PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 334. UNDERGROUND AND ABOVEGROUND STORAGE TANKS
SUBCHAPTER C. TECHNICAL STANDARDS
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §334.48.
Amended §334.48 is adopted without change to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5528) and, therefore, will not be republished.
Background and Summary of the Factual Basis for the Adopted Rule
Since the beginning of Texas' underground storage tank (UST) program in 1989, the commission's rules have required that effective manual or automatic inventory control procedures be conducted for all underground storage tank systems at "retail service stations," as defined in 30 Texas Administrative Code (TAC) §334.2(102). This requirement applies regardless of which release detection method is selected by an owner or operator under 30 TAC §334.50. Because newer technologies have been developed, and interstitial monitoring is required for all UST systems installed after January 1, 2009, it has become unnecessary for all retail service stations to employ both inventory control procedures and the selected release detection method.
Section by Section Discussion
§334.48(c), Inventory Control.
The commission adopts to amend §334.48(c) to remove the requirement for all retail service stations to conduct inventory control procedures. Inventory control must still be performed, where applicable, as a necessary component of a release detection method under 30 TAC §334.50(d)(4) and (d)(9) (i.e., combination of inventory control plus automatic tank gauging or a combination of inventory control plus statistical inventory reconciliation).
Final Regulatory Impact Analysis
The commission reviewed the rulemaking adoption in light of the regulatory impact analysis requirements of the Texas Government Code, §2001.0225, and determined that the rulemaking adoption does not meet the definition of a "Major environmental rule" as defined in that statute, and in addition, if it did meet the definition, would not be subject to the requirements to prepare a Regulatory Impact Analysis.
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. The specific intent of the adopted amendment to §334.48(c) is to remove a duplicate requirement of inventory control where USTs are utilizing another release detection method.
Due to the development of newer technologies, and the requirement of utilizing interstitial monitoring for all UST systems installed after January 1, 2009, the requirement that all retail service stations employ inventory control procedures in addition to a selected release detection method has become unnecessary. Inventory control must still be performed as a component of a release detection method under 30 TAC §334.50(d)(4) and (d)(9). The rulemaking adoption remains consistent with federal regulations, as it removes a Texas rule that is more stringent than federal regulations with the result being just as stringent as federal regulations.
Because the amendment places no involuntary requirements on the regulated community, the rule will 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. Also, the amendment does not place additional financial burdens on the regulated community beyond what is already required by state regulations relating to release detection.
In addition, a regulatory impact analysis is not required because the rule does not meet any of the four applicability criteria for requiring a regulatory analysis of a "Major environmental rule" as defined in the Texas Government Code. Texas Government Code, §2001.0225, applies only 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 rulemaking does not exceed a standard set by federal law. In addition, this rulemaking does not exceed an express requirement of state law and is not adopted solely under the general powers of the agency but is specifically authorized by the provisions cited in the Statutory Authority section of this preamble. Finally, this rulemaking does not exceed a requirement of a delegation agreement or contract to implement a state or federal program.
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the regulatory impact analysis determination.
Takings Impact Assessment
The commission evaluated the rulemaking adoption and performed an analysis of whether the adopted rule constitute a taking under Texas Government Code, Chapter 2007. The commission's assessment indicates Texas Government Code, Chapter 2007 does not apply.
Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and (ii) is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect."
The specific purpose of the rulemaking adoption is to amend 30 TAC §334.48(c) to remove the requirement for all retail service stations to conduct inventory control procedures.
Inventory control must still be performed at facilities who conduct release detection under 30 TAC §334.50(d)(4) or (d)(9).
Promulgation and enforcement of the adopted rule will not be a statutory or a constitutional taking of private real property. This rule is not burdensome, restrictive, or limiting of rights to private real property because the adopted rule does not affect a landowner's rights in private real property. This rule does not burden, restrict, or limit the owner's right to property, nor does it reduce the value of any private real property by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, the adopted rule will not constitute a taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the rulemaking adoption and found that it is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rule in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §29.22 and found the rulemaking adoption is consistent with the applicable CMP goals and policies.
The CMP goals applicable to this rulemaking are: to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; to ensure and enhance planned public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone; and to balance these competing interests. (31 TAC §26.12(1), (2), (4), (5)).
The CMP policy applicable to this rulemaking adoption is the Nonpoint Source Water Pollution which requires under Texas Water Code, Chapter 26, Subchapter I (governing underground storage tanks) that underground storage tanks be located, designed, operated, inspected, and maintained so as to prevent releases of pollutants that may adversely affect coastal waters (31 TAC §26.22(c)). The rulemaking adoption is consistent with federal regulations relating to release detection and will be just as stringent. Retail service stations will continue to utilize a release detection method in accordance with 30 TAC §334.50. Therefore, in accordance with 31 TAC §29.22(a), the commission affirms that this rulemaking is consistent with CMP goals and policies.
Promulgation and enforcement of this rule will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rule is consistent with these CMP goals and policies, and because this rule does not create or have a direct or significant adverse effect on any coastal natural resource areas.
The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.
Public Comment
The commission held a public hearing on October 19, 2023. The comment period closed on October 23, 2023. The commission received one comment from the Texas Food and Fuel Association (TFFA) in support of the amendment. No comments were received in opposition to the amendment, and no comments were received that suggested changes to the amendment.
Response to Comments
Comment
Commenter expressed support of the rule amendment and referenced the impact of improved UST technology on release detection.
Response
TCEQ appreciates the support. No change to the rule was made in response to this comment.
Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amended section is also adopted under TWC, §26.348, which provides the commission authority to develop standards and methods of leak detection.
The adopted amendment implements TWC, §26.348.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 26, 2024.
TRD-202400291
Gitanjali Yadav
Deputy Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: February 15, 2024
Proposal publication date: September 22, 2023
For further information, please call: (512) 239-2678