30 TAC §§214.1 - 214.3
The Texas Natural Resource Conservation Commission (commission)
proposes new Chapter 214, Secondary Containment Requirements for Underground
Storage Tank Systems Located Over Certain Aquifers, §§214.1 - 214.3.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The purpose of the proposed rules is to implement House Bill (HB) 2912,
Article 13, §13.01 and Article 18, §18.13, 77th Legislature, 2001.
House Bill 2912 adds Texas Water Code (TWC), §26.3476, Secondary Containment
Required For Tanks Located Over Certain Aquifers. Texas Water Code, §26.3476,
specifies that an underground storage tank (UST) system, at a minimum, shall
incorporate a method for secondary containment if the system is located in
the outcrop of a major aquifer composed of limestone and associated carbonate
rocks of Cretaceous age or older; and a county that has a population of at
least one million and relies on groundwater for at least 75% of the county's
water supply or has a population of at least 75,000 and is adjacent to a county
that has a population of at least one million and relies on groundwater for
at least 75% of the county's water supply.
Texas Water Code, §26.3476, applies only to a UST system that is installed,
upgraded, or replaced on or after September 1, 2001 and applies only to the
outcrop of the Edwards (Balcones Fault Zone) and Trinity aquifers in northern
Bexar and Comal Counties as defined by the Texas Water Development Board (TWDB).
For the limited areas where it is unclear as to which agency rules are applicable
(30 TAC Chapter 213 concerning Edwards Aquifer, the proposed Chapter 214 rules,
or the statewide 30 TAC Chapter 334 rules concerning Underground and Aboveground
Storage Tanks), the executive director will make a determination on a case-by-case
basis.
SECTION BY SECTION DISCUSSION
Proposed new §214.1 sets forth the purpose of the chapter by providing
the requirements for secondary containment for UST systems in certain aquifers.
Proposed new §214.2 sets forth and defines terms used in the chapter.
Where the statute did not define terms, the commission relied on definitions
in 30 TAC Chapter 334; Title 40 Code of Federal Regulations (CFR) Part 280
of the United States Environmental Protection Agency (EPA) rules; and on standard
geologic terms and definitions. The proposed definition for "Ancillary equipment"
is identical to that which appears in §334.2 and clarifies what is included
as part of a UST system. The proposed definition for "Existing UST system"
is identical to that which appears in §334.2 and is needed to clarify
when a UST system is considered to be existing and subject to being "upgraded."
A definition for "major aquifer" is proposed to be included as new §214.2(3)
as this term is included but not defined in statute. The TWDB has been given
the authority to define aquifers in the state under TWC, Chapter 16 and has
mapped the outcrop and regional extent of major aquifers within the state.
They have defined a major aquifer as supplying large quantities of water in
large areas of the state. The proposed definition for "New UST system" is
identical to that which appears in §334.2 and is needed to clarify when
a UST system is considered to be new by definition and subject to being "upgraded"
under the requirements of this chapter. The proposed definition for "Outcrop"
is included to define the geographic area within a major aquifer which is
subject to the secondary containment requirements. These areas are mapped
by the TWDB and define the area where the aquifer is exposed at the land surface.
The proposed definition for "Replaced" clarifies that the UST system which
replaces one which is permanently removed from service is subject to the secondary
containment requirements of this chapter. The proposed definition for "Secondary
containment" reflects the statutory definition in TWC, §26.3476(a). The
definition in the statute provides examples of what secondary containment
systems include. For further clarification, other secondary containment devices
such as containment boots, sumps, and jackets are also included in the definition.
The proposed definition for "Underground storage tank (UST)" is identical
to that which appears in §334.2 and defines the components that are considered
part of a UST. The proposed definition for "Underground storage tank (UST)
system" is identical to the definition contained in 40 CFR Part 280. The proposed
definition of UST system in §334.2 applies only to new UST systems installed
on or after September 29, 1989. Any new UST system installed after December
22, 1988 and before September 29, 1989 would not be covered under the Chapter
334 rules. Therefore, to ensure that this rule covers all new UST systems
installed after December 22, 1988, EPA's definition of UST system in 40 CFR §280.12
is used. The proposed definition for "Upgraded" clarifies when a UST system
is subject to secondary containment requirements.
Proposed new §214.3 sets forth the applicability of the chapter. These
rules are additional requirements beyond those in 30 TAC Chapter 213 and Chapter
334 and apply to USTs which are installed, upgraded, or replaced on or after
September 1, 2001. The geographic area and aquifers where these rules apply
is defined.
FISCAL NOTE: COST 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 rules are
in effect, there will be fiscal implications, which are not anticipated to
be significant, for units of state and local government due to administration
and enforcement of the proposed rules. Units of government that install, upgrade,
or replace a UST system on or after September 1, 2001 over certain major aquifers
will have to ensure that a secondary containment system is incorporated into
that system. The commission estimates the additional cost to install a secondary
containment system will be approximately $13,000 per facility. Underground
storage tank systems not located in the affected areas of this rulemaking
would not be affected by the proposed rules. Additionally, units of state
and local government that do not own or operate USTs would not be affected
by the proposed rules.
This rulemaking is intended to implement certain provisions of HB 2912
(an act relating to the continuation and functions of the commission; providing
penalties), 77th Legislature, 2001. The bill requires UST systems that are
installed, upgraded, or replaced on or after September 1, 2001 to incorporate
a method of secondary containment if the system is located in the outcrop
of certain major aquifers. A secondary containment system consists of a secondary
wall, or barrier installed around the primary storage vessel to prevent a
release from migrating beyond the secondary wall or barrier before the release
can be detected.
In order to be affected by this rulemaking, the UST system would have to
be located in the outcrop of a major aquifer composed of limestone and associated
carbonate rocks of Cretaceous age or older that is located in a county that
has a population of at least one million and relies on groundwater for 75%
of the county's water supply. Underground storage tank systems located in
major aquifers located in a county that has a population of at least 75,000
and is adjacent to a county that has a population of at least one million
and relies on groundwater for 75% of the county's water supplies would also
be affected by the proposed rules. Based on the requirements of the bill,
the commission anticipates that only USTs located in the outcrop of the Trinity
and Edwards (Balcones Fault Zone) aquifers in northern Bexar and Comal Counties
will be affected by the proposed rules.
There are at least 267 existing facilities, some of which may be owned
by units of state and local government, located in the affected areas that
would be affected by the proposed rules. These systems would not be required
to install a secondary containment system unless the storage tanks are upgraded,
installed, or replaced in the future. There may be UST systems in the affected
areas that are not currently in compliance with commission regulations that
would have to be replaced and upgraded with a secondary containment system.
For any unit of state or local government that decides to install, upgrade,
or replace a UST system in areas affected by this rulemaking, the installation
of a secondary containment systems will cost approximately $13,000 more per
facility compared to single-wall UST systems.
PUBLIC BENEFITS AND COSTS
Mr. Davis also has 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 increased environmental
protection over certain major aquifers by requiring new, upgraded, or replaced
USTs to utilize secondary containment systems.
This rulemaking is intended to implement certain provisions of HB 2912,
77th Legislature, 2001, which requires UST systems that are installed, upgraded,
or replaced on or after September 1, 2001 to incorporate a method of secondary
containment if the system is located in certain major aquifers. A secondary
containment system consists of a secondary wall, or barrier installed around
the primary storage vessel to prevent a release from migrating beyond the
secondary wall or barrier before the release can be detected.
In order to be affected by this rulemaking, the UST system would have to
be located in the outcrop of a major aquifer composed of limestone and associated
carbonate rocks of Cretaceous age or older that is located in a county that
has a population of at least one million and relies on groundwater for 75%
of the county's water supply. Underground storage tank systems located in
major aquifers located in a county that has a population of at least 75,000
and is adjacent to a county that has a population of at least one million
and relies on groundwater for 75% of the county's water supplies would also
be affected by the proposed rules. Based on the requirements of the bill,
the commission anticipates that only USTs located in the outcrop of the Edwards
(Balcones Fault Zone) and Trinity aquifers in northern Bexar and Comal Counties
will be affected by the proposed rules.
There are at least 267 existing UST facilities, many of which are owned
by individuals and businesses located in the affected areas that would be
affected by the proposed rules. These systems would not be required to install
a secondary containment system unless the storage tanks were upgraded or replaced
in the future. There may be other UST systems in the affected areas that are
not currently in compliance with commission regulations that would have to
be replaced and upgraded with a secondary containment system. For any individual
or business that decides to install, upgrade, or replace a UST system in areas
affected by this rulemaking, the installation of a secondary containment system
will cost approximately $13,000 more per facility system compared to a single-wall
system.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be adverse fiscal implications to small or micro-business that
own or operate UST systems in the outcrop of the Trinity and Edwards (Balcones
Fault Zone) aquifers that have to utilize a secondary containment system to
comply with the proposed rules. This rulemaking is intended to implement certain
provisions of HB 2912, 77th Legislature, 2001, which requires UST systems
that are installed, upgraded, or replaced on or after September 1, 2001 to
incorporate a method of secondary containment if the system is located in
certain major aquifers. A secondary containment system consists of a secondary
wall, or barrier installed around the primary storage vessel to prevent a
release from migrating beyond the secondary wall or barrier before the release
can be detected.
In order to be affected by this rulemaking, the UST system would have to
be located in the outcrop of a major aquifer composed of limestone and associated
carbonate rocks of Cretaceous age or older that is located in a county that
has a population of at least one million and relies on groundwater for 75%
of the county's water supply. Underground storage tank systems located in
major aquifers located in a county that has a population of at least 75,000
and is adjacent to a county that has a population of at least one million
and relies on groundwater for 75% of the county's water supplies would also
be affected by the proposed rules. Based on the requirements of the bill,
the commission anticipates that only USTs located in the outcrop of the Edwards
(Balcones Fault Zone) and Trinity aquifers in northern Bexar and Comal Counties
will be affected by the proposed rules.
There are at least 267 existing UST facilities, the majority of which are
owned by small or micro-businesses, located in the affected areas that would
be affected by the proposed rules. These systems would not be required to
install a secondary containment system unless the storage tanks were upgraded
or replaced in the future. There may be other UST systems in the affected
areas that are not currently in compliance with commission regulations that
would have to be replaced and upgraded with a secondary containment system.
For any small or micro-business that decides to install, upgrade, or replace
a UST system in areas affected by this rulemaking, the installation of a secondary
containment system will cost approximately $13,000 more per facility compared
to a single-wall system.
The following is an analysis of the cost per employee for a small or micro-business
to comply with the proposed rulemaking. A small business is defined as a business
with 100 or fewer employees, while a micro-business is defined as having fewer
than 20 employees. If a small business decides to upgrade a UST in an area
affected by this rulemaking, it would cost an additional $100 per employee
to comply with the proposed rules. If a micro-business decides to upgrade
a UST in an area affected by this rulemaking, it would cost an additional
$500 per employee to comply with the proposed rules.
LOCAL EMPLOYMENT IMPACT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in affect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.225, 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.
A major environmental rule is one 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 rulemaking implements HB 2912, Article 13, §13.01
and Article 18, §18.13. These sections specify that any person that installs,
upgrades, or replaces a UST system on or after September 1, 2001 over certain
major aquifers will have to ensure that a secondary containment system is
incorporated into the system. The proposed rules are intended to provide increased
environmental protection over certain major aquifers by requiring new, upgraded,
or replaced USTs to use secondary containment systems. Based on the requirements
of the bill, the commission anticipates that only USTs located in the outcrop
of the Edwards Balcones Fault Zone and Trinity aquifers in northern Bexar
and Comal Counties will be affected by the proposed rules. The fiscal analysis
indicates that there will be adverse fiscal implications to small or micro-business
that own or operate UST systems in the outcrop of the Trinity and Edwards
(Balcones Fault Zone) aquifers that have to utilize a secondary containment
system to comply with the proposed rules; however, it will not affect this
sector of the economy in a material way. There are at least 267 existing UST
facilities, the majority of which are owned by small or micro-businesses,
located in the affected areas; however, these systems would not be required
to install a secondary containment system unless the storage tanks were upgraded
or replaced subsequent to the effective date of the rules. As such, these
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 sector of the state.
Even if this met the definition of a major environmental rule, §2001.0225
only applies to a major environmental rule the result of which is to: exceed
a standard set by federal law, unless the rule is specifically required by
state law; exceed an express requirement of state law, unless the rule is
specifically required by federal law; exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program; or adopt
a rule solely under the general powers of the agency instead of under a specific
state law. This rulemaking does not meet any of these four applicability requirements
of a major environmental rule. There are no equivalent standards set by federal
law for secondary containment requirements in certain aquifers provided in
HB 2912. This rule is specifically required by state law. This rulemaking
does not exceed an express requirement of state law because this rulemaking
specifically implements HB 2912, Article 13, §13.01 and Article 18, §18.13,
77th Legislature, 2001. The rulemaking does not exceed a requirement of a
delegation agreement. Also, the rulemaking was not developed solely under
the general powers of the agency, but was specifically authorized under TWC, §26.3476.
The commission invites public comment on the draft regulatory impact analysis.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and analyzed whether the
proposed rules are subject to Texas Government Code, §2007.003 and §2007.043.
Texas Government Code, Chapter 2007, relating to governmental action affecting
private property rights does not apply to actions taken by the government
that are: 1) reasonably taken in response to a real and substantial threat
to public health and safety; 2) designed to significantly advance the health
and safety purpose; and 3) do not impose a greater burden than is necessary
to achieve the health and safety purpose (Texas Government Code, §2007.003(13)).
This rulemaking is proposed to implement HB 2912, which provides increased
environmental protection to certain aquifers by requiring secondary containment
systems for UST systems that are installed, replaced, or upgraded after September
1, 2001 in northern Bexar and Comal Counties. Legislative history indicates
that this statute was enacted because there was concern that aquifers, which
are an important source of drinking water, are not adequately protected. Bill
analyses for these provisions also indicate that these requirements were introduced
to address spills such as the one that took place at a gas station in July
1999, that caused more than 800 gallons of gasoline to spill into the Trinity
Aquifer in Bexar County. Fiscal analysis indicates that there are at least
267 existing UST facilities, the majority of which are owned by small or micro-businesses,
located in the affected areas; however, these systems would not be required
to install a secondary containment system unless the storage tanks were upgraded
or replaced. By applying only to UST systems that are installed, replaced,
or upgraded after September 1, 2001, the proposed rules do not impose a greater
burden than is necessary to significantly advance the health and safety purpose.
Based on this assessment, this rulemaking action will not constitute a
takings under Texas Government Code, Chapter 2007. The commission invites
public comment on the draft takings impacts assessment.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has prepared a consistency determination for the proposed
rules under to 31 TAC §505.22, and has found that the proposed rulemaking
is consistent with the applicable Texas Costal Management Program (CMP) goals
and policies. The rulemaking is subject to the CMP and must be consistent
with applicable 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 in Coastal Natural Resource Areas (CNRAs). This proposed rulemaking
implements HB 2912, §13.01 and §18.13. The proposed rules do not
govern any of the activities that are within the designated coastal zone management
area or otherwise specifically identified under the Texas Coastal Management
Act or related rules of the Coastal Coordination Council. Interested persons
may submit comments on the consistency of the proposed rules with the CMP
during the public comment period.
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., March
15, 2002, and should reference Rule Log Number 2001-100-214-WS. For further
information, please contact Michael Bame, Policy and Regulations Division,
at (512) 239-5658.
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;
and TWC, §5.105, which authorizes the commission to establish and approve
all general policy of the commission by rule.
The proposed new sections implement TWC, §26.3476, as adopted by the
Texas Legislature in HB 2912, Article 13, §13.01 and Article 18, §18.13,
77th Legislature, 2001.
§214.1.Purpose.
The purpose of this chapter is to provide requirements for secondary
containment for underground storage tank systems located over certain aquifers
to protect and maintain the quality of groundwater resources in the state
from environmental contamination that could result from releases of harmful
substances stored in such tanks.
§214.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings and supercede the definitions in Chapter 334 of this
title (relating to Underground and Aboveground Storage Tanks), unless the
context clearly indicates otherwise.
(1)
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 underground storage tank (UST), including, but not limited
to, piping, fittings, flanges, valves, and pumps.
(2)
Existing UST system--A UST system which is used or designed
to contain an accumulation of regulated substances for which installation
either had commenced prior to December 22, 1988, or had been completed on
or prior to December 22, 1988. Installation will be considered to have commenced
if the owner or operator had 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 begun or the owner or operator had entered into
contractual obligations (which could not be canceled or modified without substantial
loss) which required that the physical construction at the site or installation
of the tank system was to be completed within a reasonable time.
(3)
Major aquifer--An aquifer defined by the Texas Water Development
Board (TWDB) as supplying large quantities of water in large areas of the
state.
(4)
New UST system--A UST system which is used or designed
to contain an accumulation of regulated substances for which installation
commenced after December 22, 1988; or a UST system which is converted from
the storage of materials other than regulated substances to the storage of
regulated substances after December 22, 1988.
(5)
Outcrop--The surface extent of a major aquifer as mapped
by the TWDB in which the host geologic formations are exposed at the land
surface or overlain by alluvial or soil covers.
(6)
Replaced--The permanent removal from service (in accordance
with all applicable requirements of Chapter 334 of this title) of a UST system
and the installation of any replacement UST system in accordance with all
applicable requirements of this chapter and Chapter 334 of this title.
(7)
Secondary containment--A method by which a secondary wall
or barrier is installed around a UST system in a manner designed to prevent
a release of a regulated substance from migrating beyond the secondary wall
or barrier before the release can be detected. A secondary containment system
may include an impervious liner, jacket, containment boot, sump, or vault
surrounding a primary tank or piping system or a double-wall tank or piping
system.
(8)
Underground storage tank (UST)--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.
(9)
Underground storage tank (UST) system--A UST, connected
underground piping, underground ancillary equipment, and containment system,
if any.
(10)
Upgraded--
(A)
The addition, improvement, retrofitting, or renovation
of an existing UST system with equipment or components as required to initially
meet upgrading requirements with regard to corrosion protection, spill and
overfill prevention, and release detection as specified in Chapter 334 of
this title.
(B)
The addition, improvement, retrofitting, or renovation
of a new UST system with equipment or components as required to bring that
system into initial compliance with the installation requirements which were:
(i)
applicable after December 22, 1988 and before September
29, 1989 under EPA rules (40 Code of Federal Regulations Part 280); or
(ii)
applicable on or after September 29, 1989 under Chapter
334 of this title.
§214.3.Applicability.
(a)
The rules in this chapter provide secondary containment
requirements for underground storage tank (UST) systems that are in accordance
with and in addition to the requirements prescribed by Chapter 334 of this
title (relating to Underground and Aboveground Storage Tanks) and where applicable,
Chapter 213 of this title (relating to Edwards Aquifer).
(b)
A UST system which is installed, upgraded, or replaced
on or after September 1, 2001, shall, at minimum, incorporate a method for
secondary containment if that system is located in:
(1)
the outcrop of a major aquifer composed of limestone and
associated carbonate rocks of Cretaceous age or older; and
(2)
a county that:
(A)
has a population of at least one million and relies on
groundwater for at least 75% of the county's water supply; or
(B)
has a population of at least 75,000 and is adjacent to
a county described by subparagraph (A) of this paragraph.
(c)
Effective September 1, 2001, the requirements in subsection
(b)(1) of this section apply only to the outcrop of the Edwards (Balcones
Fault Zone) and Trinity aquifers as defined by the Texas Water Development
Board in Bexar and Comal Counties.
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 January 31, 2002.
TRD-200200594
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 239-4712