Environmental Quality, Environmental Response and Remediation

Section R311-201-12

UST Operator Training and Registration

Notice of Proposed Rule

(Amendment)

DAR File No.: 36496
Filed: 07/16/2012 02:11:04 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In Subsections R311-201-12(d) and (e), the rule, as currently written, allows an underground storage tank (UST) owner or employee to become a Class A or Class B operator, but does not provide for an UST operator to be a Class A or Class B operator. In some cases, the UST owner is the property owner or someone else who does not operate the USTs. A lessee or other individual is the UST operator and has day-to-day oversight for the USTs. The proposed change allows the operator, the person who in these cases has the actual responsibility for the USTs, to be the Class A or Class B operator. The change to allow an UST owner or operator to designate a third-party Class B operator as a Class A operator is proposed for situations in which a financial institution or other person becomes the UST owner through foreclosure, default of a tenant, etc., and does not operate the USTs. Under this proposed change, the UST owner will not be required to become a Class A and/or Class B operator, but will be able to contract with a qualified individual to be both the Class A and Class B operators, saving the cost and effort to become a registered operator in a situation where the UST owner may not have practical knowledge to oversee the USTs properly. In Subsections R311-201-12(h) and (k), the 2012 Utah legislature amended the Utah UST Act to remove the requirement that USTs display a tag or other means of identification to show that they are eligible to receive deliveries of fuel or other petroleum products, and provide for a "red tag" to be displayed only on USTs that are not eligible to receive deliveries. The proposed rule changes remove references to the compliance tag regarding monthly UST operator inspections and mandatory Class B operator retraining, because of the legislative change that does away with the compliance tag concept.

Summary of the rule or change:

In Subsections R311-201-12(d) and (e), adds wording to allow an UST operator to be registered as a Class A or Class B operator. Adds wording to allow an UST owner/operator to designate a third-party Class B operator as a Class A operator when the UST owner/operator is a financial institution or other person who acquired ownership of the UST facility only to protect a security interest in the property, and when the USTs are properly temporarily closed and emptied. In Subsections R311-201-12(h) and (k), removes wording that requires the Class B operator to verify, as part of the monthly UST operator inspection, that the UST compliance tags are in place on each tank. Removes wording that provides for automatic re-training of the Class B operator if the UST compliance tags are not in place on each tank.

State statutory or constitutional authorization for this rule:

• Section 19-6-105
• Section 19-1-301
• Section 19-6-403
• Section 19-6-402
• Sections 63G-4-201 through 205
• Section 63G-4-102
• Section 63G-4-503

Anticipated cost or savings to:

the state budget:

No anticipated costs or savings. The changes expand the range of individuals who may become Class A or Class B operators to meet requirements already in place, and remove requirements that no longer apply due to legislative changes made to the UST Act.

local governments:

No anticipated costs or savings for local government. The changes expand the range of individuals who may become Class A or Class B operators to meet requirements already in place, and remove requirements that no longer apply due to legislative changes made to the UST Act.

small businesses:

No costs are anticipated--The proposed changes allow individuals to become Class A or Class B operators in certain situations, expanding the range of individuals who may become registered operators, to meet requirements that are already in place. An UST owner or operator who is a small business may realize savings of approximately $250 (the cost of training and registration as a Class A or Class B operator) in situations where a third-party class B operator may be designated as the Class A operator. The aggregate savings would depend on the number of UST owner/operators who take advantage of this option. Removing references to the UST compliance tag has no cost or savings; the changes are made only to remove requirements that no longer apply due to legislative changes made to the UST Act.

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

No costs are anticipated--The proposed changes allow individuals to become Class A or Class B operators in certain situations, expanding the range of individuals who may become registered operators, to meet requirements that are already in place. An UST owner or operator may realize savings of approximately $250 (the cost of training and registration as a Class A or Class B operator) in situations where a third-party class B operator may be designated as the Class A operator. The aggregate savings would depend on the number of UST owner/operators who take advantage of this option. Removing references to the UST compliance tag has no cost or savings; the changes are made only to remove requirements that no longer apply due to legislative changes made to the UST Act. Non-fiscal impacts: The proposed changes make it easier for UST owner/operators to meet the operator training requirements already in place by expanding the range of individuals who may become Class A and Class B operators. This allows, in some situations, for individuals who have greater expertise and day-to-day oversight for UST systems to become registered operators, instead of requiring that individuals who have little or no hands-on knowledge of UST systems be the Class A and Class B operators. The other proposed changes only remove requirements that no longer apply due to legislative changes made to the UST Act.

Compliance costs for affected persons:

No costs are associated with the proposed changes. The changes expand the range of individuals who may become Class A or Class B operators to meet requirements already in place, and remove requirements that no longer apply due to legislative changes made to the UST Act.

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

The changes make it easier for UST owners and operators to provide a Class A operator in a case where the owner acquires the property by foreclosure or other default, and saves the cost of becoming a Class A operator. The other changes do not have any significant 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 gastin@utah.gov

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

R311. Environmental Quality, Environmental Response and Remediation.

R311-201. Underground Storage Tanks: Certification Programs and UST Operator Training.

R311-201-12. UST Operator Training and Registration.

(a) To meet the Operator Training requirement (42 USC Section 6991i) of the Solid Waste Disposal Act as amended by the Energy Policy Act of 2005, each UST facility shall, by January 1, 2012, have UST facility operators that are trained and registered according to the requirements of this section. Each facility shall have three classes of operators: A, B, and C.

(1) A facility may have more than one person designated for each operator class.

(2) An individual acting as a Class A or B operator may do so for more than one facility.

(b) The UST owner or operator shall provide documentation to the Executive Secretary to identify the Class A, B, and C operators for each facility. If an owner or operator does not register and identify Class A, B, and C operators for a facility, the certificate of compliance for the facility may be revoked for failure to demonstrate substantial compliance with all state and federal statutes, rules and regulations.

(c) After January 1, 2012, new Class A and B operators shall be trained and registered within 30 days of assuming responsibility for an UST facility. New Class C operators shall be trained before assuming the responsibilities of a Class C operator.

(d) The Class A operator shall be an owner, operator, [or] employee, or individual designated under Subsection R311-201-12(d)(2). The Class A operator [who] has primary responsibility for the broader aspects of the statutory and regulatory requirements and standards necessary to operate and maintain the UST system.

(1) The Class A operator shall:

([1]A) have a general knowledge of UST systems;

([2]B) ensure that UST records are properly maintained according to 40 CFR 280;

([3]C) ensure that yearly UST fees are paid;

([4]D) ensure proper response to and reporting of emergencies caused by releases or spills from USTs;

([5]E) make financial responsibility documents available to the Executive Secretary as required; and

([6]F) ensure that Class B and Class C operators are trained and registered.

(2) An owner or operator may designate a third-party Class B operator as a Class A operator if:

(A) the UST owner or operator is a financial institution or person who acquired ownership of an UST facility solely to protect a security interest in that property and has not operated the USTs at the facility;

(B) all USTs at the facility are properly temporarily closed in accordance with 40 CFR 280.70 and Section R311-204-4; and

(C) all USTs at the facility are empty in accordance with 40 CFR 280.70(a).

(e) The Class B operator shall implement routine daily aspects of operation, maintenance, and recordkeeping for UST systems. The Class B operator shall be an owner, operator, employee, or third-party Class B operator. The Class B operator shall:

(1) ensure that on-site UST operator inspections are conducted according to the requirements of Subsection R311-201-12(h);

(2) ensure that UST release detection is performed according to 40 CFR 280 subpart D;

(3) ensure that the status of the UST system is monitored every seven days for alarms and unusual operating conditions that may indicate a release;

(4) document the reason for an alarm or unusual operating condition identified in Subsection R311-201-12(e)(3), if it is not reported as a suspected release according to 40 CFR 280.50;

(5) ensure that appropriate release detection and other records are kept according to 40 CFR 280.34 and 280.45, and are made available for inspection;

(6) ensure that spill prevention, overfill prevention, and corrosion protection requirements are met;

(7) be on site for facility compliance inspections, or designate another individual to be on site for inspections;

(8) ensure that suspected releases are reported according to the requirements of 40 CFR 280.50; and

(9) ensure that Class C operators are trained and registered, and are on-site during operating hours.

(f) After January 1, 2012, any individual providing services as a third-party Class B operator shall be trained and registered in accordance with Subsection R311-201-12(j) and shall:

(1) be a current certified UST installer as either a general installer or service/repair technician, or

(2) meet the training requirements of a certified UST inspector and document comprehensive or general liability insurance with limits of $250,000 minimum per occurrence.

(g) The Class C operator is an employee and is generally the first line of response to events indicating emergency conditions. A Class C operator shall:

(1) be present at the facility at all times during normal operating hours;

(2) monitor product transfer operations according to 40 CFR 280.30(a), to ensure that spills and overfills do not occur;

(3) properly respond to alarms, spills, and overfills;

(4) notify Class A and/or Class B operators and appropriate emergency responders when necessary; and

(5) act in response to emergencies and other situations caused by spills or releases from an UST system that pose an immediate danger or threat to the public or to the environment, and that require immediate action.

(h) UST Operator Inspections.

(1) Each UST facility shall have an on-site operator inspection conducted every 30 days, or as approved under Subsection R311-201-12(h)(4) or (5). The inspection shall be performed by or under the direction of the designated Class B operator. The Class B operator shall ensure that documentation of each inspection is kept and made available for review by the Executive Secretary.

(2) The UST operator inspection shall document that:

(A) release detection systems are properly operating and maintained;

(B) spill, overfill, vapor recovery, and corrosion protection systems are in place and operational;

(C) tank top manways, tank and dispenser sumps, secondary containment sumps, and under-dispenser containment are intact, and are properly maintained to be free of water, product, and debris;

(D) [the tag or other identifying method issued under Subsection 19-6-411(7) is properly in place on each tank;

(E)] alarm conditions that could indicate a release are properly investigated and corrected, and are reported as suspected releases according to 40 CFR 280.50 or documented to show that no release has occurred; and

([F]E) unusual operating conditions and other indications of a release or suspected release indicated in 40 CFR 280.50 are properly reported.

(3) The individual conducting the inspection shall use the form "UST Operator Inspection- Utah" to conduct on-site operator inspections. The form, dated April 30, 2009, and including information required to be completed during the inspection, is hereby incorporated by reference.

(4) The Executive Secretary may allow operator inspections to be performed less frequently in situations where it is impractical to conduct an inspection every 30 days. The owner or operator shall request the exemption, justify the reason for the exemption, and submit a plan for conducting operator inspections at the facility.

(5) An UST facility whose tanks are properly temporarily closed according to 40 CFR 280.70 and R311-204-4 shall have an operator inspection every 90 days.

(i) A facility that normally has no employee or other responsible person on site, or is open to dispense fuel at times when no employee or responsible person is on site, shall have:

(1) a sign posted in a conspicuous place, giving the name and telephone number of the facility owner, operator, or local emergency responders, and

(2) an emergency shutoff device, if the facility dispenses fuel.

(j) Operator Training and Registration

(1) Training and testing.

(A) Applicants for Class A and B operator registration shall successfully complete an approved operator training course within the six-month period prior to application.

(B) The training course shall be approved by the Executive Secretary, and shall include instruction in the following: notification, temporary and permanent closure, installation permitting, underground tank requirements of the 2005 Energy Policy Act, Class A, B, and C operator responsibilities, spill prevention, overfill prevention, UST release detection, corrosion protection, record-keeping requirements, emergency response, product compatibility, Utah UST rules and regulations, UST financial responsibility, and delivery prohibition.

(C) Applicants for Class A and B operator registration shall successfully pass a registration examination authorized by the Executive Secretary. The Executive Secretary shall determine the content of the examination.

(D) An individual applying for Class A or B operator registration may be exempted from meeting the requirements of Subsections R311-201-12(j)(1)(A) and (C) by completing the following within the six-month period prior to application:

(i) successfully passing a nationally recognized UST operator examination approved by the Executive Secretary, and

(ii) successfully passing a Utah UST rules and regulations examination authorized by the Executive Secretary. The Executive Secretary shall determine the content of the examination.

(E) Class C operators shall receive instruction in product transfer procedures, emergency response, and initial response to alarms and releases.

(2) Registration application.

(A) Applicants for Class A and B operator registration shall submit a registration application to the Executive Secretary, shall document proper training, and shall pay any applicable fees.

(B) Class C operators shall be designated by a Class B operator. The Class B operator shall maintain a list identifying the Class C operators for each UST facility. The list shall identify each Class C operator, the date of training, and the trainer. Identification on the list shall serve as the operator registration for Class C operators.

(C) A registered Class A or B operator may act as a Class C operator by meeting the training and registration requirements for a Class C operator.

(D) Class A and B registration shall be effective for a period of three years, and shall not lapse or expire if the registered operator leaves the employment of the company under which the registration was obtained.

(3) Renewal of registration.

(A) Class A and B operators shall apply for renewal of registration not more than six months prior to the expiration of the registration by:

(i) submitting a completed application form;

(ii) paying any applicable fees; and

(iii) documenting successful completion of any re-training required by Subsection R311-201-12(k).

(B) If the Executive Secretary determines that the operator meets all the requirements for registration, the Executive Secretary shall renew the applicant's registration for a period equal to the initial registration.

(C) Any applicant for renewal who has a registration that has been expired for more than two years prior to submitting a renewal application shall successfully satisfy the training and examination requirements for initial registration under Subsection R311-201-12(j)(1) before receiving the renewal registration.

(k) Re-training.

(1) A Class A operator shall be subject to re-training requirements if any facility for which the Class A operator has oversight is found to be out of compliance due to:

(A) lapsing of certificate of compliance;

(B) failure to provide acceptable financial responsibility; or

(C) failure to ensure that Class B and C operators are trained and registered.

(2) A Class B operator shall be subject to re-training requirements if a facility for which the Class B operator has oversight is found to be out of compliance due to:

(A) failure to document significant operational compliance, as determined by the EPA Release Prevention Compliance Measures Matrix and Release Detection Compliance Measures Matrix, both incorporated by reference in Subsection R311-206-10(b)(1);

(B) failure to perform UST operator inspections required by Subsection R311-201-12(h); or

(C) [failure to have the tag or other identifying method issued under Subsection 19-6-411(7) properly in place on each tank; or

(D)] failure to ensure that Class C operators are trained and registered, and are on-site during operating hours.

(3) To be re-trained, Class A and Class B operators shall successfully complete the appropriate Class A or B operator training course and examination, or shall complete an equivalent re-training course and examination approved by the Executive Secretary.

(4) Class A and B operators shall be re-trained within 90 days of the date of the determination of non-compliance, and shall submit documentation showing successful completion of the re-training to the Executive Secretary within 30 days of the re-training. If the documentation is not received, the Executive Secretary may revoke the certificate of compliance for the facility for failure to demonstrate substantial compliance with all state and federal statutes, rules and regulations.

(5) If the documentation of re-training is not received by the Executive Secretary within six months of the date of determination of non-compliance, the Class A or B operator's registration [will]shall lapse. To re-register, the operator shall meet the requirements of Subsection R311-201-12(j)(1) and (2).

(6) If a facility for which a Class A or B operator has oversight is found to be out of compliance under Subsections R311-201-12(k)(1) or (2), re-training shall not be required if the Class A or B operator successfully completes and documents re-training under Subsections R311-201-12(k)(3) and (4) for a prior determination of non-compliance that occurred during the previous nine months.

(l) Reciprocity.

(1) If the Executive Secretary determines that another state's operator training program is equivalent to the operator training program provided in this rule, he may accept an applicant's Class A or Class B registration application, provided that the applicant:

(A) submits a completed application form;

(B) passes the Utah UST rules and regulations examination referenced in Subsection R311-201-12(j)(1)(D)(ii), and

(C) submits payment of any applicable registration fees.

(2) The Class A or Class B registration shall be valid until the Utah registration expiration described in Subsection R311-201-12(j)(2)(D).

 

KEY: hazardous substances, administrative proceedings, underground storage tanks, revocation procedures

Date of Enactment or Last Substantive Amendment: [January 13, ]2012

Notice of Continuation: April 10, 2012

Authorizing, and Implemented or Interpreted Law: 19-1-301; 19-6-105; 19-6-402; 19-6-403; 63G-4-102; 63G-4-201 through 205; 63G-4-503