DAR File No. 40834

Public Safety, Administration

Rule R698-5

Hazardous Chemical Emergency Response Commission

Notice of Proposed Rule

(Amendment)

DAR File No.: 40834
Filed: 09/28/2016 10:34:03 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clarify the information that the Utah Department of Public Safety (DPS), Division of Emergency Management (DEM) needs from each Local Emergency Planning Committee (LEPC). Currently, the rule requires the information be reported to DEM, as well as the Utah Department of Environmental Quality (DEQ). Additionally, the amendment will outline the exact information that is needed, therefore, streamlining the information that is received by the individual LEPC's, as well as those submitting Tier II reports. In addition, formatting changes are made to the rule.

Summary of the rule or change:

The proposed amendment will streamline the information that is required of each LEPC. The amendment would allow all LEPC information to be collected and submitted to DEM rather than DEQ, Department of Public Safety (DPS), and DEM. In addition, Tier II reports are required to be submitted through an online portal, which eliminates the need for DEQ to have a list of all 20 members of a LEPC. These changes will not affect the state of Utah's compliance with Emergency Planning and Community Right-to-Know Act (EPCRA), as well as Title 3 of the Superfund Amendments and Reauthorization Act (SARA). A definition is added to define Tier II chemical inventory report. The information previously numbered as Subsections R698-5-3(3.10) through (3-12-1) has been removed from the rule because it is located in Subsection 53-2a-702(1)(b). The section previously numbered as Subsection R968-5-4(4.4) has been renumbered to Subsection R698-5-5(3) because it was out of place in the original rule. The information was previously inserted between two sections that address dissolution of an LEPC.

Statutory or constitutional authorization for this rule:

• Section 53-2a-702

Anticipated cost or savings to:

the state budget:

The purpose of the State Emergency Response Commission (SERC) and LEPCs are to meet the unfunded mandates of EPCRA and SARA, Title 3. There is no budget, federal or state, allocated to carry out these federal mandates. Therefore, there would be no aggregate anticipated cost or savings to the state budget nor would there be any increased costs.

local governments:

LEPCs are comprised of local governments and private sector volunteers to coordinate emergency response plans and compliance with EPCRA and SARA, Title 3. However, there is no budget attached to these committees, but the changes in the rule would save time and effort on the local government party by reducing the amount of information they have to provide to the SERC.

small businesses:

As the private sector comprises part of the LEPCs, this would reduce the burden placed upon small businesses through a streamlined reporting process. This could create a slight savings through reduced work time spent on reporting; however, the exact amount cannot be determined as the savings will vary from business to business and are likely to be nonsubstantial, if any.

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

The proposed amendment would not affect the general public nor would the changes increase the costs of tax payer dollars. The amendment would streamline the reporting process, which would facilitate quicker response times for a HazMat spill or chemical release.

Compliance costs for affected persons:

There would be no compliance costs associated with implementation and compliance of this amendment. Either to state or local government or the private sector and the general public at large.

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

I have reviewed the rule and find that the proposed changes will not have a negative fiscal impact on businesses. It is anticipated that the changes will result in an improvement in the reporting process, which could potentially result in a cost savings to businesses.

Keith D. Squires, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Office 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:

• Tara Behunin at the above address, by phone at 801-538-3426, by FAX at 801-538-3770, or by Internet E-mail at tarabehunin@utah.gov
• Kim Gibb at the above address, by phone at 801-556-8198, by FAX at 801-964-4482, or by Internet E-mail at kgibb@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:

11/14/2016

This rule may become effective on:

11/21/2016

Authorized by:

Keith Squires, Commissioner

R698. Public Safety, Administration.

R698-5. Hazardous Chemical Emergency Response Commission.

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

[Pursuant to Section 63K-3-301(2), Utah Code Annotated 1953, the Department of Public Safety adopts minimum rules establishing ]This rule provides the procedures for 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. Authority.

This rule is required by Subsection 53-2a-702(2).

 

R698-5-[2]3 . Definitions.

[2.1](1) "Advisory Committee" means State Emergency Response Commission Advisory Committee.

[2.2](2) "EPCRA" means Emergency Planning and Community Right-to-Know Act of 1986.

[2.3](3) "LEPC" means Local Emergency Planning Committee.

[2.4](4) "SERC" means State Hazardous Chemical Emergency Response Commission.

[2.5](5) "SERC Advisory Committee" means State Hazardous Chemical Emergency Response Commission Advisory Committee.

[2.6 "USC" means United States Code.]

(6) "Tier II chemical inventory report" means a report required to be submitted to the LEPC under Section 312 of the Emergency Planning and Community Right-to-Know Act, which was enacted as Title III of the Superfund Amendments and Reauthorization Act of 1986, Public Law 99-499, 42 U.S.C. Section 11022.

 

R698-5-[3]4 . State Emergency Response Commission Advisory Committee.

[3.1](1) There is created by the Department of Public Safety, the State Hazardous Chemical Emergency Response Commission Advisory Committee[, whose].

(2) The Advisory Committee's duties are to provide direction to the SERC in the following matters:

(a) the creation, modification or dissolving of local emergency planning committees;

(b) methods and procedures to improve the effectiveness of the LEPC;

(c) the review of LEPC hazardous materials emergency response plans;

(d) the development of procedures for collection, processing, use and public access to information submitted as required by EPCRA;

(e) procedures for the distribution of funding to each LEPC obtained through the US Department of Transportation Hazardous Materials Emergency Preparedness Grant;

(f) [assist in stated ]hazardous materials emergency response planning efforts; and,

(g) the review of the [Statewide Hazardous Materials Plan (ESF10)]State Emergency Operations Plan, Emergency Support Function 10 -- Hazardous Materials Annex.

[3.2](3) 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) A member representing the hazardous chemical transportation industry.

[3.2.2](b) Two members representing fixed site regulated industries.

[3.2.3](c) A member representing the environmental cleanup contractors.

[3.2.4](d) A member representing the local health departments.

[3.2.5](e) A member representing the urban LEPC.

[3.2.6](f) A member representing the rural LEPC.

[3.2.7](g) A member representing the Hazardous Materials Advisory Council.

[3.2.8](h) A member representing established environmental interest groups.

[3.2.9](i) A member representing the Utah National Guard.

[3.2.10](j) Two members from the general public.

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

[3.4](5)(a) The Advisory Committee shall select one of its members to act in the position of chair, and another member to act as vice chair.

(b) The chair and vice chair shall serve one year terms on a calendar year basis.

(c) Elections for chair and vice chair shall occur at the meeting conducted in the first quarter of each calendar year.

(d) If voted upon by the Advisory Committee, the vice chair will become the chair the next succeeding calendar year.

[3.5](6) 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](7) A member of the Advisory Committee that cannot be in attendance[,] may :

(a) have a representative of their respective organization attend and vote by proxy for that member ; or[the member may]

(b) have another Advisory Committee member vote by proxy, if submitted and approved by the chair prior to the meeting.

[3.7](8)(a) The [C]chair or [V]vice [C]chair of the Advisory Committee shall report to the SERC the activities of the Advisory Committee at regularly scheduled SERC meetings[.]; or

(b) [A]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](9) The Advisory Committee shall :

(a) consider all subjects presented to them[,];

(b) consider subjects assigned to them by the SERC[,]; and

(c) [shall ]report their recommendations to the SERC at scheduled SERC meetings.

[3.9](10) One-half of the members of the Advisory Committee shall be reappointed or replaced by the SERC every two years.

(11) 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]5 . Local Emergency Planning Committee.

[4.1](1) The creation, modification or dissolution of an LEPC shall be approved by the SERC.

[4.2](2) A jurisdiction requesting the formation of an LEPC shall provide the following information to the SERC Advisory Committee:

[4.2.1](a) [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](b) [A]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[.]; and

[4.2.3](c) 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.

(3) By July 1 of each year LEPCs shall submit the following information to the Utah Department of Public Safety, Division of Emergency Management, contact information for the LEPC:

(a) chair;

(b) co-chairs;

(c) vice-chairs; and

(d) members employed by a local government organization designated to receive tier II chemical inventory reports.

[4.3](4) An LEPC wishing to dissolve shall submit the following to the SERC Advisory Committee:

[4.3.1](a) [R]reasons why the dissolution is in the best interest of the public served by the LEPC[,];

[4.3.2](b) [A]a formal agreement with another LEPC addressing:

[4.3.2.1](i) [T]the assumption of LEPC duties identified in 42 U .S .C . Chapter 116[,];

[4.3.2.2](ii) [T]the transfer of remaining LEPC operational funds[,]; and

[4.3.2.3] (iii) [T] the assumption of outstanding LEPC financial obligations[,]; and

[4.3.3](c) [A]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.]

[4.5](5) The SERC Advisory Committee shall evaluate information submitted in accordance with [Sections 4.2, 4.3 or 4.4 of these rules]Subsections R698-5-4(2) through R698-5-4(4) and shall make a recommendation to the SERC concerning LEPC creation, modification or dissolution.

[4.6 The SERC shall include the recommendation of the SERC Advisory Committee, all information submitted to the SERC Advisory Committee, and comments of directly affected LEPCs, in its decision to approve or disapprove the formation, modification or dissolution of an LEPC.]

(6) The SERC shall consider the following in its decision to approve or disapprove the formation, modification or dissolution of an LEPC:

(a) the recommendation of the SERC Advisory Committee;

(b) all information submitted to the SERC Advisory Committee; and

(c) the comments of directly affected LEPCs.

[4.7](7) The LEPC shall coordinate its overall planning and direction with the SERC.

(i) The SERC shall supervise the overall planning and direction of the LEPC.

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

[4.9](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]6 . Adjudicative Proceedings.

[5.1](1) All adjudicative proceedings performed by the SERC shall proceed informally as authorized by [UCA, ]Sections 63G-4-[202]201 [and]through 63G-4-203.

[5.2](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](4) The SERC shall act as the hearing authority, and shall convene after timely notice to all parties involved.

(a) The members of the SERC acting as the hearing authority shall consist of :

(i) the Commissioner of the Department of Public Safety ; and

(ii) the Executive Director of the Department of Environmental Quality.

(b) The SERC shall also be joined when acting as the hearing authority by a representative from the Attorney General's Office.

[5.5](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](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](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: [November 21, 2011]2016

Notice of Continuation: August 14, 2014

Authorizing, and Implemented or Interpreted Law: [63K-3-301]53-2a-702