Environmental Quality, Environmental Response and Remediation

Rule R311-203

Underground Storage Tanks: Technical Standards

Five-Year Notice of Review and Statement of Continuation

DAR File No.: 36047
Filed: 04/10/2012 10:37:45 AM

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Section 19-6-403 of the Utah Underground Storage Tank (UST) Act gives the Utah Solid and Hazardous Waste Control Board authority to regulate USTs and petroleum storage tanks, and make rules for registration of tanks and administration of the petroleum storage tank program. Subsection 19-6-105(1)(g) of the Solid and Hazardous Waste Act gives the Board the authority to establish standards governing USTs. Section 19-6-408 of the UST Act provides for the assessment of an annual underground storage tank registration fee on regulated USTs. Subsection 19-6-411(2)(b) of the UST Act requires the Board to make rules specifying which portions of an underground storage tank installation shall be subject to the permitting fees when less than a full UST system is installed.

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

Comments were received from stakeholders during an informal comment period in April 2008, when the Division of Environmental Response and Remediation (DERR) proposed a new section (Section R311-203-6) regarding secondary containment for newly-installed underground storage tanks and piping, and notification requirements subsection (Subsection R311-203-2(5)) when UST owner/operators place an alternative fuel into an UST. The secondary containment comments recommended that DERR not provide for an exception to the requirements for new installations that are located more than 1,000 feet from a municipal water supply or potable drinking water well. The alternative fuel comments recommended that DERR provide information on "safe" equipment that could be used with the new fuels, or specify in the rules what equipment is compatible with the new fuels, so retailers would not be required to notify DERR whenever the alternative fuels were used.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

The rule is necessary for continued operation of the Underground Storage Tank program. It clarifies when UST owner/operators and installers must notify on new installations, upgrades, and changes of ownership. It provides for the administration of the registration fee mandated by Section 19-6-408 of the Utah UST Act, the installer permit fees mandated by Section 19-6-411, and the installer notification requirements mandated by Section 19-6-407. It provides clarification of the tank testing requirements in Section 19-6-413 of the UST Act and subparts C (General Operating Requirements) and D (Release Detection) of 40 CFR 280, the federal UST regulations. Therefore, this rule should be continued. The secondary containment comments received were considered, but the final rule that became effective kept the exemption. The exemption would apply only in rare instances, and has little effect on new UST installations. For several years, industry practice has been to install tanks and piping with secondary containment almost exclusively. It was also determined that the exemption should be kept because it is part of the 2005 Energy Policy Act, and Utah's rule should not be more stringent than the Federal law. The comments on alternative fuels were thought to be unworkable. It would be nearly impossible to specify what equipment was determined to be compatible, and it would put the DERR in a position of possibly being held liable for a release or other situation caused by incompatibility of fuels and equipment. It was determined that the 30-day advance notice requirement would be taken out of the proposed rule, and the rule would require notice only if a tank was to store an alternative fuel with percentages of alternative components greater than current standards.

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

Authorized by:

Brent Everett, Director

Effective:

04/10/2012