Montana Administrative Register Notice 17-325 No. 19   10/13/2011    
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In the matter of the amendment of ARM 17.56.308 through 17.56.310 and the adoption of New Rules I and II pertaining to operating tags and delivery prohibition










            TO:  All Concerned Persons


            1.  On June 23, 2011, the Department of Environmental Quality published MAR Notice No. 17-325 regarding a notice of public hearing on the proposed amendment and adoption of the above-stated rules at page 1048, 2011 Montana Administrative Register, issue number 12.


            2.  The department has amended ARM 17.56.308, 17.56.309, and 17.56.310 and adopted New Rule I (ARM 17.56.311) exactly as proposed, and has adopted New Rule II (17.56.312) as proposed, but with the following changes, new matter underlined, stricken matter interlined:


            NEW RULE II (17.56.312)  DELIVERY PROHIBITION  (1)  For purposes of meeting the delivery prohibition requirements of The Energy Policy Act of 2005, whenever the department finds that there has been significant noncompliance with Title 75, chapter 11, part 5, MCA, or with rules, permits, or orders issued pursuant to part 5, and the department has suspended, revoked, or determined not to renew an operating permit pursuant to ARM 17.56.308(7), or determined not to issue, or determined not to renew an operating permit pursuant to 75-11-509(9), MCA, the department will classify such underground storage tank(s) as ineligible for delivery, deposit, or acceptance of product.

            (2)  The department shall:

            (a)  make every reasonable effort to notify tank owners, operators, or both prior to prohibiting the delivery, deposit, or acceptance of product;

            (b)  notify product deliverers when an underground storage tank is ineligible for delivery, deposit, or acceptance of product;

            (c)  issue a certificate that clearly identifies the ineligible underground storage tank classified in (1); and

            (d)  issue an operating permit to the owner or operator within ten business days to reclassify an ineligible underground storage tank as eligible following correction of violations identified as significant noncompliance based on a follow-up inspection report submitted to the department in accordance with ARM 17.56.309(8).

            (3)  The certificate issued in (2)(c) must be conspicuously displayed at the facility until the underground storage tank is reclassified as eligible for delivery, deposit, or acceptance of product.


            3.  The following comments were received and appear with the department's responses:


            COMMENT NO. 1:  One commentor suggested that dispensing with the current operating tag system will make it more difficult for delivery drivers to determine if it is legal to dispense fuel into a particular tank, since the driver would have to check inside the facility office under the proposed rules, and the facility office may not even be open at the time product is delivered.

            RESPONSE:  Since the "tag" system was adopted in 2001, there are many instances of bulk fuel delivery drivers ignoring an operating tag on an underground storage tank (UST) system.  This may occur because owners/operators often fail to remove an operating tag when the status of a tank has changed from active to inactive, or alternatively, because the owner/operator fails to properly install an operating tag when received from the department.  Additionally, delivery drivers may be confused by the collection of operating tags that have accumulated on some UST systems over the past ten years and ignore them altogether.  Finally, department personnel have personally observed UST fuel deliveries and have noted that drivers do not routinely check for an operating tag.

            It is the department's experience that many bulk fuel delivery drivers prefer not to depend on owners/operators to properly place or remove an operating tag on the access pipe, but prefer instead to rely on the department's web site listing of the current status of all regulated UST systems in the state.  This procedure removes the uncertainty of reliance on owner/operator actions with regard to a tank status and allows the delivery drivers to rely on the department's more accurate and up-to-date web site listings.  Accordingly, the department has determined that the current operating tag system is ineffective and a waste of department resources and declines to reconsider the proposed rules in response to the comment.


            COMMENT NO. 2:  One commentor stated the department should have discretion to consider unique military missions.

            RESPONSE:  The department concurs with the commentor; however, no change to the proposed rules is required.  ARM 17.56.310(6) allows the department to issue an emergency operating permit for USTs that do not have a current operating permit.  This administrative rule specifically allows for the issuance of an operating permit when it determines that national security issues outweigh the risks to human health or the environment that could result from operation of the UST.


            COMMENT NO. 3:  The department should make significant noncompliance findings in accordance with MCA administrative enforcement provisions.  A commentor stated that New Rule II Delivery Prohibition does not specify how the department determines a finding of significant noncompliance and recommends adding language that significance criteria be in accordance with 75-1-512, MCA. Additionally, the commentor suggests that the proposed rule does not state if the owner/operator has the opportunity to contest a finding before a delivery prohibition is effective.

            RESPONSE:  The department agrees that the proposed rule as written appears to allow the department to issue a delivery prohibition without providing any recourse for the owner or operator to challenge the prohibition, which was not the department's intent.  Accordingly, the department is modifying the proposed rule to clarify that a delivery prohibition only occurs when the department suspends, revokes, determines not to issue, or determines not to renew an operating permit, each of which actions may be challenged by requesting a hearing before the Board of Environmental Review.  The department, therefore, is amending (1) as shown above.


Reviewed by:                                     DEPARTMENT OF ENVIRONMENTAL





/s/ James M. Madden                          By:  /s/ Richard H. Opper                        

JAMES M. MADDEN                                   RICHARD H. OPPER, DIRECTOR

Rule Reviewer


            Certified to the Secretary of State, October 3, 2010.


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