BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.56.308 through 17.56.310 and the adoption of New Rules I and II pertaining to operating tags and delivery prohibition

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND ADOPTION   (UNDERGROUND STORAGE TANKS)

 

            TO: All Concerned Persons

 

            1. On July 15, 2011, at 9:30 a.m., the Department of Environmental Quality will hold a public hearing in Room 35, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules.

 

            2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, please contact Elois Johnson, Paralegal, no later than 5:00 p.m., July 5, 2011, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

 

            3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

 

            17.56.308 OPERATING PERMIT REQUIRED (1) After March 31, 2003, except as provided in (10) (9), a person may not place a regulated substance in, dispense a regulated substance from, or otherwise operate an underground storage tank system unless the owner or operator has a valid operating permit and an operating tag for the system.

            (2) through (5) remain the same.

            (6) The department shall issue an operating tag for each underground storage tank for which the department has issued an operating permit as described in (3) and (5). The operating tag must be visibly affixed by the owner or operator to each tank's fill pipe or to another visible part of the tank if affixing the tag to the fill pipe is impracticable. If an operating permit is revoked, the owner or operator must remove each operating tag and return it to the department within 30 days of receipt of revocation.

            (7) (6) The department may suspend, revoke, or determine not to renew an operating permit and tag issued under this rule upon its finding that there is substantial evidence that:

            (a) through (c) remain the same.

            (8) (7) Except as provided in (9) (8), the department shall suspend or revoke an operating permit and tag issued under this rule according to the provisions of 75-11-512, MCA.

            (9) (8)  If the department determines that noncompliance with Title 75, chapter 11, part 5, MCA, or rules adopted thereunder this chapter, poses an immediate or substantial threat to the public health, safety, or environment, it may immediately revoke the operating permit and tag. A permittee whose operating permit and tag have has been revoked in accordance with this rule may request a hearing before the department. The department shall schedule a hearing within ten days of the request for hearing.

            (10) remains the same, but is renumbered (9).

 

            AUTH: 75-11-505, MCA

            IMP:  75-11-509, MCA

 

            REASON: The department is proposing to end the use of operating tags. The department does not have the resources to continue the issuance and renewal of operating tags. For tank identification and recordkeeping purposes, the department is proposing to implement the use of a "permanent nonexpiring tag," as described in New Rule I, that would not have to be renewed.

 

            17.56.309 REQUIREMENTS FOR COMPLIANCE INSPECTIONS

            (1) through (2) remain the same.

            (3) Underground storage tank systems that:

            (a)  under ARM 17.56.102(3), are exempt from ARM Title 17, chapter 56, subchapters 2, 3, and 4, are also exempt from compliance inspection requirements. Owners or operators of these underground storage tank systems may obtain an operating permit and tag by making a written request to the department and providing evidence, satisfactory to the department, that the UST systems qualify for this exemption; and

            (b) remains the same.

            (4) For an underground storage tank system that is installed before November 1, 2001, an initial inspection must occur no later than January 1, 2002.

            (5) through (7) remain the same, but are renumbered (4) through (6).

            (8) (7)  All underground storage tank systems at an individual facility, except as provided in (4), must be inspected at one time.

            (9) remains the same, but is renumbered (8).

            (10) (9)  The owner or operator shall submit to the department a follow-up inspection report either:

            (a)  within 30 seven days after completion of the corrective actions required under (9) (8), or at least 14 days before the expiration of the facility's operating permit, whichever occurs first; or

            (b) within another time frame determined by the department.

 

            AUTH: 75-11-505, 75-11-509, MCA

            IMP:  75-11-509, MCA

 

            REASON: The department is proposing to remove all references to operating tags for the same reason given in the statement of reasonable necessity for ARM 17.56.308.

            The department is proposing to delete (4) because the compliance dates have passed and it is now moot.

            The department is proposing to revise the number of days, from 30 to seven, for an owner or operator to submit a follow-up inspection report after the completion of the corrective actions. The department believes that seven days is more than enough time to submit a follow-up inspection report.

 

            17.56.310 CONDITIONAL, ONE-TIME FILL AND EMERGENCY OPERATING PERMITS (1) For an underground storage tank system installed after December 31, 2001, the department shall issue a conditional operating permit and tag upon the submission of all documentation required by ARM 17.56.1305, related to the installation of that underground storage tank system.

            (2) remains the same.

            (3) A conditional operating permit and tag issued under (1) or (2) expires 180 days after issuance.

            (4) through (5)(b) remain the same.

            (6) The department may issue an emergency operating permit to allow operation of an UST without a valid operating permit and tag when operation of the UST is necessary to protect the safety and welfare of persons, property, or national security from imminent harm or threat of harm, as follows:

            (a) through (d) remain the same.

 

            AUTH: 75-11-505, 75-11-509, MCA

            IMP:  75-11-509, MCA

 

            REASON: The department is proposing to remove all references to operating tags for the same reason given in the statement of reasonable necessity for ARM 17.56.308.

 

            4. The proposed new rules provide as follows:

 

            NEW RULE I PERMANENT NONEXPIRING TAG (1) For purposes of this rule, "permanent nonexpiring tag" means a tank tag issued by the department for an underground storage tank system for identification and recordkeeping purposes.

            (2) After September 1, 2011, the department shall issue a permanent nonexpiring tag for each underground storage tank for which the department has newly issued an operating permit as described in ARM 17.56.308(3) and (5). The tag must be visibly affixed by the owner or operator to each tank's fill pipe or to another visible part of the tank if affixing the tag to the fill pipe is impracticable.

 

            AUTH: 75-11-505, 75-11-509, MCA

            IMP: 75-11-509, MCA

 

            REASON: The department is proposing the use of permanent nonexpiring tags for the same reasons given in the statement of reasonable necessity for ARM 17.56.308 and 17.56.309 for ending the use of operating tags.

 

            NEW RULE II DELIVERY PROHIBITION (1) For purposes of meeting the delivery prohibition requirements of The Energy Policy Act of 2005, whenever the department finds that there has been significant noncompliance with Title 75, chapter 11, part 5, MCA, or with rules, permits, or orders issued pursuant to part 5, the department will classify such underground storage tank(s) as ineligible for delivery, deposit, or acceptance of product.

            (2) The department shall:

            (a) make every reasonable effort to notify tank owners, operators, or both prior to prohibiting the delivery, deposit, or acceptance of product;

            (b) notify product deliverers when an underground storage tank is ineligible for delivery, deposit, or acceptance of product;

            (c) issue a certificate that clearly identifies the ineligible underground storage tank classified in (1); and

            (d) issue an operating permit to the owner or operator within ten business days to reclassify an ineligible underground storage tank as eligible following correction of violations identified as significant noncompliance based on a follow-up inspection report submitted to the department in accordance with ARM 17.56.309(8).

            (3) The certificate issued in (2)(c) must be conspicuously displayed at the facility until the underground storage tank is reclassified as eligible for delivery, deposit, or acceptance of product.

 

            AUTH: 75-11-505, 75-11-509, MCA

            IMP: 75-11-590, MCA

 

            REASON: EPA's delivery prohibition guidance document "Grant Guidelines to States for Implementing the Delivery Prohibition Provision of the Energy Policy Act of 2005, EPA-510-R-06-003" provides:

 

            "Tank owners and operators and product deliverers are responsible for ensuring that product is not delivered, deposited, or accepted into an underground storage tank identified as ineligible to receive product. Therefore, a state must use a clear, concise mechanism or mechanisms for identifying ineligible underground storage tanks. The mechanism(s) a state uses must adequately indicate to product deliverers and underground storage tank owners/operators that an underground storage tank is ineligible to receive product.

            Some examples of mechanisms for identifying ineligible underground storage tanks include:

            (a) red tags attached to each fill pipe of the ineligible underground storage tank clearly identifying the tank as ineligible for delivery, deposit, or acceptance of product;

            (b) green tags attached to each fill pipe of the eligible underground storage tank clearly identifying the tank as eligible for delivery, deposit, or acceptance of product; or,

            (c) a certificate conspicuously displayed at the facility clearly identifying the underground storage tank(s) at the facility as eligible for delivery, deposit, or acceptance of product."

 

            The department is currently using a "green tag" system to satisfy the delivery prohibition requirements of the Energy Policy Act. Therefore, in New Rule II the department is proposing a "certificate" system to satisfy the delivery prohibition requirements of the Energy Policy Act.

 

            5. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., July 21, 2011. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

 

            6. Jane Amdahl, attorney, has been designated to preside over and conduct the hearing.

 

            7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supplies; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; e-mailed to ejohnson@mt.gov; or may be made by completing a request form at any rules hearing held by the department.

 

            8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

Reviewed by:                                                DEPARTMENT OF ENVIRONMENTAL

                                                                        QUALITY

 

/s/ James M. Madden                         BY: /s/ Richard H. Opper                        

JAMES M. MADDEN                                   RICHARD H. OPPER, Director

Rule Reviewer

 

            Certified to the Secretary of State, June 13, 2011.