Public Safety, Administration

Rule R698-5

Hazardous Chemical Emergency Response Commission

Notice of Proposed Rule

(Amendment)

DAR File No.: 35295
Filed: 09/27/2011 09:41:35 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

On 09/21/2011, the State Hazardous Chemical Emergency Response Commission (SERC) met in a regularly scheduled meeting and voted by unanimous vote to amend the adopted administrative rules. The SERC decided to add an additional member to the SERC Advisory Committee and add proposed administrative rules to create the needed steps required for a Local Emergency Planning Committee (LEPC) to dissolve. It is also proposed that every July the LEPCs submit to the SERC a current list of voting members to include the chair and vice chair. The SERC also made a couple of minor changes to the rule, to include one new definition, and to add the ability of the rule to be properly used and understood.

Summary of the rule or change:

The SERC proposed to make the following amendments to the administrative rule as follows: 1) in Subsection R698-5-2(2.6), the SERC proposed to add the definition of USC meaning United States Code; 2) in Subsection R698-5-3(3.2.9), the SERC proposed to add an additional member to the SERC Advisory Board representing the Utah National Guard; 3) in Subsection R698-5-4(4.2), the SERC proposed to make amendments that clarifies currently enacted administrative rules in the procedures to create a Local Emergency Planning Committee (LEPC); 4) in Subsection R698-5-4(4.3), the SERC proposed to create rules that establishes the procedure required for an LEPC to dissolve, the transfer of remaining funds, notification to the facilities involved with the LEPC that submitted chemical inventory to the LEPC, and stating the address of the LEPC that will assume the duties of the dissolving LEPC; and 5) in Subsection R698-5-4(4.4), the SERC proposed to establish the requirement that by July 1 of each year all existing LEPCs shall submit to the SERC a current list of members of the LEPC and the contact information for the chair and vice chair of the LEPC.

State statutory or constitutional authorization for this rule:

• Section 63K-3-301

Anticipated cost or savings to:

the state budget:

The only anticipated cost to the state budget would be the addition of a representative to the SERC Advisory Committee that would represent the Utah National Guard. The cost would be adsorbed by the Utah National Guard for the representative's time to be involved as a member of the SERC Advisory Committee.

local governments:

The only anticipated cost or savings to local government would be the cost if a Local Emergency Planning Committee (LEPC) would dissolve and another LEPC would be required to assume the dissolving LEPCs duties. There would be a savings from the dissolving of the LEPC and yet an anticipated cost to the LEPC that would be required to assume the duties of the dissolving LEPC.

small businesses:

There is no aggregate anticipated cost or savings to small businesses because the proposed amendments and additions to the administrative rule do not effect small businesses. The only effect noted would be the changing of addresses from the dissolving Local Emergency Planning Committee (LEPC) to the LEPC that will assume the duties of the dissolving LEPC. This would require small businesses to change mailing addresses but would not be an anticipated cost.

persons other than small businesses, businesses, or local governmental entities:

There is no aggregate anticipated cost or savings to persons other small businesses, businesses or local government entities because these persons are not affected by the proposed amendments to the administrative rule.

Compliance costs for affected persons:

The only compliance costs for affected persons to enact the proposed amendments to the administrative rule would be to the Utah National Guard for the additional member of the SERC Advisory Committee and the cost of the time for that person to participate in the SERC Advisory Committee meetings.

Comments by the department head on the fiscal impact the rule may have on businesses:

As a voting member of the State Hazardous Chemical Emergency Response Commission (SERC), there is no fiscal impact to businesses from the enactment of these proposed administrative rule amendments except to change mailing addresses if an LEPC decides to dissolve.

Lance Davenport, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Administration
CALVIN L RAMPTON COMPLEX
4501 S 2700 W 1ST FLR
SALT LAKE CITY, UT 84119-5994

Direct questions regarding this rule to:

• Brent Halladay at the above address, by phone at 801-284-6352, by FAX at 801-284-6351, or by Internet E-mail at bhallada@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2011

This rule may become effective on:

11/21/2011

Authorized by:

Lance Davenport, Commissioner

R698. Public Safety, Administration.

R698-5. Hazardous Chemical Emergency Response Commission.

R698-5-1. Adoption, Title, Purpose, and Prohibitions.

Pursuant to Section 63K-3-301(2), Utah Code Annotated 1953, the Department of Public Safety adopts minimum rules establishing a state hazardous chemical emergency response commission advisory committee, the creation, modification or dissolving of local emergency planning committees, and supervising the overall planning and direction of the local emergency planning committees.

 

R698-5-2. Definitions.

2.1 "Advisory Committee" means State Emergency Response Commission Advisory Committee.

2.2 "EPCRA" means Emergency Planning and Community Right-to-Know Act of 1986.

2.3 "LEPC" means Local Emergency Planning Committee.

2.4 "SERC" means State Hazardous Chemical Emergency Response Commission.

2.5 "SERC Advisory Committee" means State Hazardous Chemical Emergency Response Commission Advisory Committee.

2.6 "USC" means United States Code.

 

R698-5-3. State Emergency Response Commission Advisory Committee.

3.1 There is created by the Department of Public Safety, the State Hazardous Chemical Emergency Response Commission Advisory Committee, whose duties are to provide direction to the SERC in the following matters: the creation, modification or dissolving of local emergency planning committees; methods and procedures to improve the effectiveness of the LEPC; the review of LEPC hazardous materials emergency response plans; the development of procedures for collection, processing, use and public access to information submitted as required by EPCRA; procedures for the distribution of funding to each LEPC obtained through the US Department of Transportation Hazardous Materials Emergency Preparedness Grant; [and] assist in stated hazardous materials emergency response planning efforts ; and, the review of the Statewide Hazardous Materials Plan (ESF10).

3.2 The Advisory Committee's members shall be appointed by the SERC, shall serve four year terms, and shall consist of the following members:

3.2.1 A member representing the hazardous chemical transportation industry.

3.2.2 Two members representing fixed site regulated industries.

3.2.3 A member representing the environmental cleanup contractors.

3.2.4 A member representing the local health departments.

3.2.5 A member representing the urban LEPC.

3.2.6 A member representing the rural LEPC.

3.2.7 A member representing the Hazardous Materials Advisory Council.

3.2.8 A member representing established environmental interest groups.

3.2.9 A member representing the Utah National Guard.

3.2.[9]10 Two members from the general public.

3.3 The Advisory Committee shall meet quarterly or as directed, and a majority of the members shall be present to constitute a quorum.

3.4 The Advisory Committee shall select one of its members to act in the position of chair, and another member to act as vice chair. The chair and vice chair shall serve one year terms on a calendar year basis. Elections for chair and vice chair shall occur at the meeting conducted in the first quarter of each calendar year. If voted upon by the Advisory Committee, the vice chair will become the chair the next succeeding calendar year.

3.5 If an Advisory Committee member has two or more unexcused absences during a 12 month period, from regularly scheduled meetings, it is considered grounds for dismissal pending review by the SERC.

3.6 A member of the Advisory Committee that cannot be in attendance, may have a representative of their respective organization attend and vote by proxy for that member or the member may have another Advisory Committee member vote by proxy, if submitted and approved by the chair prior to the meeting.

3.7 The Chair or Vice Chair of the Advisory Committee shall report to the SERC the activities of the Advisory Committee at regularly scheduled SERC meetings. A member of the Advisory Committee may report to the SERC the

activities of the Advisory Committee in the absence of the Chair or Vice Chair.

3.8 The Advisory Committee shall consider all subjects presented to them, subjects assigned to them by the SERC, and shall report their recommendations to the SERC at scheduled SERC meetings.

3.9 One-half of the members of the Advisory Committee shall be reappointed or replaced by the SERC every two years. When a vacancy occurs in the Advisory Committee, a replacement shall be appointed by the SERC to complete the remainder of the term.

3.10 Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.

3.10.1 Members may decline to receive per diem and expenses for their service.

3.11 State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the board at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.

3.11.1 State government officer and employee members may decline to receive per diem and expenses for their service.

3.12 Local government members who do not receive salary, per diem, or expenses from the entity that they represent for their service may receive per diem and expenses incurred in the performance of their official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.

3.12.1 Local government members may decline to receive per diem and expenses for their service.

 

R698-5-4. Local Emergency Planning Committee.

4.1 The creation, modification or dissolution of an LEPC shall be approved by the SERC.

[ 4.2 When evaluating the need to create an LEPC, the SERC Advisory Committee shall use the following criteria and procedures:

] 4.2[.1 The] A jurisdiction requesting the formation of an LEPC shall provide the following information to the SERC Advisory Committee :

4.2.1[a] A plan for coordinating the proposed additional LEPC with the county LEPC and/or any other city formed LEPC in that county.

4.2.2 [The jurisdiction requesting the formation of an LEPC shall provide to the SERC Advisory Committee an]An assessment of the jurisdiction's population and hazardous materials risk, to include but not limited to fixed facilities, rail, highways, and hazardous material pipelines[,].

4.2.3 [The jurisdiction requesting the formation of an LEPC shall provide to the SERC Advisory Committee a]A determination of how that agency, if allowed to form an LEPC, would meet all federal LEPC standards as identified in 42 USC Chapter 116.

4.3 An LEPC wishing to dissolve shall submit the following to the SERC Advisory Committee:

4.3.1 Reasons why the dissolution is in the best interest of the public served by the LEPC,

4.3.2 A formal agreement with another LEPC addressing:

4.3.2.1 The assumption of LEPC duties identified in 42 USC Chapter 116,

4.3.2.2 The transfer of remaining LEPC operational funds,

4.3.2.3 The assumption of outstanding LEPC financial obligations,

4.3.3 A plan to notify facilities located within the jurisdiction of the dissolving LEPC who submitted chemical inventory or chemical emergency planning information to the LEPC within the previous year, providing notice of the LEPC dissolution and providing the name and mailing address of the LEPC assuming the dissolving LEPC duties.

4.4 By July 1 of each year LEPCs shall submit to the SERC Advisory Committee: a current list of voting members, the group or organization represented by each voting member, a designation of and contact information for the LEPC chair, or co-chairs, and vice-chairs.

4.[3]5 The SERC Advisory Committee shall evaluate [the] information submitted [by the jurisdiction] in accordance with Section s [4.1]4.2, 4.3 or 4.4 of these rules and shall make a recommendation to the SERC concerning LEPC creation, modification or dissolution.

4.[4]6 The SERC shall include the recommendation of the SERC Advisory Committee, all information submitted [by the requesting agency]to the SERC Advisory Committee, and [the views]comments of [the county]directly affected LEPC s, in its decision to approve or disapprove the formation , modification or dissolution of [a new]an LEPC.

4.[5]7 The LEPC shall coordinate its overall planning and direction with the SERC. The SERC shall supervise the overall planning and direction of the LEPC.

4.[6]8 The LEPC shall submit a copy of their hazardous materials emergency response plan to the SERC for review.

4.[7]9 The SERC shall approve the amount of US Department of Transportation Hazardous Materials Emergency Preparedness Grant funding to be given to each LEPC and shall establish criteria for that funding to be awarded.

 

R698-5-5. Adjudicative Proceedings.

5.1 All adjudicative proceedings performed by the SERC shall proceed informally as authorized by UCA, Sections 63G-4-202 and 63G-4-203.

5.2 An agency whose request to create, modify or dissolve an LEPC is denied by the SERC shall have an opportunity for a hearing before the SERC if requested by that agency within 20 days after receiving notice.

5.3 All adjudicative proceedings, other than criminal prosecution taken by the SERC, shall commence in accordance with UCA, Section 63G-4-201.

5.4 The SERC shall act as the hearing authority, and shall convene after timely notice to all parties involved. The members of the SERC acting as the hearing authority shall consist of the Commissioner of Public Safety and the Executive Director of the Department of Environmental Quality. The SERC shall also be joined when acting as the hearing authority by a representative from the Attorney General's Office.

5.5 After acting as the hearing authority, the SERC shall direct the secretary to issue a signed order to the agency involved giving the decision of the SERC within a reasonable time of the hearing pursuant to UCA, Section 63G-4-203.

5.6 Reconsideration of the SERC decision may be requested in writing within 20 days of the date of the decision pursuant to UCA, Section 63G-4-302.

5.7 Judicial review of all final SERC actions resulting from informal adjudicative proceedings shall be conducted pursuant to UCA, Section 63G-4-402.

 

KEY: state emergency response commission

Date of Enactment or Last Substantive Amendment: [December 22, 2010]November 21, 2011

Authorizing, and Implemented or Interpreted Law: 63K-3-301