No. 27195 (Amendment): R311-201. Underground Storage Tanks: Certification Programs

DAR File No.: 27195
Filed: 05/29/2004, 08:54
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes in Subsections R311-201-2(c) and (e) are proposed to ensure that cathodic protection (CP) and Line Leak Detector (LLD) testing are done correctly and that LLD testing is done in some cases where the requirement is vague in the federal regulations. The industry requested that individuals who perform cathodic protection installations, interior lining of USTs, and repair and maintenance of UST systems should be certified without having to meet all the requirements for a full certification. In Subsection R311-201-3(c), when the inspector certification was first put into rule, the certification period was set to one year to ensure that the inspectors would stay current on training, the regulations, etc. Now all inspectors attend periodic training conducted by the UST section, and the DERR scientist overseeing each area trains each of the inspectors on a one-on-one basis during facility UST inspections. Since there is ample oversight and to cut down on paperwork, a two-year certification period is sufficient. In Subsection R311-201-4(a)(4), since DERR administers and grades the exam and processes the application, the need to provide documentation to individuals who pass the exam is unnecessary. In Subsection R311-201-4(a)(3)(C), the UST ACT references the Utah Professional Engineers (PE) certificate as meeting the education requirement for certification as a Utah Certified UST Consultant. Utah Professional Geologists (PG) requested the PG license should meet the education requirement as well. The change in Subsection R311-201-4(b)(2) allows a certified individual to take advantage of alternative continuing education courses and exams to satisfy the requirements for certification. In Subsection R311-201-4(c)(2), this rule change was made to ensure that that cathodic protection (CP) testers are trained properly and that tests are done correctly. In Subsection R311-201-5(a)(3), this clarifies the implied requirement in Section R311-201-4 for a recertification exam. In Subsection R311-201-5(d), individuals whose certifications have been expired for a long period should be required to take a course to educate them to the changes in UST rules and technology related to the petroleum industry. Section R311-201-11 is added to specify that work performed under the statutory definitions of Professional Engineering (Section 58-22-102) and the Practice of Geology Before the Public (Section 58-76-102) must be performed by licensed professional engineers and geologists, and must be properly stamped and signed by the licensed individual.

 

Summary of the rule or change:

The change in Subsections R311-201-2(c) and (e) allows for issuing limited certifications for UST testers and installers, so individuals who perform certain types of testing or partial installations can be certified without having to meet all the requirements for a full certification. In Subsection R311-201-3(c), changes the inspector certification period from one year to two years. In Subsection R311-201-4(a)(4), removes the requirement that a person who passes a certification examination must provide documentation to submit with the application. In Subsection R311-201-4(a)(3)(C), wording is added to specify that an individual who holds a Utah PG certificate will meet the Education requirement for certification as a Utah Certified UST Consultant. In Subsection R311-201-4(b)(2), this change allows certified individuals to take an exam that is applicable to the certification, but not necessarily as comprehensive as the initial certification exam. In Subsection R311-201-4(c)(2), defines training requirements for cathodic protection testers. In Subsection R311-201-5(a)(3), requires that certified individuals pass an examination to re-certify. In Subsection R311-201-5(d), this change requires that people whose certification has been expired for more than two years must satisfy the training and examination requirements for initial certification before they can be certified again. The change in Section R311-201-11 specifies that work performed under the statutory definitions of Professional Engineering (Section 58-22-102) and the Practice of Geology Before the Public (Section 58-76-102) must be performed by licensed PEs and PGs, and the documents submitted must be properly stamped and signed by the licensed individual.

 

State statutory or constitutional authorization for this rule:

Sections 19-6-105, 19-6-402, and 19-6-403

 

Anticipated cost or savings to:

the state budget:

For Subsection R311-201-2(c) and (e), none; the state does not employ Certified UST Testers or UST installers, so the costs to become certified would not apply. For Subsection R311-201-3(c), there could be minor savings in administrative costs in processing certified inspector applications.

 

local governments:

For Subsection R311-201-2(c) and (e), none, unless a local government agency chooses to employ a Certified UST Tester or UST installer. For Subsection R311-201-3(c), there could be minor savings in administrative costs in submitting certified inspector applications.

 

other persons:

For Subsection R311-201-2(c) and (e), costs to persons for training to meet the eligibility requirements for CP testing would be approximately $250 to $1,250 per person. Costs to persons to meet the training requirements for Automatic LLD testing would be approximately $1,000 per person. Costs to persons to meet the training requirements for a limited installer certification would be approximately $250 to $1,000 per person. The aggregate cost would depend on the number of individuals who become certified. The majority of certified UST testers already test LLDs and meet the training requirements to test them so actual costs should be minimal. About half of the certified UST testers currently test CP systems and likely meet the eligibility requirements, so actual costs should be minimal. There are only a few CP testers who are not Certified UST Testers. It is likely that these individuals have already met the majority of the requirements to become certified, so the costs to certify should be minimal. Only a few individual may have to pay the full cost for meeting the eligibility requirements for training for CP and LLD testing. The majority of individuals who would receive a limited Installer certification already are certified as installers or already meet most of the training requirements, so the actual cost for certification would be minimal.

 

Compliance costs for affected persons:

For Subsection R311-201-2(c) and (e), the cost to an individual who wishes to perform CP Testing or LLD testing, or receive a limited Installer certification varies from approximately $250 to $1,250 for training and $150 for and the State certification fee.

 

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

The proposed changes will result in some individuals becoming certified as UST Installers or Testers, because testing of line leak detectors and cathodic protection systems will be done by certified individuals, and some additional work will fall under the definition of UST Installation. Most of the people who do this work are already certified, or already meet most of the training requirements, so it is not anticipated that the cost of becoming certified would be significant, either for individuals or in the aggregate. Dianne R. Nielson, Ph.D., Executive Director

 

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 Remediation
168 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]

 

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:

07/15/2004

 

Interested persons may attend a public hearing regarding this rule:

7/06/2004 at 1:30 PM, Department of Environmental Quality, 168 N 1950 W, Room 101, Salt Lake City, UT

 

This rule may become effective on:

08/16/2004

 

Authorized by:

Dianne R. Nielson, Executive Director

 

 

RULE TEXT

R311. Environmental Quality, Environmental Response and Remediation.

R311-201. Underground Storage Tanks: Certification Programs.

R311-201-1. Definitions.

Definitions are found in Rule R311-200.

 

R311-201-2. Certification Requirement.

(a) Certified UST Consultant. After December 31, 1995, no person shall provide or contract to provide information, opinions, or advice relating to UST release management, abatement, investigation, corrective action, or evaluation for a fee, or in connection with the services for which a fee is charged, without having certification to conduct these activities, except as outlined in Subsections 19-6-402(6)(b)(i), 19-6-402(6)(b)(ii) and R311-204-5(b). The Certified UST Consultant shall be the person directly overseeing UST release-related work. The Certified UST Consultant shall make pertinent project management decisions and be responsible for ensuring that all aspects of UST-related work are performed in an appropriate manner, and all related documentation for work performed submitted to the Executive Secretary shall contain the Certified UST Consultant's signature. After December 31, 1995, any release abatement, investigation, and corrective action work performed by a person who is not certified or who is not working under the direct supervision of a Certified UST Consultant, and is performed for compliance with Utah underground storage tank release-related rules, except as outlined in Subsections 19-6-402(6)(b)(i), 19-6-402(6)(b)(ii) and R311-204-5(b), may be rejected by the Executive Secretary.

(b) UST Inspector. After December 31, 1989, no person shall conduct underground storage tank inspection for determining compliance with Utah underground storage tank rules without having certification to conduct these activities. After December 31, 1989, no owner or operator shall allow any underground storage tank inspections for determining compliance with Utah underground storage tank rules to be conducted on a tank under their ownership or operation unless the person conducting the tank inspection is certified according to Rule R311-201.

(c) UST tester. After December 31, 1989, no person shall conduct UST testing without having certification to conduct such activities. After December 31, 1989, no owner or operator shall allow UST testing to be conducted on an UST under their ownership or operation unless the person conducting the UST testing is certified according to Rule R311-201. Certification by the Executive Secretary under this Rule for tank, line and leak detector testing shall apply only to the specific UST testing equipment and procedures for which the UST tester has been successfully trained by the manufacturer of the equipment or by training determined by the Executive Secretary to be equivalent to the manufacturer training. The Executive Secretary may issue a limited certification restricting the type of UST testing the applicant can perform.

(d) Groundwater and soil sampler. After December 31, 1989, no person shall conduct groundwater or soil sampling for determining levels of contamination which may have occurred from regulated underground storage tanks without having certification to conduct these activities. After December 31, 1989, no owner or operator shall allow any groundwater or soil sampling for determining levels of contamination which may have occurred from regulated underground storage tanks to be conducted on a tank under their ownership or operation unless the person conducting the groundwater or soil sampling is certified according to Rule R311-201.

(e) UST Installer. After January 1, 1991, no person shall install an underground storage tank without having certification or the on-site supervision of an individual having certification to conduct these activities. After January 1, 1991, no owner or operator shall allow the installation of an underground storage tank to be conducted on a tank under their ownership or operation unless the person installing the tank is certified according to Rule R311-201. The Executive Secretary may issue a limited certification restricting the type of UST installation the applicant can perform.

(f) UST Remover. After January 1, 1991, no person shall remove an underground storage tank without having certification or the on-site supervision of an individual having certification to conduct these activities. After January 1, 1991, no owner or operator shall allow the removal of an underground storage tank to be conducted on a tank under their ownership or operation unless the person conducting the tank removal is certified according to Rule R311-201.

 

R311-201-3. Application for Certification.

(a) Any individual may apply for certification by paying any applicable fees and by submitting an application to the Executive Secretary to demonstrate that the applicant

(1) meets applicable eligibility requirements specified in Subsection R311-201-4 and

(2) will maintain the applicable performance standards specified in Subsection R311-201-6 after receiving a certificate.

(b) Applications submitted under Subsection R311-201-3(a) shall be reviewed by the Executive Secretary for determination of eligibility for certification. If the Executive Secretary determines that the applicant meets the applicable eligibility requirements described in Subsection R311-201-4 and meets the standards described in Subsection R311-201-6, the Executive Secretary shall issue to the applicant a certificate.

(c) Certification for all certificate holders [except UST inspectors ]shall be effective for a period of two years from the date of issuance, unless revoked before the expiration date pursuant to Section R311-201-9 or inactivated pursuant to Section R311-201-8.[ Inspector certificates shall be effective for a period of one year from the date of issuance.] Certificates shall be subject to periodic renewal pursuant to Subsection R311-201-5.

 

R311-201-4. Eligibility for Certification.

(a) Certified UST Consultant.

(1) Training. For initial and renewal certification, an applicant must meet Occupational Safety and Health Agency safety training requirements in accordance with 29 CFR 1910.120 and any other applicable safety training, as required by federal and state law, and within a six-month period prior to application must complete an approved training course or equivalent in a program approved by the Executive Secretary to provide training to include the following areas: state and federal statutes, rules and regulations, groundwater and soil sampling, and other applicable and related Department of Environmental Quality policies.

(2) Experience. Each applicant must provide with the application a signed statement or other evidence demonstrating three years, within the past seven years, of appropriately related experience in underground storage tank release abatement, investigation, [or]and corrective action, or an equivalent combination of appropriate education and experience, as determined by the Executive Secretary.

(3) Education. Each applicant must provide with the application college transcripts or other evidence demonstrating the following:

(A) a bachelor's or advanced degree from an accredited college or university with major study in environmental health, engineering, biological, chemical, environmental, or physical science, or a specialized or related scientific field, or equivalent education/experience as determined by the Executive Secretary;[ or]

(B) a professional engineering certificate licensed under Title 58, Chapter 22, of the Professional Engineers and Land Surveyors Licensing Act or equivalent certification as determined by the Executive Secretary[.]; or

(C) a professional geologist certificate licensed under Title 58, Chapter 76 of the Professional Geologist Licensing Act, or equivalent certification as determined by the Executive Secretary.

(4) Initial Certification Examination. Each applicant who is not certified pursuant to R311-201-3 must successfully pass an initial certification examination or equivalent administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the initial examination based on the training requirements as outlined in Subsection R311-201-4(a)(1).[ An individual who successfully passes the examination will be provided with documentation to complete the application requirements.]

(5) Renewal Certification Examination. Certified UST Consultants seeking to renew their certification pursuant to R311-201-5 must successfully pass a renewal certification examination or equivalent administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the renewal examination based on the training requirements as outlined in Subsection R311-201-4(a)(1). The Executive Secretary may offer a renewal certification examination that is less comprehensive than the initial certification examination.[ An individual who successfully passes the renewal certification examination will be provided with documentation to complete the application requirements.]

(6) Examination for Revoked or Expired Certification. Any applicant who is not a Certified UST Consultant on the date the renewal certification examination is given, because the consultant's prior UST Consultant certification was revoked or expired prior to completing a renewal application, must successfully pass the initial certification examination administered under R311-201-4(a)(4).

(b) UST Inspector.

(1) Training. For initial certification, an applicant must have successfully completed an underground storage tank inspector training course or equivalent within the six month period prior to application. The training course shall be[ in a program] approved by the Executive Secretary[ to provide training ] and shall[to] include instruction in the following areas: corrosion, geology, hydrology, tank handling, tank testing, product piping testing, disposal, safety, sampling methodology, state site inspection protocol, state and federal statutes, rules and regulations. Renewal certification training will be established by the Executive Secretary. The applicant must provide documentation of training with the application.

(2) Certification Examination. An applicant must successfully pass a certification examination administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the initial and [subsequent]renewal examinations, based on the training requirements as outlined in Subsection R311-201-4(b)(1), and the standards and criteria against which the applicant will be evaluated. [An individual who successfully passes an examination will be provided with documentation to include with the application]The Executive Secretary may offer a renewal certification examination that is less comprehensive than the initial certification examination.

(c) UST Tester.

(1) Financial Assurance. An applicant or applicant's employer shall have insurance, surety bonds, liquid company assets or other appropriate kinds of financial assurance which covers UST testing and which, in combination, represent an unencumbered value of the largest UST testing contract performed by the applicant or the applicant's employer, as appropriate, during the previous two years, or $50,000, whichever is greater. An applicant who uses his employer's financial assurance must also provide evidence of his employer's approval of the certification application.

(2) Training.

(A) Tank and product piping tightness testing, and automatic line leak detector testing. For initial certification, an applicant must have successfully passed a training course conducted by the manufacturer of the UST testing equipment that he will be using, or a training course determined by the Executive Secretary to be equivalent to the manufacturer training, in the correct use of the necessary equipment, and testing procedures required to operate the UST test system. An applicant for renewal of certification must have successfully passed an appropriate refresher training course conducted by the manufacturer of the UST testing equipment that he will be using, or training as determined by the Executive Secretary to be equivalent to the manufacturer training, in the correct use of the necessary equipment, and testing procedures required to operate the UST test system. For renewal certification, refresher training or equivalent must be completed within one year prior to the expiration date of the certificate. In addition, an applicant must complete underground storage tank testers training within the six month period prior to application in a program approved by the Executive Secretary to provide training to include applicable and related areas of state and federal statutes, rules and regulations. Renewal certification training will be established by the Executive Secretary. The applicant must provide documentation of training with the application.

(B) Cathodic protection testing. For initial and renewal of certification, the applicant shall provide documentation of training as a "Cathodic protection tester" as defined in 40 CFR 280.12. The applicant shall provide documentation of training with the application.

(3) Performance Standards of Equipment. An applicant shall submit documentation [which]that demonstrates the UST testing equipment used by the applicant meets performance standards of 40 CFR Part 280.40(a)(3), 280.43(c), and 280.44(b) for tank and product piping tightness testing. This documentation shall be obtained through an independent lab, professional engineering firm, or [some ]other independent organization or individual approved by the Executive Secretary. The documentation shall be submitted at the time of application for certification.

(4) Certification Examination. An applicant must successfully pass a certification examination administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the initial and [subsequent]renewal examinations, based on the training requirements as outlined in Subsection R311-201-4(c)(2), and the standards and criteria against which the applicant will be evaluated. [An individual who successfully passes an examination will be provided with documentation to include with the application]The Executive Secretary may offer a renewal certification examination that is less comprehensive than the initial certification examination.

(d) Groundwater and soil sampler.

(1) Training. For initial[ and renewal] certification an applicant shall successfully complete an underground storage tank groundwater and soil sampler training course or equivalent within the six month period prior to application. The training course shall be[ in a program] approved by the Executive Secretary and shall[to provide training to] include instruction in the following areas: chain of custody, decontamination, EPA testing methods, groundwater and soil sampling protocol, preservation of samples during transportation, coordination with Utah certified labs, state and federal statutes, rules and regulations. Renewal certification training will be determined by the Executive Secretary. The applicant shall provide documentation of training with the application.

(2) Certification Examination. An applicant must successfully pass a certification examination administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the initial and subsequent examinations, based on the training requirements as outlined in Subsection R311-201-4(d)(1), and the standards and criteria against which the applicant will be evaluated. [An individual who successfully passes an examination will be provided with documentation to include with the application]The Executive Secretary may offer a renewal certification examination that is less comprehensive than the initial certification examination.

(e) UST Installer.

(1) Financial assurance. An applicant or the applicant's employer shall have insurance, surety bonds, liquid company assets or other appropriate kinds of financial assurance which covers underground storage tank installation and which, in combination, represents an unencumbered value of not less than the largest underground storage tank installation contract performed by the applicant or the applicant's employer, as appropriate, during the previous two years, or $250,000, whichever is greater. Evidence of financial assurance shall be provided with the application. An applicant who uses his employer's financial assurance must also provide evidence of his employer's approval of the application.

(2) Training. For initial[ and renewal] certification, an applicant must have successfully completed an underground storage tank installer[ approved] training course or equivalent within the six-month period prior to the application. The training course shall be[in a program ]approved by the Executive Secretary, [to provide training to]and shall include instruction in the following areas: tank installation, preinstallation tank testing, product piping testing, excavation, anchoring, backfilling, secondary containment, leak detection methods, piping, electrical, state and federal statutes, rules and regulations. The applicant must provide documentation of training with the application.

(3) Experience. Each applicant must provide with his application a sworn statement or other evidence that he has actively participated in a minimum of three underground storage tank installations.

(4) Certification Examination. An applicant must successfully pass a certification examination administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the initial and [subsequent]renewal examinations, based on the training requirements as outlined in Subsection R311-201-4(e)(2), and the standards and criteria against which the applicant will be evaluated. [An individual who successfully passes an examination will be provided with documentation to include with the application]The Executive Secretary may offer a renewal certification examination that is less comprehensive than the initial certification examination.

(f) UST Remover.

(1) Financial assurance. An applicant or the applicant's employer shall have insurance, surety bonds, liquid company assets or other appropriate kinds of financial assurance which covers underground storage tank removal and which, in combination, represents an unencumbered value of not less than the largest underground storage tank removal contract performed by the applicant or the applicant's employer, as appropriate, during the previous two years, or $250,000, whichever is greater. Evidence of financial assurance shall be provided with the application. An applicant who uses his employer's financial assurance must also provide evidence of his employer's approval of the application.

(2) Training. For initial[ and renewal] certification, an applicant must have successfully completed an underground storage tank remover approved training course or equivalent within the six-month period prior to the application. The training course shall be[ in a program] approved by the Executive Secretary and shall[to provide training to] include instruction in the following areas: tank removal, tank removal safety practices, state and federal statutes, rules and regulations. The applicant must provide documentation of training with the application.

(3) Experience. Each applicant must provide with his application a sworn statement or other evidence that he has actively participated in a minimum of three underground storage tank removals.

(4) Certification Examination. An applicant must successfully pass a certification examination administered under the direction of the Executive Secretary. The Executive Secretary shall determine the content of the initial and [subsequent]renewal examinations, based on the training requirements as outlined in Subsection R311-201-4(f)(2), and the standards and criteria against which the applicant will be evaluated. [An individual who successfully passes an examination will be provided with documentation to include with the application]The Executive Secretary may offer a renewal certification examination that is less comprehensive than the initial certification examination.

 

R311-201-5. Renewal.

(a) A certificate holder may apply for certificate renewal not more than six months prior to the expiration date of the certificate by[ submitting]:

(1) submitting a completed application form to demonstrate that the applicant meets the applicable eligibility requirements described in R311-201-4 and meets the applicable performance standards specified in R311-201-6[, and];

(2) paying any applicable fees[.], and

(3) passing a certification renewal examination.

(b) If the Executive Secretary determines that the applicant meets the applicable eligibility requirements of R311-201-4 and the applicable performance standards of R311-201-6, the Executive Secretary shall reissue the certificate to the applicant.

(c) Renewal certificates shall be issued for a period equal to the initial certification period, and shall be subject to inactivation under R311-201-8 and revocation under R311-201-9.

(d) Any applicant who has a certification which has been revoked or expired for more than two years prior to submitting a renewal application shall successfully satisfy the training and certification examination requirements for initial certification under R311-201-4 for the applicable certificate before receiving the renewal certification, except as provided in R311-201-4(a)(6) for certified UST consultants.

 

R311-201-11. Work Performed by Licensed Engineers or Geologists.

(a) All work that qualifies as Professional Engineering or the Practice of Engineering, as defined in Section 58-22-102, shall be performed by or under the personal direction of a licensed Professional Engineer, or as qualifying under exemptions stated in Section 58-22-305. All documents and other work products submitted to the division for work that is performed under Section 58-22-102, shall be stamped and signed by an individual licensed under Section 58-22-301.

(b) All work that qualifies as the Practice of Geology Before the Public, as defined in Section 58-76-102, shall be performed by or under the personal direction of a licensed Professional Geologist, or as qualifying under exemptions stated in Section 58-76-304. All documents and other work products submitted to the division, for work that is performed under Section 58-76-102, shall be stamped and signed by an individual licensed under Section 58-76-301.

 

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

[July 17, 2000]2004

Notice of Continuation March 6, 2002

19-6-105

19-6-402

19-6-403