
March 12, 1993;
executive director
], or ordered by the commission;
§334.321
] of this title (relating to Corrective Action
by the
Agency
[
Commission
]), unless authorized in writing
by the
agency
[
executive director
];
of a commingled substance
as that term is defined in §334.322 of this title (relating to Subchapter
H Definitions), excluding subsections (d) and (e) of this section; and
]
commission
] will utilize
the reimbursable cost guidelines, as outlined in §334.560 of this title
(relating to Reimbursable Cost Guidelines), to evaluate the reimbursability
of claims related to the cleanup of leaking petroleum storage tank sites.
commission
] will consider the pre-approved
cost or the actual cost, whichever is lower, as the reimbursable cost.
2001
] in response to a release of petroleum products from such tank;
executive director
] within 24 hours of discovery that the emergency condition exists;
executive director
] in writing; and
executive director
]; or
executive director
];
executive director
] on or before December 31, 1995, or the owner or
operator is not eligible to receive reimbursement for that tank, except for:
executive director
]
pursuant §334.7 of this title [
(relating to Registration)
]
or §334.127 of this title [
(relating to Registration of ASTs)
]
no later than the 30th day after the date the installation is completed to
be eligible for reimbursement for such tank.
executive director
], except for those tanks which the owner or operator, upon reasonable
inquiry, could not have known existed. All fees which come due up until the
time that reimbursement funds are released to the claimant must be paid.
executive
director
] on or before December 22, 1998, and must subsequently be confirmed
by the
agency
[
executive director
].
executive director
]
may determine other persons to be eligible owners or operators in accordance
with the standards of the Texas Water Code, §26.3571.
Commission
]).
executive director
]
shall deduct from any amount claimed for reimbursement an amount of allowable
costs equal to the greater amount applicable for the owner/operator contribution
as described in this section.
commission
] before
June
23, 1998
[
December 23, 1997
], the owner/operator contribution
for each occurrence shall be as follows:
(relating to Corrective Action Plan)
]
is not approved by the
agency
[
commission
] before
December 23, 1999, and
[
December 23, 1998 or
] if the owner
or operator has not met the goals specified in the plan to be met by December
23,
1999
[
1998
], the owner/operator contribution for
each occurrence shall be as follows:
executive director
]
on the date that an administratively complete application is filed with the
agency
[
executive director
]; or
executive director
], whichever
is greater.
by Executive Director ].
executive director
]:
executive director
]
, utilizing the following procedure
;
may be returned by the executive director
without prejudice
].
This
[
Return of the application
by the executive director without prejudice
] does not prevent the applicant
from filing another application for the same occurrence
at
any
time
prior to June 1, 2003
[
on or before the effective date
of final rules adopted to succeed this interim subchapter
].
executive director
]
is not required to commence the substantive review of an application until
he has received all of the information this subchapter requires the applicant
to submit in order for the executive director to review a claim for payment.
executive director
] finds that additional information of the type required by this subchapter
is needed to evaluate the application,
it
[
he
] may
:
[
require the applicant to provide such additional information.
Further review of the application may be postponed until such information
is received by the executive director.
]
executive director
].
commission
] approval
until all claims for reimbursement for corrective action work preapproved
by the
agency
[
commission
] have been considered, processed,
and paid.
Executive Director's ] Fund Payment Report.
executive director
] shall prepare a fund payment
report, indicating which of the applicant's claims the executive director
believes should be reimbursed and which claims should not be reimbursed. If
the executive director finds that any claim should not be paid or not paid
to the full amount claimed, he shall briefly state the reasons in his report.
The executive director shall submit a copy of his report to the applicant.
executive director
] within
60
[
45
] days of
the date on
[
receipt of
] the report. The response shall be on a form provided
or approved by the
agency
[
executive director
]. The
applicant may consent or object to all or any part of the report. If the
agency
[
executive director
] has not received a response from
the applicant within
60
[
45
] days from the date
of
[
on which the applicant received
] the report, the following
shall occur:
executive director
] and the applicant agree on an
amount for payment or until the commission orders payment in a prescribed
amount, whichever occurs first.
executive director
] receives the applicant's consent form, which may
include the submission of a signed subrogation contract, when required. The
consent of the applicant to any item recommended for payment shall mean that
any claim covered by that item is considered satisfied in full.
executive director
]
may in
its
[
his
] discretion pay claims which
it
[
he
] has approved for payment by sending payment with the
fund payment report.
he
] disagrees
with any conclusion in the fund payment report, the applicant may file a protest
with the executive director within
60
[
45
] days of the
date on [
which he receives
] the fund payment report.
executive director
]. It must contain the following:
executive director's
] facility number, if any;
executive director's
] fund payment report and
any other documentation necessary to support the protest
[
of any
other complaint the applicant has relating to the claim
].
45
] days of receipt of written notification from the
agency
[
executive director
] that informal negotiations have
ceased and the final informal fund protest meeting has been held, the applicant
shall file a petition as specified in §334.316 of this title (relating
to Formal Petition).
commission
] may initiate proceedings
against any owner or operator of a petroleum storage tank for recovery of
costs, as provided by the Texas Water Code, §26.355.
and ] Operators , and Others .
executive director
] immediately.
executive director
] as part of any materials
required to be submitted under this subchapter.
Commission ].
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(b)
(c)
(d)
(e)
]
executive director
] commences corrective action at the
owner's or the operator's facility are allowable for reimbursement under this
subchapter, unless authorized
and the estimated costs preapproved
in writing by the
agency
[
executive director
]
in accordance with this subchapter
.
(1)
(2)
(3)
] Action level -- The concentration
of constituents in the native soil or water at which corrective action will
be required. Exceeding an action level warrants further assessment of the
site, but does not mandate that site cleanup be required. Based upon the results
of the site assessment, the need for site cleanup will then be determined
and cleanup levels will be set. Action levels should not be used as cleanup
levels; they are simply levels which signal the need for additional assessment.
(4)
] Adjacent landowner --
A person who owns legal title to land which is within reasonably close proximity
to property where a regulated
underground storage tank (UST)
[
UST
] or
aboveground storage tank
[
AST
] is located
whether or not the land is contiguous to the property containing the tank.
(5)
] Application preparer
-- Any person responsible for preparing the application for reimbursement.
(6)
7
] Commingled [
substance
] --
See definition in §334.2 of this title (relating to Definitions).
[
A combination or mixture of a petroleum product and a non-petroleum
product (excluding soil and/or water).
]
8
] Confirmed -- In the context
of a release[
,
] being confirmed by the
agency
[
executive director
] under this subchapter
,
means that the
executive director has determined that sufficient evidence exists to prove
that a release of petroleum products has occurred from a petroleum storage
tank subject to regulation under this chapter.
(9)
] Contract of subrogation
-- A document of agreement between the executive director and the eligible
tank owner and operator which authorizes the executive director to recover
costs reimbursed from persons who performed corrective action activities at
leaking petroleum storage tank
[
LPST
] sites.
(10)
(11)
(12)
] Eligible operator --
Any person in control of or having the responsibility for the daily operation
of a petroleum storage tank who meets the eligibility requirements prescribed
in §334.310 of this title (relating to Requirements for Eligibility).
13
] Eligible owner -- Any
person who meets the eligibility requirements prescribed in §334.310
of this title [
(relating to Requirements for Eligibility--Interim Period)
] and who
held or
currently holds legal possession or ownership
of a total or partial interest in a petroleum storage tank. For the purposes
of this subchapter, where the actual ownership of the petroleum storage tank
is either uncertain, unknown, or in dispute, the fee simple owner of the surface
estate where the petroleum storage tank is located shall be considered the
petroleum storage tank owner, unless it can be shown by appropriate documentation
(deed reservation, invoice, bill of sale, etc.) or by other legally acceptable
means that the petroleum storage tank is owned by another. "Owner" does not
include a person who holds an interest in a petroleum storage tank solely
for financial security purposes unless, through foreclosure or other related
actions, the holder of such security interest has taken legal possession of
the petroleum storage tank. [
For purposes of this subchapter, if it can
be demonstrated that a petroleum storage tank has been "out of operation"
as that term is defined in §334.2 of this title (relating to Definitions)
for a period of 10 years, the tank shall be considered property of the owner
of the surface estate (71st Legislature, 1989, Chapter 228, effective May
31, 1989).
]
(14)
] Emergency -- Any existing
or potential fire, explosion, or vapor hazards which pose an imminent threat
to human health and safety, or any imminent threat at the point of actual
use to drinking water supplies actually being used.
15
] Emergency abatement --
Taking
mitigating
actions necessary
in an emergency
to protect against imminent danger to human health and safety [
by mitigating
fire, explosion, and vapor hazards,
] by removing phase-separated product
from structures, basements, sumps, etc., or performing other actions as deemed
necessary by the
agency
[
executive director
]. Restoration
of site to preexisting conditions, cost of relocating utility structures,
site assessment, and remediation are not considered part of emergency abatement
activities.
(16)
(17)
(18)
] Initial abatement measures
-- The mitigation of all existing or potential fire, explosion, or vapor hazards,
including the removal of phase-separated product, to provide adequate protection
of human health, safety, and the environment in emergency situations or other
situations where emergency actions must be implemented to prevent further
impacts to the environment. Restoration of site to preexisting conditions,
cost of relocating utility structures, site assessment, and remediation are
not considered part of initial abatement measures.
19
] Petroleum product --
See definition in §334.2 of this title.
[
A product obtained
from distilling and processing crude oil and that is capable of being used
as a fuel for the propulsion of a motor vehicle or aircraft, including motor
gasoline, gasohol, other alcohol blended fuels, aviation gasoline, kerosene,
distillate fuel oil, and #1 and #2 diesel. The term does not include naphtha-type
jet fuel, kerosene-type jet fuel, or a petroleum product destined for use
in chemical manufacturing or feedstock of that manufacturing.
]
20
] Petroleum storage tank
--
See definition in §334.2 of this title.
(A)
(B)
(21)
] Phase-separated
product -- See Free-product as defined in §334.2 of this title [
(relating to Definitions)
].
(22)
] Prime contractor --
Any natural person
,
[
or
] consulting firm, or any entity
responsible for the contracting of any corrective action services.
(23)
] Prime corrective action
specialist -- A natural person
,
[
or
] consulting firm,
or any entity engaging in corrective action services, or acting as coordinator
of others engaged in corrective action services.
(24)
] Spent oil -- A regulated
substance that is a lubricating oil or similar petroleum substance which has
been refined from crude oil, used for its designed or intended purposes, and
contaminated as a result of that use by physical or chemical impurities, including
spent motor vehicle lubricating oils, transmission fluid, or brake fluid.
(25)
] Tank removal -- The
physical removal of an
UST
[
underground storage tank
]
from the subsurface. Tank removals include removal and replacement of surface
material, excavation and disposal of backfill material, tank removal and disposal,
backfilling and compaction of excavation, and any other activities typically
associated with the tank removal process.
(26)
] Vehicle service and
fueling facility -- A facility where motor vehicles are serviced or repaired
and where petroleum products are stored and dispensed from fixed equipment
into the fuel tanks of motor vehicles.
Subchapter I. UNDERGROUND STORAGE TANK CONTRACTOR REGISTRATION AND INSTALLER LICENSING
Subchapter I
] Definitions) who engages in the installation, repair,
or removal of an underground storage tank
(UST)
shall meet the
following application requirements [
in order
] to obtain a certificate
of registration.
executive director
].
the business
representative's name and title
];
business
] representative for any branch office within the
State of Texas which will be operating under the requested certificate of
registration;
financial assurance, including
]:
evidence
] of commercial liability
insurance designating the Texas
Natural Resource Conservation
[
Water
] Commission as the certificate holder in an amount of not less
than $1 million and of a type approved by the
agency;
[
executive
director; and a financial statement prepared in conformity with accounting
principles as defined by the American Institute of Public Accountants, indicating
an applicant's current net worth of not less than $25,000; or
]
other evidence of financial assurance which is determined
by the executive director to be sufficient for the purposes of the section
];
executive director
], from at least three persons (references),
not related by blood or marriage, who have engaged the applicant within the
previous 12 months to perform: UST installations, repairs, or removals; underground
utility construction; or other engineering construction. These statements
shall attest to the applicant's business integrity and levels of performance.
Such statements shall also include a description of the type of construction
which was performed by the applicant;
executive director
] for not providing
the sworn statements required in clause (i) of this subparagraph. The explanation
shall include a detailed description of at least three case histories of typical
UST construction activities performed by the applicant during the previous
12 months; or
executive director
] to
be sufficient for the purposes of this section;
, which has been notarized.
]
commission
]
receipt of a properly completed application as required by §334.402 of
this title (relating to Application for Certificate of Registration), and
the initial application/issuance fee
[
fees
] of $150 ($50
application fee and $100 certificate issuance fee) required under §334.406
of this title (relating to Fee Assessments for Certificate Registration).
[
The $100 issuance fee shall be refunded if the application is withdrawn
or denied.
]
executive director
] shall evaluate the application
for completeness and, if necessary, provide written comments to the applicant
noting any additional information which is required for processing. [
The executive director will forward the written comments by certified mail
return receipt requested.
] The applicant will have 30 days from date
of delivery of the
agency's
[
executive director's
] written
comments to submit the requested information, after which time [
the $100
issuance fee will be returned and
] the certificate of registration
may be
denied [
without prejudice
].
executive director
] shall either issue a
certificate of registration or deny the application.
commission
] shall notify
each registered contractor in writing of the impending registration expiration
at least 60 days prior to the expiration of the certificate of registration.
executive director
]
shall provide application forms for renewal of a certificate of registration.
executive director
] at least
30 days prior to the expiration date of the certificate of registration. [
The current certificate of registration shall be valid until the executive
director notifies the applicant of renewal or denial of the submitted renewal
application, provided a properly completed application for renewal was submitted
at least 30 days prior to the expiration date of the certificate of registration.
]
documentation of
] the financial
requirements
[
assurance
] as prescribed by §334.402(2)(D) of this
title [
(relating to Application for Certificate of Registration)
].
Documentation of
the financial requirements must be available at
any time requested by the agency.
(relating
to Application for Certificate of Registration)
] if the certificate
is not renewed earlier than one year after the expiration date of the certificate.
executive director
] shall issue a
renewal approval letter
[
certificate
] indicating the expiration
date.
executive director
] may deny a certificate
of registration or request for renewal of certificate for the following grounds:
executive director
] constitute adequate grounds for
denial.
$50
];
(B)
(C)
] annual renewal fee -- $75;
(D)
] duplicate certificate of registration
-- $10;
(E)
] application to change certificate
of registration -- $70;
(F)
] late renewal fee --
$25
[
- assessed in accordance with Chapter 12 of this title (relating
to Payment of Fees)
].
executive director
]
after the expiration date of the certificate, and shall be subject to the
late renewal fee.
executive director
] in writing within 30 days of any change
which occurs during the validated registration year. Such changes shall include,
but are not limited to:
business
]
representative
as prescribed by §334.402(2)(B) of this subchapter
(relating to Application for Certificate of Registration)
;
such
] financial
requirements
[
responsibility
]
required by §334.402 of this title [
(relating to Application for
Certificate of Registration)
] throughout the period that
the
[
such
] contractor holds a valid certificate of registration from
the
agency
[
commission
].
A
] UST contractor subject to
the provisions of this subchapter employed or otherwise engaged by
an
[
a
] UST owner or operator (or by any other person representing
to be the UST owner or operator) to conduct the installation, repair, or removal
of
an
[
a
] UST shall comply with all applicable technical
standards of Subchapter C of this chapter (relating to Technical Standards)
and Chapter 313 of this title (relating to Edwards Aquifer).
Texas Air Control Board,
] Texas Department of Health, State Board of
Insurance (including state fire marshal), Railroad Commission of Texas, Texas
Department of Agriculture, State Comptroller, Texas Department of Public Safety,
Texas
Natural Resource Conservation
[
Water
] Commission,
and other federal, state, and local governmental agencies or entities having
appropriate jurisdiction.
executive director
], or for other good cause.
(relating to Application for Certificate
of Registration)
].
Type of Hearing ].
Any hearing
related to the suspension or revocation of a certificate or registration is
subject to the Administrative Procedure and Texas Register Act, (Texas Civil
Statutes, Article 6252-13a)
]
(1)
(2)
] Certificate of registration
-- The document issued to an underground storage tank
(UST)
contractor
by the agency
authorizing
the contractor
[
same
]
to engage in the
UST
[
underground storage tank
] business
in the State of Texas.
(3)
(4)
] Critical junctures --
In the case of an installation, repair, or removal of an
UST
[
underground storage tank
] system, all of the following steps:
underground
storage tank
], including associated piping, performed during the installation;
(5)
] Engineering construction
-- That construction designed by civil and mechanical engineers, as opposed
to building construction which is designed by architectural engineers.
(6)
(7)
] Installation -- The installation
of
USTs
[
underground storage tanks
] and ancillary equipment,
including, but not limited to, the following activities:
Water Well Drillers Board
] pursuant to the Water Well Drillers
Act (Texas Civil Statutes, Article 7621e, Water Auxiliary Laws); or
(8)
(9)
] License -- The document
issued to an installer or on-site supervisor authorizing same to engage in
the
UST
[
underground storage tank
] business in the State
of Texas.
(10)
] On-site supervisor --
underground storage tanks
], underground utilities, or other engineering
construction in the State of Texas, and who meets the licensing requirements
of this subchapter.
(11)
(12)
(13)
(14)
] Removal -- The process
of removing and disposing of an
UST
[
underground storage tank
] that is no longer in service, or the process of abandoning an
UST
[
underground storage tank
] in place after purging the
tank of vapors and filling the vessel of the tank with a solid inert material,
or the change-in-service of
an
[
a
] UST, as defined in §334.2
of this title [
(relating to Definitions)
].
(15)
] Repair -- The modification
or correction of an
UST
[
underground storage tank
] and
ancillary equipment. The term does not include:
underground storage tank
] through the application of epoxy resins or similar materials;
(16)
(17)
] Underground storage
tank business (or UST business) -- A business whose particular field of endeavor
relates to the installation, removal, or repair of
USTs
[
underground storage tanks
].
(18)
] Underground storage
tank contractor (or UST contractor) -- A person or business entity that offers
to undertake, represents itself as being able to undertake, or does undertake
the installation, repair, or removal of an
UST
[
underground
storage tank
].
(19)
] Underground utilities
-- Refers to the installation of public underground water, sanitary sewer,
or storm sewer construction. This does not include private underground pipe
systems (water or sewer piping), power or communication cables, or natural
gas lines.
commission
] pursuant to this subchapter enabling
that person to supervise the installation, repair, or removal of an
UST
[
underground storage tank
].
underground
storage tank
] system unless:
commission
] pursuant to this subchapter enabling
that person to supervise the installation, repair, or removal of an
UST
[
underground storage tank
]; or
underground storage tank
]
system may not be installed, repaired, or removed except by a duly registered
UST
[
underground storage tank
] contractor who either has
or is an installer or an on-site supervisor who is licensed by the
agency
[
commission
] pursuant to this chapter at the site at all
times during the critical junctures of the installation, repair, or removal.
installer or on-site supervisor
] desiring to obtain a License A or License B shall submit a completed
application to the
agency
[
commission
] pursuant to §334.417
of this title (relating to Application for License A and License B).
executive director
] before the applicant can take the examination
required under §334.419 of this title (relating to License A and License
B Examination).
executive
director's
] approval of an applicant's qualifications, an applicant
shall successfully complete the appropriate licensing examination.
underground storage tanks (UST)
].
executive director
] and sponsored by educational or governmental institutions,
or recognized organizations including, but not limited to:
executive director
].
a list and description
] of the training and education courses
on USTs that the applicant has completed;
executive director
], from at least four persons (three
from clients not related by blood or marriage and one from a current or previous
employer, or employer's representative), that have engaged the applicant or
the applicant's employer within the previous 24 months to perform: UST installations,
repairs, or removals; underground utilities; or other engineering construction.
These statements shall attest to the applicant's character, knowledge of construction,
and ability to supervise the construction activity. Such statements shall
also include a description of the type of construction performed by the applicant;
and
executive director
]
and
shall be accompanied by the $200 initial application fee
.
schedule
]
a license examination within 120 days after the
agency's
[
executive director's
] approval of the application.
without prejudice
] and the
application
[
examination
] fee shall
be forfeited, if the applicant fails to take the licensing examination within
120 days after the
agency
[
executive director
] approves
the application. An applicant who has received a denial [
without prejudice
] may reapply for a license. The
agency
[
executive director
] may extend the 120-day examination period upon written request by
the applicant and for good cause.
examination
] fee required by §334.423 of
this title (relating to Fee Assessments for License A and License B), the
agency
[
executive director
] shall inform the applicant within
30 days of receipt of the application as to whether the application has been
approved. The
agency
[
executive director
] shall notify
each applicant of the designated dates, times, and places of the examinations
as required by §334.419 of this title (relating to License A and License
B Examination).
executive director
].
underground storage tanks
] including, but not limited to:
executive director
]
shall offer and proctor the appropriate examination at a designated time and
place. The examination shall be offered with increased frequency whenever
more than
ten
[
10
] persons petition the
agency
[
executive director
] in writing.
executive director
] in writing
requesting that an oral examination be administered. The
agency
[
executive director
] may consider substituting an oral examination
for a written examination. An applicant petitioning for such examination must
demonstrate to the
agency
[
executive director
] that
the written examination would not provide a fair and equal test of the applicant's
knowledge of
UST
[
underground storage tank
] installation,
repair, and removal.
executive director
]
shall notify an applicant of the results of the examination within 30 days
of the administration of the examination.
commission's
]
office during normal business hours for the purpose of assessing the accuracy
of the grading.
executive director
]
furnish the applicant with an analysis of the applicant's performance.
on each specific
UST category
] of the examination as described in subsection (a) of this
section.
executive director
] shall issue the
appropriate license to the applicant.
executive director
]
shall issue a wallet size card indicating the expiration date of the license.
executive director
] upon
payment of the fee required by §334.423 of this title (relating to Fee
Assessments for License A and License B).
executive director
]
shall notify each licensee in writing of the impending license expiration
at least 60 days before the expiration. The
agency
[
executive
director
] shall furnish application forms for license renewal.
executive director
] 30 days
prior to expiration. The application must be accompanied by the following:
evidence satisfactory
to demonstrate
] compliance with the continuing education requirements
of this section; and
The current
license shall be valid until the executive director notifies the applicant
of renewal or denial of the submitted renewal application provided a properly
completed application for renewal was submitted at least 30 days prior to
the expiration date of the license.
]
executive director
] shall issue a wallet
size card indicating the expiration date of the license.
The renewal applicant for License A shall
complete at least eight hours of continuing training and education courses
prior to renewal of the license.
]
(h)
(i)
] The training and educational
courses required in
subsection
[
subsections
] (g) [
and (h)
] of this section shall be approved by the
agency
[
executive director
] and sponsored by educational or governmental
institutions or recognized organizations including, but not limited to, the
following:
j
] The renewal application shall
submit a certificate of completion for the appropriate training and education
courses required in
subsection
[
subsections
] (g) [
and (h)
] of this section. The certificate shall be dated and signed
by the designated sponsor's representative.
executive director
] shall deny the
issuance of a license or request for renewal based on the following factors,
including, but not limited to:
or
]
(5)
] for other cause(s)
which in the opinion of the executive director constitutes adequate ground(s)
for denial.
examination fee -- $50
];
initial license application fee -- $200
];
assessed
in accordance with Chapter 12 of this title (relating to Payment of Fees)
];
(c)
(d)
] A license renewal application
shall be considered late when received by the
agency
[
executive
director
] after the expiration date of the license and shall be subject
to a late renewal fee [
assessed in accordance with Chapter 12 of this
title
].
executive director
] in writing
within 30 days of any change to the application including, but not limited
to:
313
] of this title (relating to Edwards Aquifer).
Texas Air Control Board,
] Texas Department of Health, State Board
of Insurance (including state fire marshal), Railroad Commission of Texas,
Texas Department of Agriculture, State Comptroller, Texas Department of Public
Safety, Texas
Natural Resource Conservation
[
Water
]
Commission, and other federal, state, and local governmental agencies or entities
having appropriate jurisdiction.
underground storage tank
]
shall either be registered as
an
[
a
] UST contractor
pursuant to this subchapter, or be employed by a registered UST contractor.
executive director
];
Type of Hearing ].
Any hearing related to the suspension or revocation of a License A and
License B is subject to Administrative Procedure and Texas Register Act (Texas
Civil Statutes, Article 6252-13a).
]
Subchapter J. REGISTRATION OF CORRECTIVE ACTION SPECIALISTS AND PROJECT MANAGERS FOR PRODUCT STORAGE TANK REMEDIATION PROJECTS
LPST
] sites which are:
Statutory
] Exemptions for Underground
Storage Tanks ("USTs") and UST Systems) or §334.123 of this title (relating
to [
Statutory
] Exemptions for ASTs); or
Commission
] Exclusions for Underground
Storage Tanks ("USTs") and UST Systems) or §334.124 of this title (relating
to [
Commission
] Exclusions for ASTs);
Corrective Action Specialists
]
when the party claiming the exemption can show that corrective action services
were completed on or prior to October 1, 1994. Any corrective action service
commenced by a
corrective action specialist
[
Corrective Action
Specialist
] on or after October 1, 1994, is subject to the requirements
of this subchapter. Any corrective action service commenced by a
corrective
action specialist
[
Corrective Action Specialist
] prior to
October 1, 1994, which is still being performed on or after October 1, 1994,
is subject to the requirements of this subchapter.
Corrective Action Project Managers
] when the party claiming the exemption can show that corrective action
services were completed on or before January 1, 1995. Any corrective action
service commenced by a
corrective action project manager
[
Corrective Action Project Manager
] on or after January 1, 1995, is subject
to the requirements of this subchapter. Any corrective action service commenced
by a
corrective action project manager
[
Corrective Action
Project Manager
] prior to January 1, 1995, which is still being performed
on or after January 1, 1995, is subject to the requirements of this subchapter.
underground storage
tank
] permanent removal-from-service project conducted under the direct
supervision of an on-site supervisor licensed to remove
USTs
[
underground storage tanks
] under Subchapter I of this chapter [
(relating to Underground Storage Tank Contractor Registration and Installer
Licensing)
], and further subject to all appropriate requirements and
standards in this subchapter, including enforcement authority:
TWC
]
approval, excavation of contaminated soil when necessary for corrective action
at the LPST site of an amount not to exceed 300 cubic yards of compacted materials
(390 cubic yards of uncompacted materials) beyond the backfill unless specific
prior written authorization from the
agency
[
TWC
] is
granted for additional excavation yardage;
applicable Texas
Air Control Board regulations
]; and
commission
], or review the corrective action
reports. The tank owners or operators, their direct employees, parent companies,
or subsidiaries who conduct corrective action services are subject to all
provisions of this subchapter.
On or after September 1, 1995, a qualified
] professional engineer,
duly licensed to practice engineering
[
registered as an engineer
] in the State of Texas, may become
registered as a
corrective action project manager
[
Corrective
Action Project Manager
] by submitting a signed and sealed written request
to that effect to the
agency
[
commission
]. With said
written request, said engineer shall also provide a copy of his or her certificate
of registration
or licensure
as a professional engineer, and a
written statement from the Texas [
State
] Board of [
Registration
for
] Professional Engineers to the effect that the applicant is [
duly registered and
] currently
duly
licensed to practice
engineering in the State of Texas and that there is no indication that the
applicant is not qualified to perform corrective action.
Except as provided
in subsection (j) of this section, an
[
An
] engineer who obtains
registration as a
corrective action project manager
[
Corrective
Action Project Manager
] in this manner is subject only to the examination
requirements, continuing education requirements, fees, and disciplinary procedures
adopted by the Texas [
State
] Board of [
Registration for
]
Professional Engineers, [
except as provided by §334.11(c)(3)(A)
of this title (relating to Enforcement),
] and as such is generally exempt
from the requirements in this subchapter which apply to
corrective action
project managers
[
Corrective Action Project Managers
] in
the areas of examination, continuing education, fees and disciplinary procedures[
, except as provided by §334.11(c)(3)(A) of this title (relating to
Enforcement)
].
offered to be
] performed by[
, and performed by
]
or
be
coordinated by a [
natural
] person or entity registered
as a corrective action specialist; and
natural
] person registered as a corrective
action project manager;
commission
] pertaining to corrective action covered by this subchapter
must possess the signature of an authorized [
business
] representative
of the corrective action specialist and the corrective action project manager,
and the corrective action registration numbers for the corrective action specialist
and corrective action project manager;
LPST
] site must prominently display their corrective
action registration number and the executive director's LPST number for the
site on all LPST bids, proposals, offers, and drawings.
offer to
] perform any corrective
action
services
[
service
] covered by this subchapter
unless the person
performing
[
offering to perform
] the
service:
Interim
]
Reimbursement Program);
Notice of Corrective Action
]
under §334.455 of the title [
(relating to Notice to Owner or Operator)
].
natural
] person duly registered
under this subchapter as a corrective action project manager;
commission
] unless the person or entity making such representation
possesses a valid certificate of registration issued under this subchapter;
UST
] contractor or a licensed installer or on-site supervisor
pursuant to Subchapter I of this chapter (relating to Underground Storage
Tank Contractor Registration and Installer Licensing) shall represent that
they are authorized to perform any corrective action service covered by this
subchapter except as provided under §334.452(d) of this title (relating
to (Exemptions from Subchapter J) unless that person or entity is registered
as a corrective action specialist pursuant to this subchapter.
§334.11
of this title (relating to Enforcement)
].
Action Specialists
] and/or
corrective action project managers
[
Corrective
Action Project Managers
] may be held responsible and subject to enforcement
including administrative, civil, and/or criminal penalties for any violation
of this section or any other requirements of this subchapter by them or by
any other person performing corrective action services under their supervision
or coordination.
commission
].
Notice of
Corrective Action
] must be provided by the
corrective action specialist
[
Corrective Action Specialist
], in accordance with this
section for any corrective action services which are commenced on or after
October 1, 1994.
Interim
] Reimbursement Program) and
in accordance with the published
agency
[
TWC
] reimbursable
cost guidelines.
by
] the
agency
[
Texas Water Commission
] does not constitute endorsement, licensing, or promotion of any corrective
action specialist. Registration does not imply that the
agency
[
Texas Water Commission
] guarantees the quality of the work performed
or that the cost of the work may be reimbursed.
(relating to Interim Reimbursement Program)
] and the
agency's
[
Texas Water Commission's
] reimbursable cost guidelines. Charges
exceeding the amount determined as reimbursable for that particular work item
shall not be reimbursed by the
agency
[
commission
].
Corrective Action Specialist
] shall meet the following requirements.
the business
] representative's
name and title
, when the applicant is not an actual individual
;
business
] representative for any branch office that will be operating
under the issued certificate of registration;
financial assurance,
including
]:
evidence
] of comprehensive
general liability insurance designating the
Texas Natural Resource Conservation
Commission
[
Texas Water Commission, Petroleum Storage Tank Division,
] as the certificate holder in an amount of not less than $1 million
and of a type approved by the executive director; and
business
] representative; or
other evidence of financial assurance which is determined
by the executive director to be sufficient for the purposes of this section
];
LPST
] sites, but shall also include corrective actions conducted
pursuant to the Resource Conservation and Recovery Act [
(RCRA)
];
the Comprehensive Environmental Response, Compensation, and Liability Act
[
(CERCLA)
]; the Oil Spill Prevention and Response Act [
(OSPRA)
]; the Texas Water Code, Chapter 26; or any corrective action conducted
under the auspices of the Texas Water Commission, the General Land Office,
the Texas Railroad Commission, or the United States Environmental Protection
Agency. These statements shall also attest to the applicant's job reliability
and the client's satisfaction of performance. Such statements shall also include
a description of the type of corrective action services work including engineering,
geology, or hydrogeology which was performed by the applicant and the physical
address where the activity occurred; or
; or
]
(iii)
other documentation of quality of performance
which is determined by the executive director to be sufficient, pursuant to
this section.
]
notarized,
] completed application that contains a sworn statement from the applicant
attesting to the accuracy of the information provided to the executive director.
Corrective Action Project Manager
] shall meet the
following requirements
:
[
.
]
LPST
] sites, but shall also include relevant professional experience
derived while working in the oil and gas industry, and corrective actions
conducted pursuant to the Resource Conservation and Recovery Act [
(RCRA)
]; the Comprehensive Environmental Response, Compensation, and Liability
Act [
(CERCLA)
]; the Oil Spill Prevention and Response Act [
(OSPRA)
]; the Texas Water Code, Chapter 26; or any corrective action
conducted under the auspices of the Texas Water Commission, the General Land
Office, the Texas Railroad Commission, or the United States Environmental
Protection Agency. These statements shall also attest to the applicant's job
reliability and the client's satisfaction of performance. Such statements
shall also include a description of the type of corrective action services
including engineering, geology, or hydrogeology which was performed by the
applicant and the physical address where the activity occurred; or
(iii)
other documentation of quality of performance
which is determined by the executive director to be sufficient, pursuant to
this section.
]
Corrective Action
Project Manager
], the applicant shall qualify under either option in
subparagraph (A) or (B) of this paragraph:
paragraph
],
and passage of a registration examination prepared and administered by the
agency
[
commission
] or an entity authorized by the
agency
[
commission
], and a bachelor's degree from an accredited
college or university in a physical science, natural science, biological science,
environmental science, engineering, applied geography, or in a subject directly
relevant to the environmental field which is technical in focus. (For each
degree relied upon, the applicant shall include with the registration application
an original official transcript from the college or university where the degree
was taken.)
commission
] or an entity authorized by the
agency
[
commission
].
notarized,
] completed application that contains a sworn statement from the applicant
attesting to the accuracy of the information provided to the executive director.
administratively
] complete when
the executive director has received all the information required by §334.456
of this title (relating to Application for Certificate of Registration for
Corrective Action Specialist). An application for a certificate of registration
for a corrective action project manager is [
administratively
] complete
when the executive director has received all the information required by §334.457
of this title (relating to Application for Certificate of Registration for
Corrective Action Project Manager).
administrative
] completeness.
If
it is determined
[
he determines
] that the application
is not [
administratively
] complete, [
he shall inform
]
the applicant
shall be informed
in writing within 45 days of any
deficiency and
informed
[
inform the applicant
] what
additional information is required for processing. The applicant shall have
30 days from the date noted on the executive director's written comments to
submit the requested additional information. If the executive director does
not receive all of the information required within the 30 days prescribed,
review will cease
[
he shall cease his review
] and [
return
] the application
will be returned
to the applicant
[
without prejudice
]. An applicant whose application has been returned
under this subsection may reapply for a certificate of registration at any
time
by resubmitting a new application in accordance with §334.457
of this title
.
his
] application is [
administratively
] complete
including payment of the applicable fees
; and
(relating to Application
for Certificate of Registration for Corrective Action Specialist)
] or §334.457
of this title [
(relating to Application for Certificate of Registration
for Corrective Action Project Manager)
], as applicable.
annually
] as prescribed
in §334.460 of this title (relating to Renewal of Certificate of Registration
for Corrective Action Specialist and Registration for Corrective Action Project
Manager).
A
] person must complete a minimum of
32
[
16
] hours of continuing education instruction [
in order
]
to renew the registration [
each time it is due for renewal
].
(Sixteen hours of continuing education instruction hours are required for
the annual renewals during the designated period as prescribed in §334.460
of this title (relating to Renewal of Certificate of Registration for Corrective
Action Specialist and Registration for Corrective Action Project Manager)).
To
[
In order to
] count towards the required [
16
] hours, each hour of instruction used must have been completed
prior to
[
within the 12 months immediately preceding
] the
date on which
a completed application for renewal is submitted
[
he submits an administratively complete application for renewal
].
A single continuing education course may not be used for more than one renewal.
"Hours of instruction" as used in this section refers to actual time spent
in instruction, rather that credits assigned to a course.
In order to
] be counted toward
the continuing education requirement, each hour of instruction must be in:
an LPST
] site or
other types of relevant sites;
16
] hours.
a certificate
] of completion
for the training and education courses required by this section [
each
year
] with the application for renewal of registration. The
certificates
[
certificate
] of completion shall be dated and signed by
the designated provider.
Each
] certificate of registration
issued under this subchapter shall expire
two years
[
one year
] from the original date of issuance or
two years
[
one year
] from the last date of
expiration
[
renewal
].
An application for renewal of
registration for a Corrective Action Specialist is administratively complete
when the executive director has received an application for renewal on a form
provided by the executive director (which has been completed in a manner acceptable
to the executive director); documentation of financial assurance as required
by §334.456(2)(D) of this title (relating to Application for Certificate
of Registration for Corrective Action Specialist), except the documentation
of quality of performance required under §334.456(2)(E) of this title
(relating to Application for Certificate of Registration for Corrective Action
Specialist); and payment for applicable fees as provided by §334.467
of this title (relating to Fee Assessments for Certificates of Registration).
An application for renewal of registration for a Corrective Action Project
Manager is administratively complete when the executive director has received
an application for renewal on a form provided by the executive director, completed
in a manner acceptable to the executive director, and documentation of completion
of continuing education requirements for the applicant Corrective Action Project
Manager as required under §334.459 of this title (relating to Continuing
Education for Project Managers), and payment of applicable fees as provided
by §334.467 of this title (relating to Fee Assessments for Certificates
of Registration). If the applicant has already submitted all necessary information
to the executive director in a previous administratively complete application,
the information need not be duplicated by the applicant in order for the renewal
application to be administratively complete; provided that any applicable
information regarding financial assurance, continuing education or any other
information for previous applications must be current to the date of the filing
of the current renewal application in order for the application to be administratively
complete. A properly completed application for renewal shall be submitted
to the executive director 30 days prior to the expiration date. The renewal
application must be accompanied by all information needed for the application
to be administratively complete, including the required applicable information
regarding financial assurance, or any other information necessary for the
executive director to complete the renewal process.
]
If an administratively
complete application for renewal is submitted by the renewal applicant 30
days prior to the expiration date of the current registration, the current
registration shall remain valid until the executive director issues the renewed
certificate. If an administratively complete application for renewal is not
filed at least 30 days prior to the expiration date of the current registration
and the executive director has not processed the renewal application, the
current registration shall expire on its original expiration date, but the
registration may be renewed any time within one year of the expiration date.
Corrective action services performed after expiration, but before renewal,
shall be considered to have been performed without proper registration under
this subchapter.
]
does not apply
] for renewal of [
his
]
registration within
30 days
[
one year
] from the
expiration date,
[
date his previous registration expires, he must
submit
] all information required by §334.456 of this title [
(relating to Registration of Corrective Action Specialist)
]
must
be resubmitted
. If a corrective action project manager
has not
met all requirements
[
does not apply
] for renewal of [
his
] registration within
30 days
[
one year
] from
the
expiration date
[
date his previous registration expires,
he must submit
] all information required by §334.457 of this title
(relating to Registration of Corrective Action Project Manager)
must
be resubmitted
.
certificate of registration
] indicating the new expiration date.
he is seeking
], the application may be denied [
without prejudice
];
Interim
]
Reimbursement Program);
LPST
] site; or
or
]
(6)
] for any other cause
which in the opinion of the executive director constitutes reasonable grounds
for denial.
business
]
representative
as described in §334.456(2)(B) of this title (relating
to Application for Certificate of Registration for Corrective Action Specialist)
;
responsibility
]
required by §334.456(2)(D) of this title (relating to Application for
Certificate of Registration for Corrective Action Specialist) throughout the
period
during which
that [
such
] person performs activities
which require registration as a corrective action specialist under this subchapter.
A
] corrective action project manager is required to complete
the
[
16 hours of
] continuing education
requirement
as provided by §334.459 of this title (relating to Continuing Education
for Corrective Action Project Managers).
Texas Air Control Board,
] Texas Department of Health, State Board of Insurance, General Land
Office, Texas Commission on Fire Protection, the state fire marshal, Railroad
Commission of Texas, Texas Department of Agriculture,
State Comptroller
[
state comptroller
], Texas Department of Public Safety,
Texas
Natural Resource Conservation
[
Water
] Commission,
and other federal, state, and local governmental agencies or entities having
appropriate jurisdiction.
he
] knows or reasonably should have known to be false or deceptive,
whether the information is on:
or
]
Interim
]
Reimbursement Program);
LPST
] site; [
or
]
the
]
title (relating to Notice to Owner or Operator);
or
commission
] or any other governmental agency having applicable
jurisdiction;
his
] supervision
or coordination
of a corrective action specialist
has performed
corrective action or disposed of soils, tank systems, wastes, or other materials
generated by corrective action in a manner prohibited by applicable state,
local, or federal laws; [
or
]
his
] supervision or coordination
of a corrective action specialist,
violates any requirement or prohibition of this subchapter;
or
he
] knows or reasonably should have known to be false or
deceptive, whether the information is on:
or
]
(relating to Interim Reimbursement
Program)
];
or
]
the
]
title [
(relating to Notice to Owner or Operator)
];
or
commission
] or any other governmental agency having applicable
jurisdiction;
his
] supervision
of a corrective action project manager,
has performed corrective action or disposed of soils, tank systems,
wastes, or other materials generated by corrective action in a manner prohibited
by applicable state, local, or federal laws; [
or
]
his
] supervision or coordination
of a corrective action project
manager,
violates any requirement or prohibition of this subchapter;
or
commission
] constitutes reasonable grounds for suspension
or revocation.
337
] of this title (relating to Enforcement) shall be
followed to revoke or suspend a certification of registration under this subchapter.
90 days for a first suspension,
six months
] for a
first
[
second
] suspension, and
permanent revocation for a
second
[
third
] suspension;
commission
] by law.
executive director
] shall notify the certificate holder of the
registration's reinstatement at least
ten
[
10
] days
prior the expiration of the suspension period.
commission
]
may
[
must
] file a new application for registration
under this subchapter
following the period of revocation
. A corrective
action project manager whose certificate of registration is revoked will be
subject to the same continuing education requirements as a new registrant
under §334.457 of this title [
(relating to Application for Certificate
of Registration as Corrective Action Project Manager)
] at the time a
new application is filed.
Corrective Action Specialists
on or after September 1, 1995
]:
$200
];
annual
] renewal fee
:
[
- $175;
]
- assessed in accordance
with Chapter 12 of this title (relating to Payment of Fees)
]
:
[
;
]
Corrective Action Project
]
managers
,
except qualified
professional engineers who are
currently duly licensed to practice engineering in the State of Texas,
[
registered professional engineers
] as provided in §334.452(i)
of this title (relating to Exemptions From Subchapter J):
$100
];
annual
] renewal fee
:
[
- $75;
]
- assessed
in accordance with Chapter 12 of this title;
]
executive director
] after the
expiration date of the certificate and shall be subject to the late renewal
fee.
Subchapter K. STORAGE, TREATMENT, AND REUSE PROCEDURES FOR PETROLEUM-SUBSTANCE CONTAMINATED SOIL