DAR File No. 28516

Environmental Quality, Environmental Response and Remediation

R311-200

Underground Storage Tanks: Definitions

NOTICE OF PROPOSED RULE

DAR File No.: 28516
Filed: 02/15/2006, 10:47
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The definition for "No Further Action determination" at Subsection R311-200-1(25) was added to define terminology used within the changes made to Section R311-211-6. (DAR NOTE: The proposed amendment to Rule R311-211 is under DAR No. 28519 in this issue.)

Summary of the rule or change:

This change adds a definition for "No Further Action determination".

State statutory or constitutional authorization for this rule:

Sections 19-6-105 and 19-6-403

Anticipated cost or savings to:

the state budget:

None--There is no financial impact anticipated for defining terminology used within the changes made to Section R311-211-6. The notice of proposed rule amendment for Rule R311-211 details the anticipated financial impact.

local governments:

None--There is no financial impact anticipated for defining terminology used within the changes made to Section R311-211-6.

other persons:

None--There is no financial impact anticipated for defining terminology used within the changes made to Section R311-211-6.

Compliance costs for affected persons:

None--There is no financial impact anticipated for defining terminology used within the changes made to Section R311-211-6.

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

There should be no impact on businesses from this rule change. The change only defines what is meant by "No Further Action determination" for use in cleanup of leaking underground storage tank sites. Dianne R. Nielson, Executive Director

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

Direct questions regarding this rule to:

Gary Astin at the above address, by phone at 801-536-4103, by FAX at 801-359-8853, or by Internet E-mail at gastin@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:

03/31/2006

Interested persons may attend a public hearing regarding this rule:

3/28/2006 at 2:00 PM, Department of Environmental Quality, 168 N 1950 W, Room 201, Salt Lake City, UT

This rule may become effective on:

05/15/2006

Authorized by:

Dianne R. Nielson, Executive Director

RULE TEXT

R311. Environmental Quality, Environmental Response and Remediation.

R311-200. Underground Storage Tanks: Definitions.

R311-200-1. Definitions.

(a) Refer to Section 19-6-402 for definitions not found in this rule.

(b) For purposes of underground storage tank rules:

(1) "Actively participated" for the purpose of the certification programs means that the individual applying for certification must have had operative experience for the entire project from start to finish, whether it be an installation or a removal.

(2) "As built drawing" (as constructed drawing, record drawing) for purpose of notification refers to a drawing to scale of newly constructed USTs. The UST shall be referenced to buildings, streets and limits of the excavation. Drawing size shall be limited to 8-1/2" x 11" if possible, but shall in no case be larger than 11" x 17".

(3) "Automatic line leak detector test" means a test that simulates a leak, and causes the leak detector to restrict or shut off the flow of regulated substance through the piping or trigger an audible or visual alarm.

(4) "Backfill" means any foreign material, usually pea gravel or sand, which usually differs from the native soil and is used to support or cover the underground storage tank system.

(5) "Burden" means the addition of the percentage of indirect costs which are added to raw labor costs.

(6) "Certificate" means a document that evidences certification.

(7) "Certification" means approval by the Executive Secretary or the Board to engage in the activity applied for by the individual.

(8) "Change-in-service" means the continued use of an UST to store a non-regulated substance.

(9) "Confirmation sample" means an environmental sample taken, excluding closure samples as outlined in Section R311-205-2, during soil overexcavation or any other remedial or investigation activities conducted for the purpose of determining the extent and degree of contamination.

(10) "Customary, reasonable and legitimate expenses" means costs incurred during the investigation, abatement and corrective actions that address a release which are normally charged according to accepted industry standards, and which must be justified in an audit as an appropriate cost. The costs must be directly related to the tasks performed.

(11) "Customary, reasonable and legitimate work" means work for investigation, abatement and corrective action that is required to reduce contamination at a site to levels that are protective of human health and the environment. Acceptable levels may be established by risk-based analysis and taking into account current or probable land use as determined by the Executive Secretary following the criteria in R311-211.

(12) "Department" means the Utah Department of Environmental Quality.

(13) "Eligible exempt underground storage tank" for the purpose of eligibility for the Utah Petroleum Storage Tank Trust Fund means a tank specified in 19-6-415(1).

(14) "Environmental Consultant" or "Consultant" is an individual who provides or contracts to provide information, an opinion, or advice for a fee, or in conjunction with services for which a fee is charged, relating to underground storage tank management, release abatement, investigation, corrective action, or evaluation.

(15) "Environmental sample" is a groundwater, surface water, air, or soil sample collected, using appropriate methods, for the purpose of evaluating environmental contamination.

(16) "EPA" means the United States Environmental Protection Agency.

(17) "Expeditiously disposed of" means disposed of as soon as practical so as not to become a potential threat to human health or safety or the environment, whether foreseen or unforeseen as determined by the Executive Secretary.

(18) "Fiscal year" means a period beginning July 1 and ending June 30 of the following year.

(19) "Full installation" for the purposes of 19-6-411(2) means the installation of an underground storage tank.

(20) "Groundwater sample" is a sample of water from below the surface of the ground collected according to protocol established in Rule R311-205.

(21) "Groundwater and soil sampler" is the person who performs environmental sampling for compliance with Utah underground storage tank rules.

(22) "In use" means that an operational, inactive or abandoned underground storage tank contains a regulated substance, sludge, dissolved fractions, or vapor which may pose a threat to human health, safety or the environment as determined by the Executive Secretary.

(23) "Lapse" in reference to the Certificate of Compliance and coverage under the Petroleum Storage Tank Trust Fund, means to terminate automatically.

(24) "Native soil" means any soil that is not backfill material, which is naturally occurring and is most representative of the localized subsurface lithology and geology.

(25) "No Further Action determination" means that the Executive Secretary has evaluated information provided by responsible parties or others about the site and determined detectable petroleum contamination from a particular release does not present an unacceptable risk to public health or the environment based upon Board established criteria in R311. If future evidence indicates contamination from that release may cause a threat, further corrective action may be required.

(26) "Notice of agency action" means any enforcement notice, notice of violation, notice of non-compliance, order, or letter issued to an individual for the purpose of obtaining compliance with underground storage tank rules and regulations.

(2[6]7) "Occurrence" in reference to Subsection R311-208-4 means a separate petroleum fuel delivery to a single tank.

(2[7]8) "Owners and operators" means either an owner or operator, or both owner and operator.

(2[8]9) "Overexcavation" means any soil removed in an effort to investigate or remediate in addition to the minimum amount required to remove the UST or take environmental samples during UST closure activities as outlined in Section R311-205-2.

([29]30) "Permanently closed" means underground storage tanks that are removed from service following guidelines in 40 CFR Part 280 Subpart G adopted by Section R311-202.

(3[0]1) "Petroleum storage tank" means a storage tank that contains petroleum as defined by Section 19-6-402(20).

(3[1]2) "Petroleum storage tank fee" means the fee which capitalizes the Petroleum Storage Tank Trust Fund as established in Section 19-6-409.

(3[2]3) "Petroleum storage tank trust fund" means the fund created by Section 19-6-409.

(3[3]4) "Registration fee" means underground storage tank registration fee.

(3[4]5) "Regulated substance" means any substance defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act "CERCLA" of 1980, but not including any substance regulated as a hazardous waste under subtitle C, and petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure, 60 degrees Fahrenheit and 14.7 pounds per square inch absolute. The term "regulated substance" includes petroleum and petroleum-based substances comprised of a complex blend of hydrocarbons derived from crude oil through processes of separation, conversion, upgrading, and finishing, and includes motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils.

(3[5]6) "Site assessment" or "site check" is an evaluation of the level of contamination at a site which contains or has contained an UST.

(3[6]7) "Site assessment report" is a summary of relevant information describing the surface and subsurface conditions at a facility following any abatement, investigation or assessment, monitoring, remediation or corrective action activities as outlined in Rule R311-202, Subparts E and F.

(3[7]8) "Site investigation" is work performed by the owner or operator, or his designee, when gathering information for reports required for Utah underground storage tank rules.

(3[8]9) "Site plat" for purpose of notification, or reporting, refers to a drawing to scale of USTs in reference to the facility. The scale should be dimensioned appropriately. Drawing size shall be limited to 8-1/2" x 11" if possible, but shall in no case be larger than 11" x 17". The site plat should include the following: property boundaries; streets and orientation; buildings or adjacent structures surrounding the facility; present or former UST(s); extent of any excavation(s) and known contamination and location and volume of any stockpiled soil; locations and depths of all environmental samples collected; locations and total depths of monitoring wells, soil borings or other measurement or data points; type of ground-cover; utility conduits; local land use; surface water drainage; and other relevant features.

([39]40) "Site under control" means that the site of a release has been actively addressed by the owner or operator who has taken the following measures:

(A) Fire and explosion hazards have been abated.

(B) Free flow of the product out of the tank has been stopped.

(C) Free product is being removed from the soil, groundwater or surface water according to a work plan or corrective action plan approved by the Executive Secretary.

(D) Alternative water supplies have been provided to affected parties whose original water supply has been contaminated by the release.

(E) A soil or groundwater management plan or both have been submitted for approval by the Executive Secretary.

(4[0]1) "Soil sample" is a sample collected following the protocol established in Rule R311-205.

(4[1]2) "Surface water sample" is a sample of water, other than a groundwater sample, collected according to protocol established in Rule R311-205.

(4[2]3) "Tank" is a stationary device designed to contain an accumulation of regulated substances and constructed of non-earthen materials, such as concrete, steel, or plastic, that provide structural support.

(4[3]4) "UAPA-exempt orders" are orders that are exempt from requirements of the Utah Administrative Procedures Act under Section 63-46b-1(2)(k), Utah Code Annot.

(4[4]5) "Underground storage tank" or "UST" means any one or combination of tanks, including underground pipes connected thereto and any underground ancillary equipment and containment system, that is used to contain an accumulation of regulated substances, and the volume of which, including the volume of underground pipes connected thereto, is ten percent or more beneath the surface of the ground, regulated under Subtitle I, Resource Conservation and Recovery Act, 42 U.S.C., Section 6991c et seq.

(4[5]6) "Underground storage tank registration fee" means the fee assessed by Section 19-6-408 on tanks located in Utah.

(4[6]7) "UST inspection" is the inspection required by state and federal underground storage tank rules and regulations during the installation, testing, repairing, operation or maintenance, and removal of regulated underground storage tank.

(4[7]8) "UST inspector" is an individual who performs underground storage tank inspections for compliance with state and federal rules and regulations.

(4[8]9) "UST installation" means the installation of an underground storage tank, including construction, placing into operation, building or assembling an underground storage tank in the field. It includes any operation that is critical to the integrity of the system and to the protection of the environment, which includes:

(A) pre-installation tank testing, tank site preparation including anchoring, tank placement, and backfilling;

(B) vent and product piping assembly;

(C) cathodic protection installation, service, and repair;

(D) internal lining;

(E) secondary containment construction; and

(F) UST repair and service.

([49]50) "UST installation permit fee" means the fee established by Section 19-6-411(2)(a)(ii).

(5[0]1) "UST installer" means an individual who engages in underground storage tank installation.

(5[1]2) "UST removal" means the removal of an underground storage tank system, including permanently closing and taking out of service all or part of an underground storage tank.

(5[2]3) "UST remover" means an individual who engages in underground storage tank removal.

(5[3]4) "UST tester" means an individual who engages in UST testing.

(5[4]5) "UST testing" means a testing method which can detect leaks in an underground storage tank system, or testing for compliance with corrosion protection requirements. Testing methods must meet applicable performance standards of 40 CFR 280.40(a)(3), 280.43(c), and 280.44(b) for tank and product piping tightness testing, 280.44(a) for automatic line leak detector testing, and 280.31(b) for cathodic protection testing.

KEY: [hazardous substances, ]petroleum, underground storage tanks

Date of Enactment or Last Substantive Amendment: [September 9, 2004]2006

Notice of Continuation: March 6, 2002

Authorizing, and Implemented or Interpreted Law: 19-6-105; 19-6-403

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Gary Astin at the above address, by phone at 801-536-4103, by FAX at 801-359-8853, or by Internet E-mail at gastin@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.