Montana Administrative Register Notice 17-348 No. 15   08/08/2013    
    Page No.: 1381 -- 1381
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In the matter of the amendment of ARM 17.56.201 and 17.56.202 pertaining to performance standards for new UST systems and upgrading of existing UST systems










            TO: All Concerned Persons


            1. On August 28, 2013, at 1:00 p.m., the Department of Environmental Quality will hold a public hearing in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.


            2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., August 19, 2013, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.


            3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:



            (1) In order to prevent releases due to structural failure, corrosion, or spills and overfills for as long as the UST system is used to store regulated substances, all owners and operators of new UST systems shall meet the following requirements:

            (a) through (a)(iii) remain the same.

            (b) the piping that may contain routinely contains regulated substances, including vent lines and fill lines, and is in contact with the ground, must be properly designed, constructed, and protected from corrosion in accordance with any one of the codes of practice developed by a nationally recognized association or independent testing laboratory identified in (1)(b)(i) and (ii):

            (i) through (2) remain the same.


            AUTH: 75-11-505, MCA

            IMP: 75-11-505, MCA


            REASON: The department is proposing to remove the requirement in ARM 17.56.201(1)(b), requiring corrosion protection for pipes that may contain regulated substances.  The department believes that the remaining spill and overfill protection rules will be protective of human health and the environment because spill and overfill equipment will prevent regulated substances from entering components of the UST system, such as vent and fill pipes, that are not designed to routinely contain product. Based on its experiences over the past ten years, the department has determined that no significant additional environmental benefit is gained by requiring corrosion protection for system components that are prevented from routinely containing regulated substances by the proper operation of required spill and overfill protection on tank systems.  The department has further determined that enforcement of the provisions in ARM 17.56.201(1)(b), requiring corrosion protection for pipes that may contain regulated substances, represents a significant cost to tank system owners and operators while providing little additional environmental benefit.

            In addition to leak prevention equipment standards, department rules establish general operating requirements requiring owners and operators to "ensure that releases due to spilling or overfilling do not occur" by determining that the "volume available in the tank is greater than the volume of product to be transferred to the tank before the transfer is made and that the transfer operation is monitored constantly" (ARM 17.56.301(1)).  The U.S. Department of Transportation has also adopted rules stating that delivery drivers must identify and gauge receiving tanks and calculate the volume of regulated product that can be safely pumped into the tank without the danger of overfill.

            Requiring piping that may contain regulated substances to have corrosion protection identical to tanks and piping that routinely contain product is more stringent than current Environmental Protection Agency (EPA) requirements. Adopting the proposed amendment would put department rules in line with current EPA requirements without weakening state environmental protection standards.

            In 1989, the Department of Health and Environmental Sciences (DHES) proposed a set of administrative rules (MAR Notice No. 16-2-349) necessary to implement the provisions of Chapter 384, Laws of 1989 (HB 603) and secure the approval of the EPA for an underground storage tank release detection, prevention, and correction program.

            Among the proposed rules were provisions requiring corrosion protection for piping and vents that may contain regulated substances (ARM 16.45.201 and 16.45.202) and a process for the department to grant a variance from regulatory requirements. The rules further stated that all underground storage tank systems must comply with the new rules before December 1998. The statement of reasonable necessity included with the rule package did not specifically address the reason for individual rules provisions, but concluded the standards were necessary to reduce the likelihood of a tank release and for the protection of human health and the environment. Public comments raised concerns that some of the proposed rules were more stringent than EPA regulations, but no comments specifically identified the corrosion protection requirements.

            Prior to the 1998 compliance deadline, the regulated community raised objections to the enforcement of corrosion protection requirements on portions of tank systems that do not routinely contain product on the grounds that the additional corrosion protection requirement was not necessary for protecting the environment from tank releases and was an economic burden to owners and operators.  In 2002, the department responded by proposing a department-initiated variance to the 1989 corrosion protection rule giving owners and operators another ten years to bring tank systems into compliance with the corrosion protection requirements.  The ten-year compliance variance expired in October 2012.  During the period the variance was in effect, the department reviewed the compliance and inspection reports for the nearly 1300 tank facilities in Montana, information from other regulatory agencies, and documentation from industry experts to determine whether the additional corrosion protection on system components that do not routinely contain product offered a substantial improvement in leak prevention.  The information gathered by the department demonstrated no significant additional benefit to human health or the environment related to these additional corrosion protection requirements for system components that do not routinely contain regulated substances.

            The department estimates less than 15 percent of regulated tank systems remain out of compliance with the corrosion protection requirements in ARM 17.56.201(1)(b).  These noncompliant systems must come into immediate compliance at a significant cost to owners or operators if this proposed rule is not adopted.  The department will be required to redirect financial and staff resources from other program areas, creating the potential for delay in permitting and other compliance assistance activities.  Maintaining the corrosion protection requirement in ARM 17.56.201(1)(b), may also affect the standing of tank system owners and operators with the Petroleum Tank Release Compensation Fund (Fund).  The Fund's current practice is to suspend or reduce any payment of claims to owners or operators if the owner or operator is in violation of underground storage tank program statutes and rules.  An otherwise compliant owner or operator, who is eligible to receive compensation from the Fund, may face a reduction in claim reimbursement or the complete suspension or elimination of reimbursement of otherwise eligible corrective action costs if the owner or operator receives a notice of noncompliance from the department for the failure to meet the existing corrosion protection requirements.


            17.56.202 UPGRADING OF EXISTING UST SYSTEMS (1) No later than December 22, 1998, a All existing UST systems must comply with one of the following requirements:

            (a) through (2)(c)(ii) remain the same.

            (3) Metal piping that may contain routinely contains regulated substances, including vent lines and fill lines, and is in contact with the ground, must be cathodically protected in accordance with all of the standards adopted by reference in ARM 17.56.201(2)(p) through (s) and must meet the requirements of ARM 17.56.201(1)(b)(ii)(B), (C), and (D).

            (4) through (5)(d) remain the same.


            AUTH: 75-11-505, MCA

            IMP:  75-11-505, MCA


            REASON: The amendment to ARM 17.56.202(1) proposes to strike the date reference for existing tank systems to come into compliance.  The compliance deadline has passed and is no longer relevant to existing tank systems.  The reason for the proposed amendments to ARM 17.56.202(3) is the same as set forth in the statement of reasonable necessity for the proposed amendments to ARM 17.56.201(1).


            4. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., September 6, 2013. To be guaranteed consideration, mailed comments must be postmarked on or before that date.


            5. Kirsten Bowers, attorney, has been designated to preside over and conduct the hearing.


            6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supplies; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; e-mailed to ejohnson@mt.gov; or may be made by completing a request form at any rules hearing held by the department.


            7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


 8. With regard to the requirements of Chapter 318, Section 1, Laws of 2013, the department has determined that the amendment of the above-referenced rules will significantly and directly impact small businesses.


Reviewed by:                                        DEPARTMENT OF ENVIRONMENTAL QUALITY




/s/ John F. North                                   BY: /s/ Tracy Stone-Manning                            

JOHN F. NORTH                                         TRACY STONE-MANNING, Director

Rule Reviewer


Certified to the Secretary of State, July 29, 2013.


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