Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 290. PUBLIC DRINKING WATER
Subchapter D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS
30 TAC §§290.44, 290.46, 290.47
The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §§290.44, 290.46, and 290.47.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The primary purposes of the proposed amendments are to reflect changes to the Texas Health and Safety Code (THSC), §341.042 and §341.0357 made during the 80th Legislature, 2007, in §11 of House Bill (HB) 4, HB 1391, and §2.28 of Senate Bill (SB) 3.
HB 4, §11 and SB 3, §2.28 amend THSC, §341.042, Standards for Harvested Rainwater, by requiring the commission to establish rules for structures that are connected to a public water supply system and have a rainwater harvesting system for indoor use. The structure must have appropriate cross-connection safeguards, and the rainwater harvesting system may be used only for nonpotable indoor purposes. The commission's standards and rules adopted under THSC, Chapter 341, do not apply to a person who harvests rainwater for domestic use and whose property is not connected to a public drinking water supply system. However, these amendments do not change the commission's existing rules in §290.44(h) and §290.47(i) regarding backflow prevention.
HB1391 amends THSC, Chapter 341, Subchapter C, by adding §341.0357, Public Safety Standards. This bill requires that the regulatory authority for a public utility, as defined in TWC, §13.002(23), serving a residential area adopt public safety standards to maintain sufficient water pressure to fire hydrants in residential areas in a municipality with a population of one million or more. This section requires the commission to assess residential areas in a municipality with a population of one million or more to ensure that public safety standards are adopted by the regulatory authority for the area and that all public utilities serving the residential area are complying with the standards required by THSC, §341.0357. The appropriate standard will be determined by the governing body of the local regulatory authority on a site-specific basis dependent on the public water supply system design. The commission is proposing a minimum standard. The standard adopted by the local regulatory authority must meet or exceed this standard. The commission will require out-of-compliance regulated authorities and public utilities to comply within a reasonable time using its existing enforcement rules and policies.
SECTION BY SECTION DISCUSSION
The commission proposes to add §290.44(j), to implement THSC, §341.042, as amended by HB 4, §11 and SB 3, §2.28, 80th Legislature, 2007, to establish rules for structures that are connected to a public water supply system and have a rainwater harvesting system for indoor use, including that the rainwater harvesting system may be used only for nonpotable indoor purposes.
The commission proposes to add new §290.46(x) to meet the new public safety requirements from HB 1391. New subsection (x) includes the requirement that the regulatory authority for a public utility adopt standards for maintaining sufficient water pressure for service to fire hydrants adequate to protect public safety. In new subsection (x), the commission also proposes to add definitions for "regulatory authority," "public utility," and "residential area." These definitions are from TWC, §13.002(18) and (23) and THSC, §341.0357, respectively.
In accordance with HB 1391, subsection (x) only applies to municipalities with a population of 1,000,000 or more. The public safety standards only apply to "public utilities" as defined by TWC, §13.002 in residential areas inside the corporate limits of the municipality. The standards are designed to provide adequate flow to fire hydrants. The commission's proposed rule does not require a municipality to require that public utilities have fire hydrants in residential areas. The proposed rules would require public utilities that do have fire hydrants to maintain sufficient water pressure adequate to protect public safety.
The commission's proposed rule sets a minimum standard for service to fire hydrants so that the flow is at least 250 gallons per minute (gpm), with a minimum residual pressure of 20 pounds per square inch (psi), for a minimum of two hours. The commission intends to enforce this standard on public utilities to which it applies should the applicable local regulatory authority fail to adopt standards. The commission will also use that standard as the basis for determining whether local standards are inadequate under THSC, §341.0357(d).
The standard of 250 gpm, with a minimum residual pressure of 20 psi, for a minimum of two hours comes from legislation, TCEQ rules, and insurance standards. House Bill 1717, 80th Legislature, 2007, defines a fire hydrant as non-functioning if it pumps less than 250 gpm. Existing §290.46(r) requires a public water system to provide a minimum pressure of 20 psi during emergencies "such as firefighting." The Insurance Services Office (ISO), which rates municipality's fire systems for insurance purposes, for a public protection classification of eight or better, has a minimum standard of 250 gpm, with a minimum residual pressure of 20 psi, for a period of two hours. The ISO standard is also the source for the requirement that this flow be in addition to the community's daily rate of consumption for purposes other than fire protection.
The commission proposes to amend the figure in §290.47(i) in response to THSC, §341.042, as amended by HB 4, §11 and SB 3, §2.28, 80th Legislature, to show that any rainwater harvesting system connected to a public water system is a connection that constitutes a potential health hazard and requires a reduced-pressure principle backflow assembly or an air gap. This requirement already applies to rainwater harvesting systems under the commission's current rules. The amendment to §290.47(i) is being proposed to clarify that rainwater harvesting systems other than those for nonpotable indoor use also require a backflow prevention assembly or air gap.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rules. The proposed rules implement changes to the THSC required by legislation from the 80th Legislature, 2007. The agency expects to perform any support, compliance, and enforcement tasks utilizing current resources. The agency anticipates that local governments will also utilize existing resources to comply with the proposed rules.
The proposed rules would amend §§290.44, 290.46, and 290.47 to comply with the requirements of HB 1391, HB 4, §11, and SB 3, §2.28, 80th Legislature, 2007. HB 1391 affects public utilities in municipalities with populations of one million or more residents by requiring the adoption of public safety standards regarding sufficient water pressure for service to fire hydrants in residential areas. The agency is required to assess whether a municipality acting as a regulatory authority has adopted an adequate standard and whether all public utilities serving residential areas within these municipalities comply with the standard. Under the proposed rules, the agency is proposing a minimum standard. Local governments may choose to establish a more stringent standard, and if this is the case, a public utility would be required to meet the more stringent local standard. The standard, as seen in the proposed rules, states that the minimum flow supplied to a fire hydrant by a public utility must be at least 250 gpm, with a minimum residual pressure of 20 psi, for a minimum of two hours. The proposed rules regarding this minimum standard are not expected to have a fiscal implication for local governments. Staff anticipates that a local government will choose to utilize existing resources to perform any regulatory duties associated with the proposed rules. Any increase in regulatory duties for a local government is expected to be small. Any fiscal implications would depend on the local government and how it chooses to implement its own standard. The proposed rules also implement the requirements of HB 4, §11, and SB 3, §2.28, to establish by rule health and safety standards for the indoor use of harvested rainwater when a structure is connected to a public water system and to specify that the utilization of rainwater, for structures connected to a public water supply system, must be restricted to nonpotable indoor uses. The agency is required to specifically state in its rules the requirements for the use of cross-connection safeguards by these structures. The proposed rules also clarify that any structure with a rainwater harvesting system that is connected to a public water supply system must have a backflow prevention device, as is already required under current agency rules.
The proposed rules are not expected to have a significant fiscal impact on local governments that may have to comply with these requirements. Local governments may be required to inspect facilities or enforce standards regarding harvested rainwater and document compliance in a more specific way. However, staff expects that many local governments are already practicing many of the requirements of the proposed rules because of acknowledged best practice methods or the use of techniques needed to comply with current health and safety standards for public drinking water. Furthermore, the agency expects that local governments will be able to comply with the proposed rules with existing staff.
PUBLIC BENEFITS AND COSTS
Nina Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be compliance with state law, possible reduction of demand for water, possible reductions in the loads for wastewater treatment, and adequate water supplied to fire hydrants by public utilities in residential areas within municipalities with populations of one million or more residents.
Businesses and individuals responsible for complying with harvested rainwater protections in the proposed rules are not expected to be fiscally impacted since current agency rules already require that cross-connection safeguards must be used to protect the drinking water of public water supply systems from rainwater harvesting systems.
There may be fiscal implications for public utilities that cannot already comply with at least the proposed minimum public safety standard regarding the provision of sufficient water pressure for service to fire hydrants. These utilities are investor owned, and staff is aware that there may be as many as eight micro-businesses that may be affected by the proposed rules. The fiscal implications for these micro-businesses are more fully discussed in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT section of this fiscal note. A large business that cannot meet at least the proposed minimum standard would experience the same fiscal impacts as a small business or micro-business.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small business or micro-businesses as a result of the proposed minimum public safety standard regarding the provision of sufficient water pressure for service to fire hydrants in the areas affected by the proposed rules. Staff estimates that there are eight micro-businesses that serve as public utilities in the City of Houston. The fiscal impact on these eight micro-businesses will depend on what each investor owned utility is required to do to comply with the proposed minimum standard for fire hydrants in the residential areas they serve. The standard requires a flow of 250 gpm, with a minimum residual pressure of 20 psi, for a minimum of two hours. The amount of water line that may need to be upgraded and the capacity of a storage tank needed to comply with the standard are expected to vary depending on the circumstances of each public utility. Costs are estimated to be $18.20 per linear foot of six-inch water line and $1.50 per 1,000 gallons for a storage tank. There could also be engineering costs and financing costs associated with this type of project. If a public utility has to upgrade one mile of line (5,280 feet) and add a 50,000-gallon storage tank, total costs, excluding engineering and financing costs, could be as much as $171,000. These costs could be higher if the City of Houston adopts a standard that exceeds the standard found in the proposed rules. No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rainwater harvesting rule. Small or micro-businesses would be minimally affected by the proposed rainwater harvesting rule because current agency rules already require that cross-connection safeguards must be used to protect the drinking water of public water supply systems from rainwater harvesting systems.
SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS
The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are needed to comply with state law and are necessary to protect the health and safety of the state.
LOCAL EMPLOYMENT IMPACT STATEMENT
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 effect.
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 Texas Government Code, §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in Texas Government Code, §2001.0225 or does not meet the applicability criteria. A "major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The intent of the rulemaking is to incorporate changes made by HBs 4 and 1391 and SB 3 during the 80th Legislature, 2007, to THSC, §341.042 and §341.0357 (relating to Public Safety Standards). THSC, §341.0357, enacted by HB 1391, requires that the regulatory authority for a public utility serving a residential area adopt public safety standards to maintain sufficient water pressure to fire hydrants in residential areas in a municipality with a population of 1,000,000 or more. The specific intent of the proposed rulemaking related to this statute is to amend the commission's rules to incorporate recent legislative changes that reduce risks to human safety but that are not intended to protect the environment or reduce risks to human health from environmental exposure. Therefore, this proposed rulemaking does not meet the definition of a "major environmental rule."
THSC, §341.042, amended by HB 4 and SB 3, requires structures that are connected to a public water supply system and have a rainwater harvesting system for indoor use to have cross-connection safeguards, and the harvesting system may be used only for nonpotable indoor purposes. The intent of the rules proposed under and in response to this statute is to reduce risks to human health from environmental exposure. However, Texas Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) 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 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This portion of the rulemaking does not meet any of these four applicability criteria because it: 1) does not involve any standard set by federal law; 2) does not exceed the requirements of THSC, §341.042 or any other state law; 3) does not 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; and 4) is not proposed solely under the general powers of the agency, but rather specifically under THSC, §341.042, which requires the commission to adopt rules to implement the statute, and THSC, §341.0315, which requires the commission to ensure that public drinking water supply systems supply safe drinking water. Therefore, these proposed rules do not fall under any of the applicability criteria in Texas Government Code, §2001.0225.
The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed an analysis of whether they constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these rules is to reflect changes to THSC, §341.042 and §341.0357 made during the 80th Legislature, 2007. The proposed rules will substantially advance this stated purpose by clarifying current rules and incorporating the requirements found in these statutes into the commission's rules.
The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules 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). The commission is the regulatory agency for statutes found in THSC, Subchapter C, which contains §341.042 and §341.0357. The commission's analysis also indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this is an action that is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the health and safety purpose; and that does not impose a greater burden than is necessary to achieve the health and safety purpose. The proposed rules are designed to protect public drinking water systems from contamination and ensure that certain fire hydrants receive proper water pressure without imposing unnecessary burdens. Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).
Nevertheless, the commission further evaluated these proposed rules and performed an assessment of whether they constitute a taking under Texas Government Code, Chapter 2007. Promulgation and enforcement of these proposed rules 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 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, these rules require compliance with state statutes to protect public drinking water from contamination and provide sufficient water pressure for fire protection without burdening or restricting or limiting the owner's right to property and reducing its value by 25% or more. Therefore, the proposed rules do not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the proposed rules are not subject to the Texas Coastal Management Program.
The commission invites public comment regarding the consistency of this rulemaking. Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on May 29, 2008, at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Kristin Smith, Office of Legal Services at (512) 239-0177. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Kristin Smith, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/ . File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-046-290-PR. The comment period closes June 2, 2008. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Cindy Haynie, Public Drinking Water Section at (512) 239-3465.
STATUTORY AUTHORITY
These amendments are proposed under Texas Water Code (TWC), §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction, §5.103, which establishes the commission's general authority to adopt rules, §5.105, which establishes the commission's authority to set policy by rule; Texas Health and Safety Code (THSC), §341.0315, which requires the commission to ensure that public drinking water supply systems supply safe drinking water, §341.042, which requires the commission to enforce the requirements contained therein, and §341.0357, which requires the commission to enforce the requirements contained therein.
The proposed amendments implement THSC, §§341.0315, 341.042, and 341.0357.
§290.44.Water Distribution.
(a) - (i) (No change.)
(j) If a structure is connected to a public water supply system and has a rainwater harvesting system for indoor use, the structure must have appropriate cross-connection safeguards in accordance with subsection (h)(1) of this section and the rainwater harvesting system may be used only for nonpotable indoor purposes.
§290.46.Minimum Acceptable Operating Practices for Public Drinking Water Systems.
(a) - (w) (No change.)
(x) Public safety standards. This subsection only applies to a municipality with a population of 1,000,000 or more, with a public utility within its corporate limits.
(1) In this subsection:
(A) "Regulatory authority" means, in accordance with the context in which it is found, either the commission or the governing body of a municipality.
(B) "Public utility" means any person, corporation, cooperative corporation, affected county, or any combination of these persons or entities, other than a municipal corporation, water supply or sewer service corporation, or a political subdivision of the state, except an affected county, or their lessees, trustees, and receivers, owning or operating for compensation in this state equipment or facilities for the transmission, storage, distribution, sale, or provision of potable water to the public or for the resale of potable water to the public for any use or for the collection, transportation, treatment, or disposal of sewage or other operation of a sewage disposal service for the public, other than equipment or facilities owned and operated for either purpose by a municipality or other political subdivision of this state or a water supply or sewer service corporation, but does not include any person or corporation not otherwise a public utility that furnishes the services or commodity only to itself or its employees or tenants as an incident of that employee service or tenancy when that service or commodity is not resold to or used by others.
(C) "Residential area" means:
(i) an area designated as a residential zoning district by a governing ordinance or code or an area in which the principal land use is for private residences;
(ii) a subdivision for which a plat is recorded in the real property records of the county and that contains or is bounded by public streets or parts of public streets that are abutted by residential property occupying at least 75 percent of the front footage along the block face; or
(iii) a subdivision a majority of the lots of which are subject to deed restrictions limiting the lots to residential use.
(2) A public utility shall have the ability to deliver water to any fire hydrant connected to the public utility's water system located in a residential area so that the flow at the fire hydrant is at least 250 gpm, with a minimum of 20 psi residual pressure, for a minimum period of two hours. That flow is in addition to the public utility's maximum daily rate of consumption for purposes other than firefighting.
(3) When the regulatory authority is a municipality, it shall by ordinance adopt standards for maintaining sufficient water pressure for service to fire hydrants adequate to protect public safety in residential areas in the municipality. The standards specified in paragraph (2) of this subsection are the minimum acceptable standards.
(4) When the regulatory authority is a municipality, it shall adopt the standards required by this subsection within one year of the date this subsection first applies to the municipality.
(5) A public utility shall comply with the standards established by a municipality, within one year of the date the standards first apply to the public utility. If a municipality has failed to comply with the deadline required by paragraph (4) of this subsection, then a public utility shall comply with the standards specified in paragraph (2) of this subsection within two years of the effective date of this subsection or within one year of the date this subsection first applies to the public utility, whichever occurs later.
§290.47.Appendices.
(a) - (h) (No change.)
(i) Appendix I. Assessment of Hazard and Selection of Assemblies.
[Figure: 30 TAC §290.47(i)]
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 18, 2008.
TRD-200802020
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-0177
The Texas Commission on Environmental Quality (agency, commission, or TCEQ) proposes amendments to §§334.2, 334.8, 334.21, 334.42, 334.45, 334.47, 334.49, 334.50, 334.54, 334.71, 334.84, 334.128, 334.301, 334.302 and 334.303.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The purpose of the proposed amendments is to incorporate into agency rules, changes to statute which are effective September 1, 2007, based on language in House Bill (HB) 3554 and HB 1956, 80th Legislature, 2007, to incorporate certain underground storage tank (UST) provisions of the federal Energy Policy Act of 2005, and to update certain technical requirements pertaining to underground storage tanks. Changes include such items as the requirement of proof of financial assurance to be included with annual tank self-certifications; the cessation of annual facility fees; secondary containment for underground storage tank systems in accordance with EPA and Federal Energy Act requirements; and extension of the PST Reimbursement Program for four years.
The commission specifically requests comments on the issue (not addressed in the proposed rules) of whether Leaking Petroleum Storage Tank (LPST) sites should be removed from the requirements of 30 TAC Chapter 350, Texas Risk Reduction Program.
SECTION BY SECTION DISCUSSION
Throughout this rulemaking package, administrative changes have been made as necessary in accordance with Texas Register requirements.
Subchapter A - General Information
To expand the rule to incorporate reference to renewable fuels, proposed amendment to §334.2 would change the definition of "Motor fuel" and the definition of "Petroleum Product" to incorporate alcohol blended fuels and biodiesel blended with Number 1 and Number 2 diesel. To comply with statutory changes; proposed §334.8(c)(1)(A)(v) is amended to specify that only temporarily out of service USTs which are empty are exempt from self-certification; proposed §334.8(c)(3)(D)(iii) is amended to specify that copies of financial assurance documents are required to be submitted as part of self-certification; and proposed §334.8(c)(4)(A)(viii) is amended to specify that proof of current financial assurance must be submitted annually.
Subchapter B - Underground Storage Tank Fees
To comply with statutory changes, proposed §334.21 is amended to add language addressing the cessation of annual UST facility fees, effective September 1, 2007, until such time as reinstated by the commission at amounts set by the commission, but specifies that prior tank fees are still due. Section 334.21(b) is amended to change the reference from "Texas Natural Resource Conservation Commission" to "Texas Commission on Environmental Quality."
Subchapter C - Technical Standards
To incorporate requirements of the federal Energy Act of 2005; proposed §334.42(h) is added to specify the requirement for secondary containment (in accordance with the requirements of proposed §334.45(d)(1)(E)) for any new tank, line or dispenser installed on or after the effective date of this rule. In response to problems noted in routine inspections of UST systems, proposed §334.42(i) is added to specify that any sumps (including dispenser sumps) or manways, installed prior to the effective date of the subsection, which are utilized as an integral part of a UST release detection system and any overspill containers or catchment basins installed at any time, which are associated with a UST system must be maintained liquid tight and kept free of water and/or debris. Proposed §334.45(b)(4)(A) is amended to add the term "or any other water" to the list of media which metallic tank fittings must be isolated from, to expand the list and provide clarification and consistency in rule language. Proposed §334.45(d)(1)(E) is added to specify detailed requirements for secondary containment (referenced at proposed new §334.42(h)) for new tanks or lines installed as part of a UST system on or after the effective date of the rule, and for dispenser sumps for new dispensers or for existing dispensers served by new UST piping. Proposed §334.47(b)(1)(A)(ii) is amended to add the term "or any other water" to the list of media which clad or jacketed metal tanks are isolated from, to expand the list and provide clarification and consistency in rule language. Proposed §334.47(b)(1)(C) is amended to add the term "or any other water" to the list of media which clad metal components are not isolated from, to expand the list and provide clarification and consistency in rule language. Proposed §334.49(b)(2) and (3) are amended to add the term "or any other water" to the list of corrosive elements which a UST system component may be isolated from to expand the list and provide clarification and consistency in rule language and by adding the word "from" prior to the term "other metallic components" to clarify the intent of the language. Proposed §334.49(b)(3)(B) is amended to add the term "or any other water" to the list of media which must be kept out of secondary containment interstices to expand the list and provide clarification and consistency in rule language. Proposed §334.49(c)(1)(B)(i) is amended to add the term "or any other water" to the list media an exterior surfaces might be exposed to, to expand the list and provide clarification and consistency in rule language. Proposed §334.49(d)(1)(A) and (C) is amended to add the term "or any other water" to the list of media which metal components are isolated from, to expand the list and provide clarification and consistency in rule language and by adding the word "from" prior to the term "other metallic components" to clarify the intent of the language. Proposed §334.50(d)(7)(C) is amended to add the term "and any other water" to "groundwater" to expand and clarify the intent of that subparagraph. Proposed §334.54(e)(5) is added to address financial assurance requirements for tanks temporarily removed from service to comply with statutory changes.
Subchapter D - Release Reporting and Corrective Action
Proposed §334.71(b)(6) is amended to extend the deadline for submitting a site closure request from September 1, 2007 to September 1, 2011 to comply with statutory changes. Proposed §334.84(a)(4) is amended to extend the deadline for eligible owners/operators who have been granted an extension for corrective action reimbursement by the agency to apply to the agency to have an eligible corrective action site placed in the commission's State Lead Program from July 1, 2007 to July 1, 2011 to comply with statutory changes.
Subchapter F - Aboveground Storage Tanks
Section 334.128(a)(4) is amended to change the reference from "Texas Natural Resource Conservation Commission" to "Texas Commission on Environmental Quality." To comply with statutory changes, proposed §334.128(e) is amended to add language addressing the cessation of annual aboveground storage tank facility fees, effective September 1, 2007, until such time as reinstated by the commission at amounts set by the commission, but specifies that prior tank fees are still due.
Subchapter H - Reimbursement Program
The following amendments are proposed to comply with statutory changes. Proposed §334.301(c) is amended by adding language in accordance with statute which extends the deadline for the performance of corrective action from before August 31, 2007 to before August 31, 2011, for eligible owners/operators who have been granted an extension for corrective action reimbursement by the agency; by amending in accordance with statute the deadline for filing a claim for reimbursement from March 1, 2008, to March 1, 2012; and by amending in accordance with statute the final deadline for payment of reimbursements from September 1, 2008, to September 1, 2012. Proposed §334.302(c)(5) is amended by adding language in accordance with statute which extends the deadline for the performance of corrective action from before August 31, 2007 to before August 31, 2011, for eligible owners/operators who have been granted an extension for corrective action reimbursement by the agency. Proposed §334.302(c)(6) is amended by changing in accordance with statute the deadline for filing a claim for corrective action reimbursement with the agency from March 1, 2008, to March 1, 2012. Proposed §334.302(c)(7) is amended by changing the final deadline for payment of any expenses related to corrective action reimbursements from September 1, 2008, to September 1, 2012. Proposed §334.303(a) is amended by changing the deadline for filing an application (claim) for reimbursement from March 1, 2008, to March 1, 2012.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rules since the agency expects to utilize current resources to modify existing databases to track mandated self certifications regarding compliance with state and federal regulations. Although the proposed rules reduce the amount of fee revenue collected, the agency will utilize fund balances in Account 549, Waste Management Account and Account 655, Petroleum Storage Tank Remediation (PSTR) Account to perform compliance duties. If other state agencies and local governments decide to install USTs after the effective date of this rule, they may experience cost increases to install tanks compliant with the proposed rules, but those costs could be offset by decreased cleanup costs.
The proposed rules are needed to implement provisions of HB 3554 and HB 1956, 80th Legislature, and incorporate federal requirements regarding USTs. HB 3554 extended the PST Reimbursement Program and associated remediation and reimbursement deadlines by four years; reduced the amount of the fee that is imposed on the bulk delivery of petroleum products; eliminated the tank registration fee previously collected by the agency; and allowed the agency to utilize fund balances in Account 549, Waste Management Account and Account 655, PSTR Account to perform compliance duties. The proposed rules also incorporate the requirements of HB 1956 which requires proof of financial assurance to be included with UST self-certification. The proposed rules incorporate federal requirements regarding, secondary containment for UST systems, renewable fuels, and other technical PST requirements.
House Bill 3554 reduced the fee assessed on delivery of bulk petroleum products by two thirds; this fee funds the PSTR Account 655. The cessation of the collection of annual PST facility fees which fund Account 549, Waste Management Account will reduce agency revenue by an estimated $3.2 million per year for the next four years the proposed rules are in effect. During this same time frame, the agency should also experience steadily declining expenditures due to an expected decline in the number of reimbursement eligible PST sites in remediation. Also, the agency's authorization to utilize fund balances in Account 549, Waste Management Account and Account 655, PSTR Account to perform compliance duties allow the agency to administer the PST program with no significant fiscal impact expected as a result of the proposed rules.
Staff estimates that there may be as many as 558 PSTs at 266 facilities owned by other state agencies and as many as 2,219 PSTs at 984 facilities owned by local governments. If a state agency or local government decides to install a new facility or replace old tanks, it will be required to comply with technical requirements regarding secondary containment. These costs can vary widely depending on the UST Installer, the equipment manufacturer, the equipment installed, the location of facilities, the soil conditions at a facility, and the size of tanks installed. Staff estimates that although the specific cost of a new double wall tank is approximately 50% greater than a new single wall tank of the same size, the overall increase in cost to incorporate double wall tanks and lines at a large new UST facility under the proposed rules will likely be 2% or less of the total cost when the combined costs for land, improvements, dispensers, and paving are considered. At an existing UST site, note that facility owners or operators will not be required to do an upgrade until they are already doing equipment replacement (e.g., new tanks, new lines, dispenser sumps with sensors). The total cost of such a construction project (including digging up the pavement, etc.) with a secondary containment upgrade versus a similar construction project without a secondary containment upgrade would only be about 11% more. Any cost increases related to secondary containment are expected to reduce the cost and risk of any future PST remediation needed at these facilities.
PUBLIC BENEFITS AND COSTS
Nina Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be increased protection of the environment because of more protective equipment requirements and continued remediation at PST sites.
Staff estimates that there are over 17,000 UST facilities owned by businesses statewide. If a new UST facility is built or if a UST is replaced at an existing facility, businesses will be required to comply with the secondary containment provisions of the proposed rules. These costs can vary widely depending on the UST Installer, the equipment manufacturer, the equipment installed, the location of facilities, the soil conditions at a facility, and the size of tanks installed. Staff estimates that although the specific cost of a new double wall tank is approximately 50% greater than a new single wall tank of the same size, the overall increase in cost to incorporate double wall tanks and lines at a new retail UST facility under the proposed rules will likely be 2% or less of the total cost when the combined costs for land, improvements, dispensers, and paving are considered. At an existing UST site, note that a facility owner or operator will not be required to do an upgrade until they are already doing equipment replacement (e.g., new tanks, new lines, dispenser sumps with sensors). The total cost of such a construction project (including digging up the pavement, etc.) with a secondary containment upgrade versus a similar construction project without a secondary containment upgrade would only be about 11% more. Any cost increases related to secondary containment are expected to reduce the cost and risk of any future PST remediation needed at these facilities.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small or micro-businesses that own or operate PST facilities. Small or micro-businesses can expect to see the same cost increases for secondary containment as those experienced by governmental entities and large businesses. However, these cost increases are expected to eliminate or reduce remediation costs at a future date.
SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS
The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are required to comply with state and federal law and to protect the environment and public health and safety.
LOCAL EMPLOYMENT IMPACT STATEMENT
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 effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory impact 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. A 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. Although the specific intent of this rule is to implement statutory changes relating to continuation of the Petroleum Storage Tank Reimbursement Program, the second prong of the definition of a "major environmental rule" is not met: The proposed rules would 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.
Further, it does not meet any of the four requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a) states that this section applies only to a major environmental rule adopted by a state agency, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) 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 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. These proposed rules do not meet any of the four applicability requirements and thus are not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225 even if they did meet the definition of a major environmental rule. Specifically, the proposed rules are required by state law, are not proposed solely under the general powers of the agency, and do not exceed a requirement of state law, federal law, or a delegation agreement or contract between the state and an agency or representative of the federal government.
Written comments on the draft regulatory impact analysis determination of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rules and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this is an action that is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the health and safety purpose; and that does not impose a greater burden than is necessary to achieve the health and safety purpose. Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).
The proposed rules are an "action taken in response to a real and substantial threat to public health and safety" in that contamination from releases from underground storage tanks pose a threat to both soils and groundwater with which the public may come into contact. The proposed rules are "designed to significantly advance the health and safety purpose" by extending the PST Reimbursement Program for four years, which helps ensure that funds are available for addressing contamination from releases from underground storage tanks. The proposed rules "do not impose a greater burden than is necessary to achieve the health and safety purpose" because they are narrowly tailored to the class of tank owners or operators and narrowly tailored to specific conditions or events, such as termination of financial assurance coverage.
Nevertheless, the commission further evaluated these proposed rules and performed an assessment of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007.
Promulgation and enforcement of the proposed rules would be neither a statutory nor a constitutional taking of private real property by the commission. Specifically, the proposed rules 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 rights to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the proposed rules. Additionally, there are benefits to society from the proposed rules, including the extension of the PST Reimbursement Program as a funding mechanism for cleanup of contamination from releases from tanks, stricter technical standards which tend to prevent releases which could damage private property, and financial assurance documentation requirements which tend to assure that cleanup of property is funded. As a whole, this rulemaking will not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules (31 TAC §505.11(b)(2)) subject to the Texas Coastal Management Program (CMP) and will, therefore, require that goals and policies of the CMP be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking protects the environment by ensuring that dollars continue to be available for cleanup of reimbursement eligible sites and by upgrading certain administrative and technical requirements of USTs that will serve to enhance the protection of coastal environments and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.
The commission is seeking public comment on the consistency of the proposed rulemaking with the CMP. Written comments may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Austin on May 27, 2008, 10:00 a. m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building E, Room 201S. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Michael Parrish, Office of Legal Services, at (512) 239-2548. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Michael Parrish, MC 205, Texas Register Team, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-037-334-PR. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. Comments must be received by June 2, 2008. For further information, please contact Anton E. Rozsypal, Jr., P.E., Remediation Division, at (512) 239-5755 or Cullen McMorrow, Litigation Division, at (512) 239-0607.
Subchapter A. GENERAL PROVISIONS
STATUTORY AUTHORITY
These amendments are proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which directs the commission to establish and approve all general policy of the commission by rule; TWC, §26.011, which requires the commission to control the quality of water by rule. TWC, §26.345, which authorizes the commission to develop a regulatory program and to adopt rules regarding underground storage tanks (USTs); and TWC, §26.351, which directs the commission to adopt rules establishing the requirements for taking corrective action in response to a release from a UST or aboveground storage tank.
The proposed amendments implement TWC, §§26.351, 26.352, 26.3573, 26.3574, 26.358, 26.361, as amended by House Bills 1956 and 3554, 80th Legislature, 2007. The proposed amendments also implement certain underground storage tank provisions of the federal Energy Policy Act of 2005.
§334.2.Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
(1) - (58) (No change.)
(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 vehicles, aircraft, and marine vessels),
and which is one of the following types of fuels: motor gasoline,
aviation gasoline, Number 1 diesel fuel, Number 2 diesel fuel, biodiesel
blended with Number 1 or Number 2 diesel, [or] gasohol
or other alcohol blended fuels.
(60) - (78) (No change.)
(79) 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, and biodiesel blended with
Number 1 or 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.
(80) - (123) (No change.)
§334.8.Certification for Underground Storage Tanks (USTs) and UST Systems.
(a) - (b) (No change.)
(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) - (iv) (No change.)
(v) USTs temporarily out-of-service under §334.54 of this title (relating to Temporary Removal from Service) which are empty by definition.
(B) (No change.)
(2) (No change.)
(3) Conditions and limitations.
(A) - (C) (No change.)
(D) The administrative requirements and technical standards that are the subject of the compliance self-certification shall include:
(i) - (ii) (No change.)
(iii) financial assurance, as described in Chapter 37, Subchapter I of this title (relating to Financial Assurance for Petroleum Underground Storage Tank Systems) (Copies of financial assurance documents are required to be submitted as part of self-certification, as specified in paragraph (4)(A)(viii) of this subsection); and
(iv) (No change.)
(4) UST registration and self-certification form.
(A) Requirements for completion of the form.
(i) - (vii) (No change.)
(viii) The owner or operator must submit annually, proof of current financial assurance, in accordance with §37.870(b) of this title (relating to Reporting, Registration, and Certification).
(B) - (C) (No change.)
(5) - (6) (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 18, 2008.
TRD-200802058
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which directs the commission to establish and approve all general policy of the commission by rule; TWC, §26.011, which requires the commission to control the quality of water by rule. TWC, §26.345, which authorizes the commission to develop a regulatory program and to adopt rules regarding underground storage tanks (USTs); and TWC, §26.351, which directs the commission to adopt rules establishing the requirements for taking corrective action in response to a release from a UST or aboveground storage tank.
The proposed amendment implements TWC, §§26.351, 26.352, 26.3573, 26.3574, 26.358, 26.361, as amended by House Bills 1956 and 3554, 80th Legislature, 2007. The proposed amendment also implements certain UST tank provisions of the federal Energy Policy Act of 2005.
§334.21.Fee Assessment.
(a) Annual facility fees shall cease to be assessed, effective September 1, 2007, and shall not be assessed until such time as reinstated by the commission at an amount determined appropriate by the commission, however, prior owing tank fees are still due as further described. 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 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 Commission on
Environmental Quality. ["Texas Natural Resource Conservation
Commission."] Payments must be mailed to the address specified
in the billing statement.
(c) - (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 18, 2008.
TRD-200802059
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-6091
30 TAC §§334.42, 334.45, 334.47, 334.49, 334.50, 334.54
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which directs the commission to establish and approve all general policy of the commission by rule; TWC, §26.011, which requires the commission to control the quality of water by rule. TWC, §26.345, which authorizes the commission to develop a regulatory program and to adopt rules regarding underground storage tanks (USTs); and TWC, §26.351, which directs the commission to adopt rules establishing the requirements for taking corrective action in response to a release from a UST or aboveground storage tank.
The proposed amendments implement TWC, §§26.351, 26.352, 26.3573, 26.3574, 26.358, 26.361, as amended by House Bills 1956 and 3554, 80th Legislature, 2007. The proposed amendments also implement certain UST provisions of the federal Energy Policy Act of 2005.
§334.42.General Standards.
(a) - (g) (No change.)
(h) Any new tank or line or dispenser installed as part of a UST system on or after the effective date of this subsection shall incorporate secondary containment meeting the applicable requirements of §334.45(d)(1)(E) of this title (relating to Technical Standards for New Underground Storage Tank Systems).
(i) Any sumps (including dispenser sumps) or manways installed prior to the effective date of this subsection, which are utilized as an integral part of a UST release detection system, and any overspill containers or catchment basins installed at any time, which are associated with a UST system must be maintained liquid tight and free of water and/or debris.
§334.45.Technical Standards for New Underground Storage Tank Systems.
(a) (No change.)
(b) Technical standards for new tanks.
(1) - (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) isolated from the backfill material and groundwater or any other water;
(ii) - (iii) (No change.)
(B) - (C) (No change.)
(c) (No change.)
(d) Secondary containment for UST systems.
(1) Applicability.
(A) - (D) (No change.)
(E) Requirements applicable to new tanks, lines and or dispensers (including related sumps or manways) installed on or after the effective date of this subparagraph:
(i) Any new tank or line installed as part of a UST system on or after the effective date of this subparagraph, must be of double wall construction (or agency accepted alternative) meeting the applicable requirements of this subchapter.
(ii) Up to 10% of the total original length of an existing single wall line can be replaced with new single wall line in accordance with the applicable requirements of this subchapter without triggering the double wall requirement for that line. If more than 10% of the total original length of an existing single wall line is to be replaced, that line must be replaced in its entirety with one of double wall construction (or agency accepted alternative).
(iii) The interstice of the double wall (or agency accepted alternative) tank and/or line must be monitored in accordance with the requirements of §334.50(d)(7) of this title.
(iv) Any sumps or manways included in a UST system with a new double wall tank/s and/or line/s must be installed and maintained liquid tight, inspected for tightness annually and tested for tightness immediately after installation and at least once every three years thereafter.
(v) Each new dispenser or existing dispenser served by new UST system piping must employ a dispenser sump which is installed and maintained liquid tight, inspected for tightness annually and tested for tightness, immediately after installation and at least once every three years thereafter.
(vi) All sumps (including dispenser sumps) and/or manways must be equipped with a liquid sensing probe/s which will alert the UST system owner or operator if more than two inches of liquid collects in any sump or manway.
(vii) Liquids in sumps or manways must be removed and properly disposed of within 48 hours of alert or discovery.
(viii) The presence of 1/8 inch or more of free product in sumps or manways must be reported as a suspected release in accordance with §334.74(4) of this title (relating to Release Investigation and Confirmation Steps).
(ix) Inspections and testing must be performed by a qualified person who possesses the requisite experience, training, and competence to conduct the inspection or test properly, in accordance with applicable industry standards or practices.
(2) - (4) (No change.)
(e) - (f) (No change.)
§334.47.Technical Standards for Existing Underground Storage Tank Systems.
(a) (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) (No change.)
(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. 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 or any other water, 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.
(iii) - (v) (No change.)
(B) (No change.)
(C) Field-installed cathodic protection system. After confirmation or restoration of the structural integrity of the tank, all underground metal components of the UST system, which are not isolated from the surrounding soil, backfill, and groundwater or any other water , 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).
(2) - (4) (No change.)
(c) - (e) (No change.)
§334.49.Corrosion Protection.
(a) (No change.)
(b) Allowable corrosion protection methods. All components of an 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.
(1) (No change.)
(2) The component may be electrically isolated from the corrosive elements of the surrounding soil, backfill, groundwater or any other water, and from other metallic components by installing the component in an open area (e.g., manway, sump, vault, pit, etc.) where periodic visual inspection of all parts of the component for the presence of corrosion or released substances is practicable.
(3) The component may be electrically isolated from the corrosive elements of the surrounding soil, backfill, groundwater or any other water, and from other metallic components by completely enclosing the component in a secondary containment device (e.g., wall, jacket, or liner), provided that:
(A) (No change.)
(B) the interstitial space between the protected component and the secondary containment device shall be free of any soil, backfill material, groundwater or any other water, or other substances, and the protected component shall be regularly inspected and tested for electrical isolation in accordance with the provisions in subsection (d)(1) of this section.
(4) - (7) (No change.)
(c) Cathodic protection systems.
(1) Factory-installed cathodic protection systems.
(A) (No change.)
(B) At a minimum, the factory-installed cathodic protection system shall include the following components:
(i) a suitable dielectric external coating or laminate, which shall thoroughly cover all exterior surfaces exposed to the soil, backfill, or groundwater or any other water, and which shall consist of materials which are compatible with the stored regulated substances;
(ii) - (iii) (No change.)
(2) - (4) (No change.)
(d) Requirements for other corrosion protection methods.
(1) Electrically isolated components.
(A) Except for jacketed tanks meeting the requirements of §334.45(b)(1)(F) of this title, any metal component of an UST 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 or any other water, and from other metal components in accordance with one or more of the following procedures.
(i) - (iii) (No change.)
(B) (No change.)
(C) If the tests required in subparagraph (A) of this paragraph indicate that the metal component is no longer electrically isolated from the surrounding soil, backfill, groundwater or any other water, or from other metal components, a qualified corrosion specialist shall review the test results and thoroughly inspect the area of the metal component to ascertain the extent of electrical isolation and corrosion protection for the component.
(D) (No change.)
(2) (No change.)
(e) (No change.)
§334.50.Release Detection.
(a) - (c) (No change.)
(d) Allowable methods of release detection. Tanks in a UST system may be monitored for releases using one or more of the methods included in paragraphs (2) - (10) of this subsection. Piping in a UST system may be monitored for releases using one or more of the methods included in paragraphs (5) - (10) 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.
(1) - (6) (No change.)
(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 system may be used, subject to the following conditions and requirements.
(A) - (B) (No change.)
(C) The sampling, testing, or monitoring method shall be capable of detecting a breach or failure in the primary wall and the entrance of groundwater or any other water into the interstitial space due to a breach in the secondary wall of the double-wall tank or piping system within one month (not to exceed 35 days) of such breach or failure (whether or not a stored regulated substance has been released into the environment).
(8) - (10) (No change.)
(e) (No change.)
§334.54.Temporary Removal from Service.
(a) - (d) (No change.)
(e) Other requirements.
(1) - (4) (No change.)
(5) Financial assurance requirements for tanks temporarily removed from service. Note that §37.885 of this title (relating to Release from the Requirements) addresses release from financial assurance requirements, and that Texas Water Code, §26.352(e-2) and §37.867 of this title (relating to Duty to Empty Tanks After Termination of Financial Assurance) address the duty to empty tanks after termination of financial assurance.
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 18, 2008.
TRD-200802060
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which directs the commission to establish and approve all general policy of the commission by rule; TWC, §26.011, which requires the commission to control the quality of water by rule. TWC, §26.345, which authorizes the commission to develop a regulatory program and to adopt rules regarding underground storage tanks (USTs); and TWC, §26.351, which directs the commission to adopt rules establishing the requirements for taking corrective action in response to a release from a UST or aboveground storage tank.
The proposed amendments implement TWC, §§26.351, 26.352, 26.3573, 26.3574, 26.358, 26.361, as amended by House Bills 1956 and 3554, 80th Legislature, 2007. The proposed amendments also implement certain UST provisions of the federal Energy Policy Act of 2005.
§334.71.Applicability and Deadlines.
(a) (No change.)
(b) If the release was reported to the agency on or before December 22, 1998, the person performing the corrective action shall meet the following deadlines:
(1) - (5) (No change.)
(6) for sites that require either a corrective action
plan or groundwater monitoring, have met all other deadlines under
this subsection, and have submitted annual progress reports that demonstrate
progress toward meeting closure requirements, a site closure request
must be submitted to the executive director no later than September
1, 2011 [2007]. The request must be complete,
as judged by the executive director.
(c) (No change.)
§334.84.Corrective Action by the Agency.
(a) The agency may undertake corrective action in response to a release or a threatened release if:
(1) - (3) (No change.)
(4) the owner or operator is eligible for an extension
for corrective action reimbursement under Texas Water Code, §26.3571;
has been granted such extension by the executive director; has applied
to the agency in writing on an agency application form not later than
July 1, 2011 [2007
], to have an eligible corrective
action site placed in the Petroleum Storage Tank State Lead Program
administered by the commission; and has agreed on the application
form to allow access to that site to state personnel and state contractors.
Once the executive director places such a site in the state lead program,
the eligible owner or operator of that site is not liable to the commission
for any corrective action costs incurred by the state lead program
with regard to the site, unless the statutorily allowable maximum
cost per site is exceeded; or
(5) (No change.)
(b) - (c) (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 18, 2008.
TRD-200802061
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103, which authorizes the commission 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; TWC, §5.105, which directs the commission to establish and approve all general policy of the commission by rule; TWC, §26.011, which requires the commission to control the quality of water by rule. TWC, §26.345, which authorizes the commission to develop a regulatory program and to adopt rules regarding underground storage tanks (USTs); TWC, §26.351, which directs the commission to adopt rules establishing the requirements for taking corrective action in response to a release from a UST or aboveground storage tank.
The proposed amendment implements TWC, §§26.351, 26.352, 26.3573, 26.3574, 26.358, 26.361, as amended by House Bills 1956 and 3554, 80th Legislature, 2007. The proposed amendments also implement certain UST provisions of the federal Energy Policy Act of 2005.
§334.128.Annual Facility Fees for Aboveground Storage Tanks (ASTs).
(a) Fee assessments.
(1) - (3) (No change.)
(4) Annual facility fees must be paid by check, certified
check, or money order made payable to the
Texas Commission on Environmental Quality. [
"Texas Natural Resource Conservation Commission."
] Payments must be mailed to the address specified
in the billing statement.
(b) - (d) (No change.)
(e) Exception. An annual facility fee shall cease to be assessed, effective September 1, 2007, and shall not be assessed until such time as reinstated by the commission at an amount determined appropriate by the commission, however, prior owing tank fees are still due as previously described. In addition, at such time as the annual facility fee is reinstated by the commission, it will not be assessed for an AST which is owned by a common carrier railroad, as provided in the TWC, §26.344(g).
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 18, 2008.
TRD-200802062
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
These amendments are proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which directs the commission to establish and approve all general policy of the commission by rule; TWC, §26.011, which requires the commission to control the quality of water by rule. TWC, §26.345, which authorizes the commission to develop a regulatory program and to adopt rules regarding underground storage tanks (USTs); TWC, §26.351, which directs the commission to adopt rules establishing the requirements for taking corrective action in response to a release from a UST or aboveground storage tank; and TWC, §26.3573, which allows the commission to use funds from the Petroleum Storage Tank Remediation (PSTR) Account to reimburse an eligible owner or operator or insurer for the expenses of corrective action or to pay the claim of a contractor hired by an eligible owner or operator to perform corrective action.
The proposed amendments implement TWC, §§26.351, 26.352, 26.3573, 26.3574, 26.358, 26.361, as amended by House Bills 1956 and 3554, 80th Legislature, 2007. The proposed amendments also implement certain UST provisions of the federal Energy Policy Act of 2005.
§334.301.Applicability of this Subchapter.
(a) - (b) (No change.)
(c) Expenses 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 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 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 performed after September 1, 2005
will be reimbursed unless the owner or operator is eligible for an
extension for corrective action reimbursement under Texas Water Code, §26.3571
and has been granted such an extension by the executive director.
The Petroleum Storage Tank Remediation (PSTR) Account may be used
to reimburse an eligible owner or operator for corrective action performed
under an extension before August 31, 2011 [2007].
No reimbursements will be made for corrective action expenses sought
in claims submitted to the agency after March 1, 2012 [2008
]. Under no circumstances will any reimbursements be made on
or after September 1, 2012 [2008].
(d) - (h) (No change.)
§334.302.General Conditions and Limitations Regarding Reimbursement; Assignments.
(a) - (b) (No change.)
(c) No payments shall be made by the agency under this subchapter for:
(1) - (4) (No change.)
(5) any expenses related to corrective action performed
after September 1, 2005, unless the owner or operator is eligible
for an extension for corrective action reimbursement under Texas Water
Code, §26.3571 and has been granted such an extension by the
executive director. The Petroleum Storage Tank Remediation (PSTR)
Account may be used to reimburse an eligible owner or operator for
corrective action performed under an extension before August 31,
2011 [2007];
(6) any expenses related to corrective action contained
in a reimbursement claim filed with the agency after March 1,
2012 [2008];
(7) any expenses on or after September 1, 2012 [2008]; or
(8) (No change.)
(d) - (k) (No change.)
§334.303.When to File Application.
(a) An application for reimbursement under this subchapter
must be filed on or after January 17, 1990, but not after March 1,
2012 [2008].
(b) - (c) (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 18, 2008.
TRD-200802063
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 1, 2008
For further information, please call: (512) 239-6091