No. 36497 (Amendment): Rule R311-206. Underground Storage Tanks: Financial Assurance Mechanisms

(Amendment)

DAR File No.: 36497
Filed: 07/16/2012 02:11:32 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In Section R311-206-4, wording is removed because the 2012 Utah legislature removed the subsection in the Utah Underground Storage Tank (UST) Act to which it refers. Documentation of non-marketer status for state fiscal years 1991 through 1994 is no longer required due to the statutory change. Other references to the statute are changed because the legislative change altered the numbering of the subsections to which the rule refers. In Section R311-206-5, reference to submittal of financial assurance documents for fiscal year 1998 is removed because 1998 has passed and it is more appropriate to refer generally to the requirements that have been in place since the end of fiscal year 1998. In Section R311-206-8, this section is revised to implement a change to the Utah UST Act made by the 2012 Utah legislature. The statutory change removed the requirement that underground petroleum tanks have a tag or other means of identification to show which tanks are eligible to receive deliveries of regulated substances, and provides for tagging only of tanks that are not eligible to receive deliveries. In Section R311-206-9, the current rule provides that an UST owner must give 60 days advance notice when the owner decides to remove a tank from coverage under the Petroleum Storage Tank (PST) Fund, and use an alternate financial assurance mechanism for the tank. The proposed change reduces this time period to 30 days, because the review of the new financial assurance mechanism generally can be done in less than 60 days. Other changes are proposed to simplify the process and allow for situations in which the owner/operator already has an alternate mechanism in place, or when the alternate mechanism review cannot be completed in 30 days. In Section R311-206-10, the current rule provides separate requirements for tanks that return to PST Fund participation without a site assessment during calendar year 2007, and those that return to fund participation after 2007. The reference to 2007 is removed because that year has passed, and those requirements no longer apply.

Summary of the rule or change:

In Section R311-206-4, this amendment removes wording that refers to the documentation of non-marketer status for assessment of PST Fund fees for state fiscal years 1991 through 1994. Changes one citation because the subsection to which it refers will be re-numbered. In Section R311-206-5, removes a reference to submittal of financial assurance documents for fiscal year 1998 and replaces it with general wording for subsequent years. In Section R311-206-8, section is re-named. Removes wording applying to tags placed on petroleum USTs to show that they are eligible to receive deliveries of regulated substances, and adds wording to implement changes made to the Utah UST Act by the 2012 Utah legislature. The legislative change provides for placement of tags on tanks that are not eligible to receive fuel, rather than on those that are eligible to receive fuel. Provides for a "delivery prohibition" tag to be placed on an UST whose certificate of compliance has been revoked for non-compliance or has lapsed for non-payment of fees, and on an UST that has never qualified for a certificate of compliance. The tag will also be placed on an UST that does not have required equipment in place for spill prevention, overfill prevention, leak detection, or corrosion protection. Provides for a tag to be placed on a new UST when it is installed, to ensure that no deliveries are made to the UST, unless authorized by the Division Director, until the initial certificate of compliance is issued. Provides for authorization for deliveries of fuel for tank ballasting and/or testing before the certificate of compliance is issued. Provides for penalties for deliveries of fuel to a tank that is tagged, and fees for the unauthorized removal of the delivery prohibition tag. In Section R311-206-9, allows a tank to cease participation in the PST Fund in 30 days, rather than the current 60 days, after the owner/operator notifies the Division Director of the intent to leave the fund. Provides for notification in writing from the UST owner or operator of the intent to leave the fund. Allows the Division Director to approve tanks to leave the fund in less than 30 days if the UST owner already has a current alternate financial responsibility method in place, and allows for tanks to leave the fund after the designated 30-day period if the UST owner/operator does not properly document alternate financial responsibility within the 30-day period. In Section R311-206-10, removes reference to a one-year time period (calendar year 2007) in which UST owner/operators could return to the PST Fund without doing a site assessment, and refers only to the current requirements for returning to the fund, that have been in place since 01/01/2008.

State statutory or constitutional authorization for this rule:

• Section 19-6-428
• Section 19-6-105
• Section 19-6-403

Anticipated cost or savings to:

the state budget:

The proposed change will save the state budget the yearly cost of producing tags for all tanks, approximately $2,000 per year. The cost of the delivery prohibition tags will be much lower each year, because fewer tags will be needed, but there may be the increased cost of using state employees to place the tags on non-compliant tanks. Approximate cost of the delivery prohibition tags is $300 per year.

local governments:

The changes regarding USTs that leave the PST Fund (Section R311-206-9) will allow a local government that is an UST owner/operator to begin receiving refunds of the 1/2 cent per gallon environmental surcharge sooner because the tank can potentially leave the fund in 30 days rather than 60, or less than 30 days if the UST owner/operator already has an alternate financial assurance mechanism in place for other tanks. The amount saved will depend on the number of tanks that leave the fund and the throughput of those tanks. The other changes (Sections R311-206-4, R311-206-5, and R311-206-10) have no costs or savings because they only modify rule wording that no longer applies due to statutory changes or the passing of a specific time period.

small businesses:

The changes regarding USTs that leave the PST Fund (Section R311-206-9) will allow a small business that is an UST owner/operator to begin receiving refunds of the 1/2 cent per gallon environmental surcharge sooner because the tank can potentially leave the fund in 30 days rather than 60, or less than 30 days if the UST owner/operator already has an alternate financial assurance mechanism in place for other tanks. The amount saved will depend on the number of tanks that leave the fund and the throughput of those tanks. The other changes (Sections R311-206-4, R311-206-5, and R311-206-10) have no costs or savings because they only modify rule wording that no longer applies due to statutory changes or the passing of a specific time period.

persons other than small businesses, businesses, or local governmental entities:

The changes regarding USTs that leave the PST Fund (Section 9) will allow the UST owner/operator to begin receiving refunds of the 1/2 cent per gallon environmental surcharge sooner because the tank can potentially leave the fund in 30 days rather than 60, or less than 30 days if the UST owner/operator already has an alternate financial assurance mechanism in place for other tanks. The amount saved will depend on the number of tanks that leave the fund and the throughput of those tanks. The other changes (Sections R311-206-4, R311-206-5, and R311-206-10) have no costs or savings because they only modify rule wording that no longer applies due to statutory changes or the passing of a specific time period. Non-fiscal impacts: The change that no longer requires each tank to have a compliance tag will save UST owner/operators the time and effort to place tags on their tanks each year and ensure that they remain in place. The other changes will have no material impact because they only remove wording that no longer applies, and provide for no new requirements.

Compliance costs for affected persons:

There are no anticipated compliance costs. The changes implement a statutory change that will remove the requirement that each UST have a compliance tag, provide for an expedited process for tanks to cease participating in the PST Fund, and remove rule wording that no longer applies.

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

The reduction of the time period for review of alternate financial responsibility mechanisms will allow UST owners and operators to remove themselves from PST Fund coverage sooner after they notify the Division and permit them to receive refunds of their environmental surcharge. The other changes should not have any material fiscal impact on businesses.

Amanda Smith, 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 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]

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:

08/31/2012

Interested persons may attend a public hearing regarding this rule:

• 08/15/2012 01:30 PM, Department of Environmental Quality, 195 N 1950 W, Room 1015, Salt Lake City, UT

This rule may become effective on:

09/14/2012

Authorized by:

Brent Everett, Director

RULE TEXT

R311. Environmental Quality, Environmental Response and Remediation.

R311-206. Underground Storage Tanks: Certificate of Compliance and Financial Assurance Mechanisms.

R311-206-1. Definitions.

Definitions are found in Rule R311-200.

 

R311-206-2. Declaration of Financial Assurance Mechanism.

(a) To demonstrate financial assurance, as required by 40 CFR 280, subpart H, owners or operators of petroleum storage tanks shall:

(1) meet all requirements for participation in the Environmental Assurance Program, or

(2) demonstrate financial assurance by an allowable method specified in 40 CFR 280, subpart H.

(b) Owners or operators shall declare whether they will participate in the Environmental Assurance Program under Section 19-6-410.5, or show financial assurance by another method.

(c) For the purposes of Subsection 19-6-412(6), all tanks at a facility shall be covered by the same financial assurance mechanism, and shall be considered to be in one area, unless the Executive Secretary determines there is sufficient information so that releases from different tanks at the facility could be accurately differentiated.

 

R311-206-3. Requirements for Issuance of Certificates of Compliance.

(a) The Executive Secretary shall issue a certificate of compliance to an owner or operator for individual petroleum storage tanks at a facility if:

(1) the owner or operator has a certificate of registration;

(2) the tank is substantially in compliance with all state and federal statutes, rules and regulations;

(3) the UST test, conducted within 6 months before the tank was registered or within 60 days after the date the tank was registered, indicates that each individual UST is not leaking;

(4) the owner or operator has submitted a letter to the Executive Secretary stating that based on customary business inventory practices standards there has been no release from the tank;

(5) the owner or operator has submitted a completed application according to a form provided and approved by the Executive Secretary, and has declared the financial assurance mechanism that will be used;

(6) the owner or operator has met all requirements for the financial assurance mechanism chosen, including payment of all applicable fees; and

(7) the owner or operator has submitted an as-built drawing that meets the requirements of R311-200-1(b)(3).

 

R311-206-4. Requirements for Environmental Assurance Program [p]Participants.

(a) [To meet the requirements of Subsections 19-6-411(1)(a)(ii) and 19-6-411(1)(b)(ii) the owner or operator shall submit:

(1) A letter to the Executive Secretary stating that the facility is not engaged in petroleum production, refining, or marketing, and

(2) Evidence, each fiscal year, of average annual throughput less than 10,000 gallons per month based on current inventory records.

(b)] In accordance with Subsection 19-6-411(1)([c]a), the annual facility throughput rate, if reported, shall be reported to the Executive Secretary as a specific number of gallons, based on the throughput for the previous calendar year.

([c]b) In accordance with Subsection 19-6-411(1)([d]b), when a petroleum storage tank is initially registered with the Executive Secretary, any Petroleum Storage Tank fee for that tank for the current fiscal year shall be due when the tank is brought into use, as a requirement for receiving a Certificate of Compliance.

([d]c) In accordance with Subsection 19-6-411(6), the Executive Secretary may waive all or part of the fees required to be paid on or before May 5, 1997 under Section 19-6-411 if no fuel has been dispensed from the tank on or after July 1, 1991, and if the tank has been properly closed according to Rules R311-204 and R311-205, or in other circumstances as approved by the Executive Secretary.

([e]d) In accordance with Subsection 19-6-411(2)(a)(i), if an installation company receives its annual permit after the beginning of the fiscal year, the annual fee must be paid for the entire year.

([f]e) Auditing of UST facility throughput records for fiscal year 1998.

(1) Owners and operators shall retain for seven years the monthly tank throughput records of the facility for the months of July 1997 through June 1998. Tank throughput records shall include all financial and product documentation for receipts, dispositions and inventories.

(2) The executive secretary may audit or order an audit, by an independent auditor, of records which support the amount of throughput, for each tank at a participant's facility.

(A) Records shall be made available at the Department for inspection within 30 calendar days after receiving notice from the Executive Secretary.

(B) Audits may be determined by random selection or for particular reasons, including suspicion or discovery of inaccuracies in throughput reports, aggregating throughput reports, having a release, or filing a claim.

(C) Auditing tank throughput may be accomplished by any method approved by the Executive Secretary.

(D) All costs of an independent audit shall be paid by the owner or operator.

([g]f) Owners or operators eligible for coverage by the Fund shall demonstrate financial assurance for the difference between coverage provided by the Fund and coverage amounts required by 40 CFR 280 Subpart H. If the owner or operator chooses self insurance as the mechanism for demonstrating financial assurance for the difference, the owner or operator must document a tangible net worth of $10,000 upon request and to the satisfaction of the Executive Secretary. An owner or operator may also select and document another mechanism specified in 40 CFR 280.94 to demonstrate financial assurance for the difference. The processing fee requirement referenced in Subsection R311-206-5(b) is not applicable because the administrative cost is covered by the PST fund fee. However, the Executive Secretary may require the owner or operator to submit an independent audit to demonstrate net worth for self insurance. The owner or operator shall bear the expense for the audit. The criteria for an audit are the same as set forth in Subsection R311-206-4([f]e)(2).

 

R311-206-5. Requirements for Owners and Operators Demonstrating Financial Assurance by Other Methods.

(a) Owners and operators who elect to utilize an alternate form of financial assurance shall use one or a combination of mechanisms specified in 40 CFR 280.94. Owners and operators shall submit to the Executive Secretary the documents required by 40 CFR 280.111 to be kept and maintained for the mechanism used.

(1) Formats, calculations, letters, reporting, and record keeping shall be done in accordance with each applicable financial assurance mechanism specified in 40 CFR 280 subpart H.

(2) If the financial assurance documentation submitted to the Executive Secretary is not in accordance with 40 CFR 280 subpart H, it shall be rejected and shall be invalid.

(b) The processing fee established in Subsection 19-6-408(2)(a) for each new or changed financial assurance document submitted for approval shall be included with the financial assurance document and shall be payable to the Department. Processing fees for subsequent yearly review of a financial assurance document shall be due on July 1 annually.

(1) Pursuant to 40 CFR 280.97, if the financial assurance mechanism is an insurance policy, the insurer is liable for payment of amounts within any deductible applicable to the policy to the provider of corrective action or a damaged third party, with right of reimbursement by the insured for such payment made by the insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in 40 CFR 280.95-280.107. A showing of financial assurance for the deductible, if such a showing is made, shall be treated as a separate financial assurance mechanism subject to the processing fee requirement referenced in Subsection R311-206-5(b) above.

(2) If an owner or operator desires to make any material change to the financial assurance document, the change shall be approved by the Executive Secretary, and an additional processing fee shall be paid in circumstances as determined by the Executive Secretary.

(c) Evidence of a current and approved financial assurance mechanism shall be reported to the Executive Secretary each year as follows:

(1) [For State fiscal year 1998 evidence of financial assurance for all mechanisms shall be due to the Executive Secretary by June 15, 1997.

(2) Thereafter, proof of financial assurance shall be reported to the Executive Secretary and shall include:

(A)] Owners and operators using the financial test of self insurance shall submit the "Letter from Chief Financial Officer" to the Executive Secretary within the maximum 120 day period specified in 40 CFR 280.95.

([B]2) Owners and Operators using insurance and risk retention group coverage for financial assurance shall submit the coverage policy in its entirety, with the current Certificate of Insurance or Endorsement specified in 40 CFR 280.97(b), to the Executive Secretary within 30 days of acceptance of such policy by the insurer or risk retention group.

([i]A) If the insurance policy or risk retention group coverage is cancelled, the insurer or risk retention group shall provide written notice of cancellation or other termination of coverage required by 40 CFR 280.97(b)(1)2.d. and 40 CFR 280.97(b)(2)2.d. to the Executive Secretary as well as the insured.

([ii]B) The insurer shall have a rating of A- or greater by A.M.Best Co.

([C]3) Owners and operators using an irrevocable letter of credit shall submit proof of the letter of credit, standby trust fund, and formal certification of acknowledgement to the Executive Secretary within 30 days of issuance from the issuing institution.

([D]4) Owners and operators using a fully funded trust fund for financial assurance shall submit proof of the trust fund and formal certification of acknowledgement to the Executive Secretary within 30 days after implementation of the trust fund.

([E]5) Owners and operators using a guarantee for financial assurance shall submit the Guarantee document, standby trust fund, and certification of acknowledgement to the Executive Secretary within 30 days of issuance. The owner or operator shall also submit the guarantor's letter from chief financial officer within the 120-day period specified in 40 CFR 280.95.

([F]6) Owners and operators using a surety bond for financial assurance shall submit the surety bond document, standby trust fund, and certification of acknowledgement to the Executive Secretary within 30 days of issuance.

([G]7) Guarantees and surety bonds may be used as financial assurance mechanisms in Utah only if the requirement of 40 CFR Part 280.94(b) is met.

([H]8) Owners and operators using one of the local government methods specified in 40 CFR 280.104 through 107 shall submit the letter from chief financial officer and associated documents to the Executive Secretary within 120 days of the end of the owner/operator's or guarantor's fiscal year.

(d) The Executive Secretary may require reports of financial condition or any other information relative to justification of the financial assurance mechanism from the owner or operator at any time. Information requested shall be reported to the Executive Secretary within 30 calendar days after receiving the request.

(1) Owners and operators shall maintain evidence of all financial assurance mechanisms as specified in 40 CFR 280.111.

(2) Owners and operators shall keep records of all financial assurance mechanisms for a period of three years.

(3) The Executive Secretary may audit or order an audit of records supporting the financial assurance mechanism at any time.

(A) Audits may be determined by random selection or for specific reasons, including the occurrence of a release or suspected release, deficiencies in complying with regulations or orders, or the suspicion or discovery of inaccuracies.

(B) Auditing of financial assurance methods may be accomplished by any method approved by the Executive Secretary.

(e) Any and all costs of securing a selected financial assurance mechanism and generating and providing the necessary reporting evidence of an assurance mechanism to the Executive Secretary shall be the sole responsibility of the owner or operator.

(f) Processing of the alternate financial assurance mechanism documents may be accomplished utilizing any method approved by the Executive Secretary.

 

R311-206-6. Voluntary Admission of Eligible Exempt Underground Storage Tanks and above-ground storage tanks to the Environmental Assurance Program.

(a) Owners or operators of eligible exempt underground storage tanks specified in Subsection 19-6-415(1)(a) may voluntarily participate in the Environmental Assurance Program by:

(1) meeting the requirements of Subsection 19-6-415(1) and Subsection R311-206-3(a);

(2) properly performing release detection according to the requirements of 40 CFR Part 280 Subpart D; and

(3) meeting the upgrade requirements in 40 CFR 280.21 or the new tank requirements in 40 CFR 280.20, as applicable.

(b) Owners or operators of above-ground storage tanks may voluntarily participate in the Environmental Assurance Program by:

(1) meeting the requirements of Subsection 19-6-415(2) and Subsection R311-206-3(a);

(2) meeting applicable requirements of the Utah State Fire Code adopted pursuant to Section 53-7-106;

(3) performing an annual line tightness test of all underground product piping, or documenting monthly monitoring of sensor-equipped double-walled underground product piping; and

(4) performing a tightness test of all above-ground tanks every five years, using a tightness test method capable of properly testing the tank.

 

R311-206-7. Revocation and Lapsing of Certificates.

(a) The Executive Secretary shall revoke a certificate of compliance or registration if he determines that the owner or operator has willfully submitted a fraudulent application or is not in compliance with any requirement pertaining to the certificate.

(b) A petroleum storage tank owner or operator who has had a certificate of compliance revoked under Section 19-6-414 or Subsection R311-206-7(a) may have the certificate reissued by the Executive Secretary after the owner or operator demonstrates compliance with Subsection 19-6-412(2), Subsection 19-6-428(3), and Section R311-206-3.

(c) A petroleum storage tank owner or operator who has had a certificate of compliance lapse under Subsection 19-6-408(5)(c) may have the certificate reissued by the Executive Secretary after the owner or operator demonstrates compliance with Subsection 19-6-412(2) and Section R311-206-3.

(d) A petroleum storage tank owner or operator who has had eligibility to receive payments for claims against the fund lapse under Section 19-6-411(3)(c)(ii) shall meet the requirements of Subsection 19-6-428(3) and pay all fees, interest, and penalties due to reinstate eligibility.

(e) Upon permanent closure of a tank which is covered by the Fund, the eligibility to make a claim against the Fund shall terminate as specified in Section R311-207-2. Permanently closed tanks are not eligible to be reissued a certificate of compliance.

(f) In accordance with Section 19-6-414, the Executive Secretary may revoke a certificate of compliance for the owner's or operator's failure to comply with 40 CFR 280, which requires release reporting, abatement, investigation, corrective action, or other measures to bring the release site under control.

 

R311-206-8. [Proof of Certification]Delivery Prohibition.

(a) [In accordance with Subsection 19-6-411(7), a tag or other means of identification shall be issued to each petroleum storage tank or underground storage tank which has demonstrated current compliance with Section 19-6-412 and Section R311-206-3 or Section R311-206-6. The tag or other means of identification shall be displayed for view of the person delivering or placing petroleum product into an underground storage tank for which the tag was issued.

(b) A tank shall not be issued a tag or other means of identification if the owner or operator has not satisfied the requirements of Section 19-6-412. An owner or operator shall not allow a tag to be displayed on a tank for which the Certificate of Compliance has been revoked or has lapsed, or on a tank for which the eligibility to receive payment for claims against the fund has lapsed unless the owner or operator has demonstrated compliance with financial assurance requirements.]In accordance with Subsection 19-6-411(7), the Director shall authorize the placement of a delivery prohibition tag identifying a tank:

(1) for which the certificate of compliance has been revoked in accordance with Section 19-6-414, or

(2) for which the certificate of compliance has lapsed for non-payment of fees in accordance with Subsection 19-6-408(5), or

(3) that has never qualified for a certificate of compliance, and is not a new installation under Subsection R311-206-8(a)(4), or

(4) that is a new installation, and has not been issued a certificate of compliance.

(b) In accordance with Subsection 19-6-403(1)(b)(i), the Director shall authorize the placement of a delivery prohibition tag to be placed on the tank as soon as practicable after the determination is made that a tank:

(1) does not have spill prevention equipment required under 40 CFR 280.20(c) or 40 CFR 280.21(d), or

(2) does not have overfill prevention equipment required under 40 CFR 280.20(c) or 40 CFR 280.21(d), or

(3) does not have equipment required for tank or piping leak detection in accordance with 40 CFR 280 Subpart D, or

(4) does not have equipment required for tank or piping corrosion protection in accordance with 40 CFR 280 Subpart B or C.

(c) The delivery prohibition tag shall be placed on the tank fill or in a visible location near the tank fill.

(d) A person who delivers or accepts delivery of a regulated substance or petroleum into a tank marked with a delivery prohibition tag shall be subject to the penalties outlined in Section 19-6-416, unless authorized under R311-206-8(e).

(e) The Director may issue written approval for a delivery of petroleum to:

(1) provide ballast for a new tank during installation, or

(2) allow for the tank tightness test required under Section 19-6-413.

(f) The delivery prohibition tag shall remain in place until the Director issues:

(1) for tanks that have a tag in place in accordance with Subsection R311-206-8(a):

(A) a new certificate of compliance for the tank, and

(B) written authorization to remove the delivery prohibition tag, or

(2) for tanks that have a tag in place in accordance with Subsection R311-206-8(b):

(A) written authorization to remove the delivery prohibition tag.

(g) If a delivery prohibition tag is removed without the authorization specified in Subsection R311-206-8(f)(1)(B) or Subsection R311-206-8(f)(2)(A), the UST owner or operator shall be subject to:

(1) a re-inspection and any applicable fees, and

(2) placement of a new delivery prohibition tag on the tank.

 

R311-206-9. Removing Participating Tanks from the Environmental Assurance Program.

(a) [At any time after May 1,1997, o]Owners and operators of petroleum storage tanks who have voluntarily elected to participate in the Environmental Assurance Program may cease participation in the program and be exempted from the requirements described in Section R311-206-4 by:

(1) permanently closing tanks as outlined in 40 CFR 280, subpart G, Rule R311-204, and Rule R311-205, or

(2) meeting the following requirements:

([i]A) demonstrating compliance with Section R311-206-5, and

([ii]B) notifying the Executive Secretary in writing at least [6]30 days before the date of cessation of participation in the program, and specifying the date of cessation.

(i) The Director may waive the 30-day requirement if the owner or operator has already documented current financial assurance under R311-206-5 for other USTs owned or operated by the owner or operator.

(ii) The date of cessation of participation in the program may occur after the date designated in Subsection R311-206-9(a)(2)(B) if the owner or operator does not document compliance with R311-206-5 by the date originally designated.

(b) The fund will not give pro-rata refunds.

(c) For tanks being removed voluntarily from the program, the date of cessation of participation in the program shall be the date on which coverage under the program ends. Subsequent claims for payments from the fund must be made in accordance with Section 19-6-424 and Section R311-207-2.

 

R311-206-10. Participation in the Environmental Assurance Program After a Period of Voluntary Non-participation.

(a) Owners and operators who choose not to participate in the Environmental Assurance Program shall, before any subsequent participation in the program, meet the following requirements:

(1) notify the Executive Secretary of the intent to participate in the program;

(2) comply with the requirements of Subsection 19-6-428(3), and

(3) meet the requirements of Subsection R311-206-3(a) to qualify for a new certificate of compliance.

(b) [Effective January 1, 2007, and until December 31, 2007]In accordance with Subsection 19-6-428(3)(b), the Executive Secretary may determine that there is reasonable cause to believe that no petroleum has been released if the owner or operator, for each UST to participate in the program, meets the following requirements at the time the owner or operator applies for participation:

(1) The last two compliance inspections verify significant operational compliance, and verify that no release has occurred. Significant operational compliance status shall be determined using the EPA Release Prevention Compliance Measures Matrix and Release Detection Compliance Measures Matrix, both dated March 3, 2005 and incorporated herein by reference. The matrices contain leak prevention and leak detection criteria to be used by inspectors in determining compliance status of underground storage tanks.

(2) The owner or operator documents compliance with all release prevention and release detection requirements that are required for the time period since the last compliance inspection, and the records submitted do not give reason to suspect a release has occurred. The owner or operator shall submit:

(i) tank and piping leak detection records, or a tank and line tightness test performed within the last six months;

(ii) the most recent simulated leak test for all automatic line leak detectors;

(iii) cathodic protection tests, if applicable, and

(iv) internal lining inspections, if applicable.

[ (c) Effective January 1, 2008, the Executive Secretary may determine that reasonable cause exists if:

(1) the owner or operator meets the requirements of Subsections (b)(1) and (b)(2) above, and

] ([2]3) [t]The period of non-participation in the Program is less than six months, or the UST is less than ten years old.

 

KEY: hazardous substances, petroleum, underground storage tanks

Date of Enactment or Last Substantive Amendment: [February 14, 2011]2012

Notice of Continuation: April 10, 2012

Authorizing, and Implemented or Interpreted Law: 19-6-105; 19-6-403; 19-6-428

 

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