Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 15.
FLEET VEHICLE MANAGEMENT
30 TAC §15.1
The Texas Natural Resource Conservation Commission (commission)
proposes new Chapter 15, Fleet Vehicle Management, §15.1, Fleet Vehicle
Management.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The purpose of the proposed rule is to implement the requirements of House
Bill (HB) 3125, signed into law during the 76th Legislature, 1999. The bill
amended Texas Government Code, Title 10, Chapter 2171, by adding §2171.1045,
Restrictions on Assignment of Vehicles. This section requires state agencies
to adopt rules consistent with the fleet management plan developed by the
State Council on Competitive Government. The rule has been drafted to be consistent
with the intent and language of the bill.
The rule describes under what circumstances a commission vehicle may be
assigned to an individual. If the exceptions outlined in the rule are not
met, then the rule stipulates that each vehicle the commission owns must be
assigned to the commission motor pool.
SECTION BY SECTION DISCUSSION
Chapter 15, Fleet Vehicle Management, is added to 30 TAC.
New proposed §15.1(a) establishes that each vehicle will be assigned
to the commission's motor pool and will be available to be checked out.
New proposed §15.1(b) establishes the exceptions to §15.1(a).
Specifically, a vehicle may be assigned to a field employee or the executive
director (ED) may assign a vehicle to an employee on a regular basis only
if the ED finds and documents in writing that the regular assignment is critical
to the needs and mission of the commission.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed rule is in
effect, there will be no significant fiscal implications for units of state
and local government as a result of administration or enforcement of the proposed
rule.
The proposed rule is intended to implement certain provisions of HB 3125,
76th Legislature, 1999, which require state agencies to adopt rules consistent
with the fleet management plan adopted by the Office of Vehicle Fleet Management.
The proposal would require all commission vehicles, except for those assigned
to field personnel, to be assigned to the commission's motor pool and be available
for use. Commission divisions and offices could request to have vehicles assigned
to individuals on a regular or everyday basis only if a written request is
submitted and approved by the ED. This proposal is procedural in nature, and
the commission anticipates no significant fiscal implications to the commission
as a result of implementing the proposed rule.
PUBLIC BENEFIT AND COSTS
Mr. Davis also has determined that for each year of the first five years
the proposed rule is in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rule will be potentially more efficient
utilization and management of commission vehicles.
The proposal would require all commission vehicles, except for those assigned
to field personnel, to be assigned to the commission's motor pool and be available
for use. Commission divisions and offices could request to have vehicles assigned
to individuals on a regular or everyday basis only if a written request is
submitted and approved by the ED. The proposed rule only affects state agencies;
therefore, the commission anticipates no fiscal implications for individuals
and businesses.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse economic effects are anticipated to any small or micro-businesses
as a result of implementing the proposed rule. The proposal would require
all commission vehicles, except for those assigned to field personnel, to
be assigned to the commission's motor pool and be available for use. Commission
divisions and offices could request to have vehicles assigned to individuals
on a regular or everyday basis only if a written request is submitted and
approved by the ED. The proposed rule only affects state agencies; therefore,
the commission anticipates no fiscal implications for small or micro-businesses.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in 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 proposal does
not meet the definition of "major environmental rule" because the rulemaking
is not specifically intended to protect the environment or reduce risks to
human health from environmental exposure. This rulemaking proposes to adopt
state statutory requirements relating to vehicle fleet management as required
by Texas Government Code, §2171.1045. The commission invites public comment
on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rule and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. The
commission's preliminary assessment indicates that Texas Government Code,
Chapter 2007 does not apply to the proposed rule because this is an action
that is reasonably taken to fulfill an obligation mandated by state law, which
is exempt under Texas Government Code, §2007.003(b)(4). Nevertheless,
the commission further evaluated the proposed rule and performed a preliminary
assessment of whether the proposed rule constitutes a takings under Texas
Government Code, Chapter 2007. The following is a summary of that evaluation
and preliminary assessment. The specific purpose of the proposed rule is to
create new Chapter 15, Fleet Vehicle Management, to comply with state statutory
requirements relating to vehicle fleet management as required by Texas Government
Code, §2171.1045. The proposed rule would substantially advance this
stated purpose by requiring commission vehicles, except for vehicles assigned
to field employees, to be assigned to the commission motor pool. The proposed
rule would also require that prior to assigning a vehicle to an individual
administrative or executive employee on a regular basis, the ED shall make
a written documented finding that such assignment is critical to the needs
and mission of the commission. Promulgation and enforcement of the proposed
rule would be neither a statutory nor a constitutional taking of private real
property. Specifically, the subject proposed regulations do not affect a landowner's
rights in private real property because this rulemaking does not burden (constitutionally);
nor restrict or limit the owner's right to property and reduce its value by
25% or more beyond that which would otherwise exist in the absence of the
regulations. In other words, no private property will be affected in any way
by this rule. The rule will place restrictions only on the assignment of state
property, specifically state vehicles. There are no burdens imposed on private
real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
rule is neither identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas
Coastal Management Program (CMP), nor will it affect any action/authorization
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11.
Therefore, the proposed rule is not subject to 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
2001-004-015-AD. Comments must be submitted by 5:00 pm on May 21, 2001. For
further information, please contact Kathy Ramirez, Office of Environmental
Policy, Analysis, and Assessment, (512) 239-6757.
STATUTORY AUTHORITY
The new section is proposed under Texas Water Code (TWC), §5.103,
which provides the commission with the authority to adopt rules necessary
to carry out its powers and duties under this code and other laws of this
state. The proposed new section is also authorized by Texas Government Code, §2171.1045,
which requires a state agency to adopt the vehicle fleet management rules.
The proposed new section implements TWC, §5.103, relating to Rules.
The proposed new section also implements Texas Government Code, §2171.1045,
relating to Restrictions on Assignment of Vehicles.
§15.1.Fleet Vehicle Management.
(a)
Requirements--each commission vehicle shall be assigned
to the commission motor pool and shall be available for checkout, except as
provided in subsection (b) of this section.
(b)
Exceptions--vehicles that meet the criteria in paragraphs
(1) and (2) of this subsection are excepted from subsection (a) of this section:
(1)
a vehicle assigned to a field employee; or
(2)
a vehicle assigned to an individual administrative or executive
employee on a regular or everyday basis if the executive director makes a
written documented finding that the assignment is critical to the needs and
mission of the commission.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on April 6, 2001.
TRD-200102007
Margaret Hoffman
Director Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 21, 2001
For further information, please call: (512) 239-4712
The Texas Natural Resource Conservation Commission (commission) proposes
amendments to Chapter 334, Subchapter C, Technical Standards, §334.54,
Temporary Removal From Service; Subchapter J, Registration of Corrective Action
Specialists and Project Managers for Product Storage Tank Remediation Projects, §334.460,
Renewal of Certificate of Registration for Corrective Action Project Manager;
and Subchapter K, Storage, Treatment, and Reuse Procedures For Petroleum-
Substance Contaminated Soil, §334.503, Reuse of Petroleum-Substance Waste.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The proposed rules would correct errors that were made in the major Chapter
334 rulemaking as published in the June 2, 2000 issue of the
Texas Register
(25 TexReg 5152), which culminated in a rule package
that went into effect November 23, 2000. The corrections remove internal inconsistencies
from each rule section at issue so that they will function as intended and
remove confusion concerning the proper requirements under the rules.
SECTION BY SECTION DISCUSSION
Subchapter C. Technical Standards.
Section 334.54, Temporary Removal from Service, is proposed to be amended.
At the proposal stage of the recent major Chapter 334 rulemaking, §334.54(d)
and (e) was published correctly in the June 2, 2000 issue of the
Texas Register
(25 TexReg 5152). At the adoption stage, no public comment
was received on this language and the commission intent was to adopt these
rule subsections with the same language as at the proposal stage. While the
fact that the language was not meant to change from proposal was reflected
in the text of the adoption as published in the November 17, 2000 issue of
the
Texas Register
(25 TexReg 11442), the
actual rule text adopted at the commission's November 1, 2000 agenda was incorrect
due to an administrative error. Language in §334.54(d)(1) - (3) that
was to be deleted was instead maintained, and the proposed language for that
same subsection was deleted. The proposed amendment would correct this error,
so §334.54(d)(1) would read "All regulated substances have been removed
as completely as possible by the use of commonly-employed and accepted industry
procedures." Section 334.54(d)(2) would read "Any residue from stored regulated
substances which remains in the system (after the completion of the substance
removal procedures under paragraph (1) of this subsection) shall not exceed
a depth of 2.5 centimeters at the deepest point and shall not exceed 0.3%
by weight of the system at full capacity." Section 334.54(d)(3) would read
"The volume or concentration of regulated substances remaining in the system
would not pose an unreasonable risk to human health and safety or to the environment
if a release occurs during the period when the system is temporarily out of
service."
Correcting the errors in §334.54 would restore the provisions which
define the term "empty system" as it applies to temporarily out-of-service
tanks. This should in turn reduce the likelihood of contamination because,
without those provisions, excessive amounts of regulated substances or residues
could leak into the environment after being left for extended periods in an
unmonitored out-of-service tank. This contamination can have adverse effects
on human health and safety through its entrance into public water supplies,
private water wells, utility spaces, etc. Making the rule clear and enforceable
concerning the term "empty system" should increase the compliance rate with
the rule.
Subchapter J. Registration of Corrective Action
Specialists and Project Managers for Product Storage Tank Remediation Projects.
Section 334.460, Renewal of Certificate of Registration for Corrective
Action Specialist and Corrective Action Project Manager, is proposed to be
amended. Among the amendments made to this rule section during the recent
Chapter 334 rulemaking were changes concerning a transition from a one-year
to a two-year certificate renewal schedule. Section 334.460(a) contained language
intended to explain how the transition period would work. Due to ambiguous
sentence construction, there has been confusion concerning the last sentence
in this subsection. Section 334.460(a) is proposed to be amended so that,
in the last sentence, the word "issued" will be changed to "renewed"; the
word "subchapter" would be changed to "section"; and the phrase "original
date of issuance or two years from the" would be deleted, such that the final
sentence would read "Following this designated period, each certificate of
registration renewed under this section shall expire two years from the last
date of expiration." This change would greatly clarify the intent of the rule.
Section 334.460(f)(2) is proposed to be amended to correct a typographical
error in the second sentence in this subparagraph, the number of days has
been amended to read "30" rather than "60." This correction would make the
paragraph consistent with the remainder of the rule section and thus clarify
the section as a whole. Since the certificate is required by law for certain
corrective action activities to be performed, it is vital to these contractors
that there be a clear procedure for the timelines associated with license
renewal. Correcting the errors will remove the internal inconsistency from
the rule and thus ensure a predictable timeline. This also reduces the chances
that a member of the public would hire such a contractor, only to find that
his certificate was not in effect for part of the corrective action project
(which could have implications for monetary reimbursements from the Petroleum
Storage Tank Reimbursement Fund for the party hiring the contractor).
Subchapter K, Storage, Treatment, and Reuse Procedures
For Petroleum-Substance Contaminated Soil.
Section 334.503, Reuse of Petroleum-Substance Waste, is proposed to be
amended. Section 334.503(c)(3)(E) concerns when it is appropriate for petroleum
substance-waste to be used as fill and gives procedures for how this is determined.
The current language could be read to give the mistaken impression that the
subparagraph is speaking to a status of the waste called "clean" as something
separate and apart from the appropriate use of the waste as fill. Consequently,
to clarify this rule consistent with its intent, the phrase in the first sentence
which reads "will be considered clean, and" is proposed to be deleted. Correcting
the error in this rule section should increase the compliance rate with the
rule. Exposure to this waste may have adverse impacts on human health and
safety, so it is vital that the proper procedures are followed for determining
how this waste may be used.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
determined that for the first five-year period the proposed rules are in effect,
there will be no fiscal impacts to units of state or local government as a
result of implementation of the proposed rules.
This rulemaking is intended to clarify petroleum storage tank (PST) program
rules adopted by the commission in November 2000 by correcting several errors
that create internal inconsistencies in the rule sections at issue. This proposal
is administrative in nature and correcting these errors does not introduce
any additional regulatory requirements; therefore, the commission anticipates
no fiscal implications for units of state or local government that own or
operate tanks regulated in the PST program.
PUBLIC BENEFIT AND COSTS
Mr. Davis 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 would be increased compliance with
commission regulations and protection of the environment and human health
due to clarification of adopted PST program rules.
This rulemaking is intended to clarify PST program rules adopted by the
commission in November 2000 by correcting several errors that create internal
inconsistencies in the rule sections at issue. This proposal is administrative
in nature and correcting these errors does not introduce any additional regulatory
requirements; therefore, the commission anticipates no fiscal implications
for individuals and businesses that own or operate tanks regulated in the
PST program.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal implications for small or micro-businesses
as a result of implementation of the proposed rules, which are intended to
clarify PST program rules adopted by the commission in November 2000 by correcting
several errors that create internal inconsistencies in the rule sections at
issue. Correcting these errors does not introduce any additional requirements
from the rules adopted in November 2000.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
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 rules 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 rules are intended to simply correct errors from the recently
completed Chapter 334 rulemaking. Correction of these errors would remove
internal inconsistencies from these rule sections and thus make them easier
to read and understand.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this proposal
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purpose of this rulemaking is simply to correct
errors from the recently completed Chapter 334 rulemaking (which became effective
November 23, 2000). Correction of these errors would remove internal inconsistencies
from these rule sections and thus make them easier to read and understand.
This action will not create a burden on private real property, and will not
burden, restrict, or limit an owner's right to property. The corrections in
this rulemaking also will not be the cause of a reduction in market value
of private real property, and will not constitute a takings under the Texas
Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking for consistency with the Texas
Coastal Management Program (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council, and determined that the rulemaking
will not have direct or significant adverse effect on any Coastal Natural
Resource Areas, nor will the rulemaking have a substantive effect on commission
actions subject to 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. Comments must be received by 5:00 p.m., May 21,
2001, and should reference Rule Log Number 2001-010-334-WS. For further information,
please contact Michael Bame at (512) 239-5658.
Subchapter C. TECHNICAL STANDARDS
30 TAC §334.54
STATUTORY AUTHORITY
The amendment 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. The amendment
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 (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 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 amendment implements TWC, Chapter 26, Subchapter I, Underground
Storage Tanks.
§334.54.Temporary Removal from Service.
(a) - (c)
(No change.)
(d)
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 system shall be considered empty when the following provisions have been
met:
(1)
All regulated substances have been removed
as completely as possible by the use of commonly-employed and accepted industry
procedures.
[(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 Underground Storage Tank 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)
Any residue from stored regulated substances
which remains in the system (after the completion of the substance removal
procedures under paragraph (1) of this subsection) shall not exceed a depth
of 2.5 centimeters at the deepest point and shall not exceed 0.3% by weight
of the system at full capacity.
[(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)
The volume or concentration of regulated
substances remaining in the system would not pose an unreasonable risk to
human health and safety or to the environment if a release occurs during the
period when the system is temporarily out of 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 (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), §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).]
(e)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 6, 2001.
TRD-200102004
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 21, 2001
For further information, please call: (512) 239-4712
Chapter 334.
UNDERGROUND AND ABOVEGROUND STORAGE TANKS
Subchapter J. REGISTRATION OF CORRECTIVE ACTION SPECIALISTS AND PROJECT MANAGERS FOR PRODUCT STORAGE TANK REMEDIATION PROJECTS