BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.56.101, 17.56.309, 17.56.402, 17.56.407, 17.56.408, and 17.56.1407 pertaining to underground storage tank operation requirements, leak detection, and license renewal training

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NOTICE OF AMENDMENT   (UNDERGROUND STORAGE TANKS)

 

            TO:  All Concerned Persons

 

            1.  On August 27, 2009, the Department of Environmental Quality published MAR Notice No. 17-292 regarding a notice of public hearing on the proposed amendment of the above-stated rules at page 1450, 2009 Montana Administrative Register, issue number 16.

 

            2.  The department has amended ARM 17.56.101, 17.56.309, 17.56.402, 17.56.407, and 17.56.1407 exactly as proposed and has amended ARM 17.56.408 as proposed but with the following changes, stricken matter interlined, new matter underlined:

 

            17.56.408  METHODS OF RELEASE DETECTION FOR PIPING  (1) through (4) remain as proposed.

            (5)  Testing conducted pursuant to (3) must be accomplished by a licensed installer or compliance inspector pursuant to this chapter.  Initial sump functional tests at each facility must occur be conducted prior to the expiration of the facility's current operating permit, but are not required before December 31, 2010 December 31, 2012.

 

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

 

            COMMENT NO. 1:  The Montana Petroleum Marketers C-Store Association (Association) supports the proposed amendment in ARM 17.56.309(7) allowing the department to establish an alternative time period for corrections of violations that have moderate or minor gravity.  We appreciate the consideration of these events.

            RESPONSE:  The department acknowledges the comment.

 

            COMMENT NO. 2:  The Association supports the proposed amendment in ARM 17.56.402 that will require a tank owner to observe leak test results.  However, we would ask for clarification from the department in adopting the rules, on what "types" of observations are acceptable.

            RESPONSE:  In ARM 17.56.402(2), "observation" means a visual observation.  In the event of a failed test result, the department wants an owner, operator, or facility employee to know about the failed test and respond to it immediately.

            COMMENT NO. 3:  The Association supports the proposed amendments in ARM 17.56.407(1)(d), (e), (f), and (g) regarding the disabling of pumping systems and investigation of failed leak tests.  However, we would ask for clarification regarding required investigations in accordance with ARM 17.56.501 through 17.56.508.  ARM 17.56.407 incorporates by reference water quality standards WQB-7, RBCA Tier 1 standards, etc.  Does this mean that every time an alarm triggers a tank owner would have to investigate to that level if a problem can't be detected or a technician is not available?  We don't believe this is the intent but it could be interpreted that way.  If it is the intent, then support of this section could become one of opposition.  Perhaps this section is written too broadly.

            RESPONSE:  The department agrees that every triggered alarm requires an investigation.  This requirement is in the existing rules (ARM 17.56.503(1) and 17.56.504(1)), and the proposed revisions do not change the requirement.  The proposed revisions require prompt observation of the leak testing results, and, if the leak detection system has the capability, temporarily disabling of the pumping system after a failed leak test.

 

            COMMENT NO. 4:  The Association is not opposed to the concept of what the proposed amendments in ARM 17.56.101(53), defining "primary leak detection methods," and the proposed amendments in ARM 17.56.408(2), (3), and (4), for testing of sumps, are attempting to address.  While some perceive that tank owners who have installed interstitial monitoring systems are being penalized for investing in "better" technology, it is the view of the majority that the end result will outweigh the short term burdens.

            RESPONSE:  The department acknowledges the comment.

 

            COMMENT NO. 5:  This Association is opposed to the proposed amendment in ARM 17.56.408(5) that would require sump testing to be conducted no later than December 21, 2010.  In 2010 all credit card acceptance devices at retail fuel dispensers, (Point of Sale or POS PIN acceptance devices) must be exchanged for systems that secure customer data in a globally consistent manner.  This is referred to as Payment Card Industry (PCI) Data Security Standard compliance, and it addresses the theft of a card holder's personal information.  It is required by the five leading credit card companies in order to offer their card services at retail locations.  The average cost to a facility to install the new systems, depending on the number of dispensers, will be $12,000 to $20,000 per location.  This will result in a great financial burden, especially for medium to small operators (not just petroleum retailers).  In consulting with industry service providers, it is estimated the cost to test sumps at UST systems will be $5,000 to $7,000, which will be financially burdensome to tank owners.  We do not believe a vast majority of our members in Montana can withstand the cost of both the PCI compliance requirements and an additional large cost for sump testing.  Another issue to consider is that there are limited providers available in this industry to conduct the types of services required by the "change-out" for POS systems, let alone adding the testing of sumps in the same year.  It will be challenging for some retailers in outlying areas to secure a contractor to complete PCI compliance.  Therefore, we ask that the proposed amendment in ARM 17.56.408(5) state that:  "Initial sump functional tests at each facility must occur prior to December 31, 2012."

            RESPONSE:  In ARM 17.56.408(5), the department's intent was to require sump testing before the owner or operator's next operating permit renewal date, but not before December 21, 2010.  Because an operating permit is valid for three years, the Association's suggested language "Initial sump functional tests at each facility must occur prior to December 31, 2012" is close to the department's intent.  The department has amended ARM 17.56.408(5) to clarify the requirement.

 

Reviewed by:                                     DEPARTMENT OF ENVIRONMENTAL

                                                                        QUALITY

 

 

 

/s/ David Rusoff                                    By:  /s/ Richard H. Opper                        

DAVID RUSOFF                                           RICHARD H. OPPER, DIRECTOR

Rule Reviewer

 

            Certified to the Secretary of State, November 16, 2009.