No. 41395 (5-year Review): Rule R311-201. Underground Storage Tanks: Certification Programs and UST Operator Training

DAR File No.: 41395
Filed: 03/27/2017 03:11:48 PM

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 Waste Management and Radiation 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) 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 APA and rules adopted by a board as allowed by Subsection 63G-4-102(6). Section 63G-4-102 of the APA 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 APA 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 APA 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:

The division received comments and questions regarding this rule during formal and informal comment periods related to rulemaking. Comments dealt with proposed changes that would allow some types of UST testing to be performed by certified installers or UST owners, add requirements for monthly operator inspections, and change the operator training rules. During rulemaking in 2016, Utah's UST rules were reviewed by representatives from the US Environmental Protection Agency (EPA) to ensure that the changes Utah proposed to incorporate the 2015 EPA UST regulations would not jeopardize Utah's ability to receive State Program Approval (SPA) from EPA. In reviewing the rules, EPA commented that some parts of Utah's operator training rule may be less stringent than the federal regulations, and made recommendations for changes.

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 UST program. As directed by Subsection 19-6-403(1)(a) of the Utah UST Act, the rule 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 division worked with stakeholders and the UST advisory task force to draft new rules for UST testing that would allow some new required tests to be done by certified UST installers or UST owner/operators. The operator inspection requirement was not changed because it is based on requirements in the federal UST regulations and cannot be more stringent than the federal regulations. The commenter had requested addition of requirements that would be more stringent than the federal regulations. The operator training rules were left intact. Utah is keeping its current operator training program rather than incorporating the new EPA program, and has been assured by EPA that its program will be acceptable for State Program Approval. Questions were answered to the satisfaction of the individuals who posed the questions.

The full text of this rule may be inspected, during regular business hours, at the Office 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]
• David Wilson at the above address, by phone at 801-536-4138, by FAX at , or by Internet E-mail at [e-mail]

Effective:

03/27/2017

Authorized by:

Brent Everett, Director

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