No. 36045 (5-year Review): Rule R311-201. Underground Storage Tanks:Certification Programs and UST Operator Training

DAR File No.: 36045
Filed: 04/10/2012 10:33:28 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 the administration of the petroleum storage tank program and certification of UST installers, inspectors, testers, removers, and consultants. Subsection 19-6-105(1)(g) of the Solid and Hazardous Waste Act gives the Board the authority to establish standards governing USTs. Subsection 19-6-402(6)(a)(i) of the UST Act refers to education and experience standards established by Board rule for certified UST consultants. Section 19-1-301 of the Environmental Quality Code requires that the Department of Environmental Quality and its boards comply with procedures and requirements of Title 63G, Chapter 4, Administrative Procedures Act (APA), and specifies that procedures for an adjudicative proceeding conducted by an administrative law judge are governed by the Administrative Procedures Act and rules adopted by a board as allowed by Subsection 63G-4-102(6). Section 63G-4-102 of the Administrative Procedures Act states that the APA governs actions by state agencies that determine or limit legal rights and privileges of persons, and governs judicial review of those actions. It allows agencies to enact and follow rules affecting or governing adjudicative proceedings if the rules are enacted according to procedures outlined in Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and if the rules conform to the requirements of the APA. Sections 63G-4-201 through 63G-4-205 of the Administrative Procedures Act allow agencies to enact rules governing certain aspects of adjudicative proceedings, such as: commencement of proceedings, designation of categories of proceedings as formal or informal, and procedures for conducting informal and formal proceedings. Section 63G-4-503 of the Administrative Procedures Act requires an agency to issue rules regarding declaratory orders.

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 on this rule were received during informal and formal public comment periods for a proposed new section (Section R311-201-12) that would require UST operators to be trained and registered. The section was proposed to implement the operator training requirement of the 2005 federal Energy Policy Act. Approximately 25 comments were received. Some commenters were opposed to the proposed section, believing that it would place too great a burden on UST operators, would result in increased costs and too much government regulation, or was unnecessary, since UST operators already monitor their systems. Some commenters requested that an online training option be provided, and others proposed changes to allow persons other than the designated Class B operator to perform the monthly facility inspections. Other commenters requested specifics on persons who would be allowed to provide training, and proposed limits on the length of training classes and the subjects that would be presented in the classes. Section R311-201-11 (Work Performed by Licensed Engineers or Geologists) was the subject of a legislative nonreauthorization during the 2011 General Legislative Session. It was removed from the UST rules as of 05/01/2011. Comments were received during an informal public comment period for proposed section (Section R311-201-12) to modify the requirements for individuals who contract with UST owner/operators to act as third-party Class B operators. The comments were in favor of the proposed rule, or requested more information on the change. No comments were received on this proposed rule during the formal public comment period.

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. As directed by Subsection 19-6-403(1)(a) of the Utah UST Act, it provides certification requirements for UST installers, removers, testers, inspectors, and consultants. It also provides for training and registration of UST operators, as required by the Energy Policy Act and Subsection 19-6-403(1)(b) of the UST Act. Therefore, this rule should be continued. The proposed rule change regarding training and registration requirements for UST operators (Section R311-201-12) was made effective in 2009. While recognizing that the rule could potentially place an increased burden on UST owner/operators, the rule was necessary to implement a required part of the 2005 federal Energy Policy Act. Where possible, the Division of Environmental Response and Remediation (DERR) attempted to minimize the negative impact and made changes to allow for persons other than the Class B operator to perform the monthly inspections, and has worked with third-party training vendors to ensure that online training options have been made available. It was felt that it was not necessary to include language specifying that online training would be allowed, putting restrictions on length and subject matter of classes, or limiting the fees that trainers could charge for their classes. Such language would restrict the natural market forces that would help keep the training at the lowest cost possible and keep class length within a reasonable time limit. All training classes are reviewed and approved by DERR before classes are given, to ensure that the proper subjects are covered. The section that was not reauthorized by the legislature has not been re-enacted. Requirements for work done by professional engineers and geologists are adequately specified in laws and rules of the Department of Commerce for professional licensing. Division staff responded to questions regarding the third-party Class B operator changes and were able to explain the proposal to the satisfaction of the questioners.

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

Environmental Quality
Environmental Response and RemediationRoom First Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

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 [e-mail]

Authorized by:

Brent Everett, Director

Effective:

04/10/2012

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