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| Montana Administrative Register Notice 17-293 | No. 22 11/25/2009 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On September 10, 2009, the Department of Environmental Quality published MAR Notice No. 17-293 regarding a notice of public hearing on the proposed adoption of the above-stated rules at page 1529, 2009 Montana Administrative Register, issue number 17. 2. The department has adopted New Rule V (17.56.1505) exactly as proposed and has adopted New Rules I (17.56.1501), II (17.56.1502), III (17.56.1503), and IV (17.56.1504) as proposed, but with the following changes, stricken matter interlined, new matter underlined: NEW RULE I (17.56.1501) OPERATOR TRAINING DEFINITIONS For purposes of ARM 17.56.1502 through 17.56.1505, the following definitions apply: (1) "Class A operator" means an owner (2) "Class B operator" means an owner (3) "Class C operator" means an (4) remains as proposed. NEW RULE II (17.56.1502) OPERATOR TRAINING (1) through (3) remain as proposed.
NEW RULE III (17.56.1503) OPERATOR TRAINING: AUTHORIZED PROVIDERS; REQUIRED SUBJECTS (1) Training of UST system operators must be performed by the department or by a third-party trainer approved by the department pursuant to [New Rule (2) through (4)(c) remain as proposed. (5) Class A and B operators who choose department-sponsored training shall pass a department-administered test with at least an 80% score. (6) Class C operators who: (a) choose department-sponsored training, shall pass a department-administered test with at least an 80% score; or (b) are trained by a trained Class A or B operator, shall successfully complete a practical demonstration or other evaluation procedure determined to be acceptable by the department and pre-approved by the department in writing. NEW RULE IV (17.56.1504) OPERATOR TRAINING: RECORDKEEPING (1) remains as proposed. (2) The owner or operator shall keep the operator training record for a person at least three years after the person served as a Class A, B, or C operator at the facility. 3. The following comments were received and appear with the department's responses: New Rule I COMMENT NO. 1: We generally support the definitions of "Class A Operator," "Class B Operator," and "Class C Operator," which are consistent with the definitions in the EPA Guidelines. However, the proposed new rule goes beyond the requirements of the EPA Guidelines in one key respect by requiring that a Class A and Class B operator be "an owner, operator, or employee" of the UST facility. Proposed New Rule I(1) and (2). In addition, the proposed new rule is ambiguous with respect to whether Class C operators must be an owner, operator, or employee. We believe that owners should have the flexibility to hire contractors or consultants to serve as operators. The EPA Guidelines do not prohibit third parties from serving as UST operators under the direction of owners. Moreover, we do not believe there would be any compromise in protection of the environment, health, or safety if contractors or consultants were allowed to serve as UST operators. Owners would continue to be responsible for ensuring that persons serving as UST operators, including contractors or consultants, are trained in accordance with the rules. Owners also would have the flexibility to reduce compliance costs by utilizing the most qualified and experienced UST professionals available, including those with intimate knowledge of the UST systems at a facility, without sacrificing any of the environmental or safety benefits of having trained operators. To ensure that contractors or consultants can serve as operators, we ask that the definition of "Class A Operator," "Class B Operator," and "Class C Operator" be changed to allow a contractor or consultant to serve as an operator for each operator class. RESPONSE: The department agrees that EPA's guidelines (Grant Guidelines to States For Implementing the Operator Training Provision of the Energy Policy Act of 2005, page 7 (August 2007)) do not state that Class A and B operators must be employees, but the guidelines do provide that Class C operators must be employees. The department has amended New Rule I(3) to state that a Class C operator must be an employee of the owner or operator of the facility. The comment requests that the phrase "contractor or consultant" be added to the definitions of Class A, B, and C operators. The definitions of Class A, B, and C operators include the term "operator," which is defined in 75-11-203, MCA. The definition of "operator" provides: "… a person in control of or having responsibility for the operation, maintenance, or management of an underground storage tank system." Therefore, the definition of "operator" could include a contractor or consultant. The definitions of Class A and B operators do not need to be amended to include contractors or consultants that meet the definition of "operator" provided in 75-11-203, MCA. However, the EPA guidelines provide that a Class C operator must be an employee, which would exclude a contractor or consultant from being a Class C operator. Therefore, the department declines to amend the definitions of Class A, B, and C operators by adding "contractor or consultant" to the definitions. New Rule II COMMENT NO. 2: The recordkeeping requirements proposed in Proposed New Rule IV, which would require owners and operators to make operator training records available to the Montana Department of Environmental Quality (MDEQ), would serve the same purpose as the notification requirement in New Rule II(4). Because proposed New Rule II(2) would require that a new Class A or B operator be trained within 30 days of assuming Class A or B responsibilities and that Class C operators be trained before assuming Class C responsibilities, training records for new Class A, B, and C operators would be available to MDEQ within 30 days of each operator assuming its responsibilities. Requiring an additional notification step on top of training and recordkeeping is unnecessarily duplicative. The proposed recordkeeping requirements in New Rule IV are sufficient to meet the informational requirements set forth in the EPA Guidelines. We therefore request that the department eliminate the requirement to notify the MDEQ when an operator is replaced. RESPONSE: The department agrees that the notification requirement in New Rule II(4) is not necessary, and the department has deleted it. See Comment No. 3. COMMENT NO. 3: The department received several comments concerning the notification requirement in New Rule II(4). The comments stated concerns about the high turnover of Class C operators, and the number of notifications that would be required. RESPONSE: The department agrees that there may be significant turnover of Class C operators and has removed the notification requirement in New Rule II(4). COMMENT NO. 4: In New Rule II(1) and (2), the department is requiring that Class A, B, and C operators be trained by August 8, 2010. The EPA deadline is August 8, 2012. We request that the state requirement be changed to August 8, 2012. RESPONSE: The department believes that the operator training, which includes spill prevention, overfill prevention, release detection, and emergency response, is beneficial to the owner or operator and the environment. The training may result in earlier release detection that would reduce environmental contamination and the associated cleanup costs. Also, the department is providing the training free of charge, and the training is currently available either on-line or by obtaining a CD from the UST Program. The department believes it is in the best interest of affected owners and operators to complete the training as soon as practicable. Therefore, the department has not amended the rule as requested. COMMENT NO. 5: New Rule II(2), states: "a trained Class A or B operator of a UST system may be replaced by an untrained operator if within 30 days after assuming operation responsibilities the new operator receives training in accordance with New Rule III." We would like to see the 30 days changed to 90 days. (Another commentor requested that 30 days be changed to 60 days.) RESPONSE: Because the department receives federal UST program funding (Subtitle I funding), the department is required to adopt rules that implement the operator training provision of the Energy Policy Act of 2005, and the proposed rules adopt EPA's guidelines concerning the 30-day requirement. Because 30 days is the preferred time period in the EPA Guidelines, the department has not amended the rule as requested. COMMENT NO. 6: New Rule II(5), states: "Retraining must occur within a reasonable time frame established by the department." We would rather see a deadline that's not relative or at the discretion of the department. We would like the rule to state that retraining must occur within X number of days. What is reasonable to one person may not be reasonable to others. RESPONSE: The department agrees with the comment and has amended New Rule II(4) to provide: "Retraining must occur within 90 days of the department's determination that an UST system does not meet EPA's significant operational compliance (SOC) requirements for release prevention and release detection measures, or within a longer time frame established by the department in writing, on a case-by-case basis." New Rule III COMMENT NO. 7: The EPA commented that its Guidelines require that the operator training rules provide for an evaluation of operator knowledge of the minimum training required for each class of operator. The evaluation of operator knowledge is imposed on third-party training courses (New Rule V Operator Training: Third-Party Training Course Approval, (2)(b) "a description of the evaluation method." However, we do not see it stated for the department-sponsored training. RESPONSE: The department agrees with the comment and has amended New Rule III to provide for evaluation of operator knowledge. COMMENT NO. 8: Proposed New Rule III would allow operators to satisfy the training requirements by attending training conducted by the department or a state-approved third-party provider. New Rule III(l). While we support the proposed new rule's provisions allowing third parties to conduct training, we also believe that the proposed new rule should be changed in order to allow owners to provide training to their operators. RESPONSE: The EPA Guidelines do not provide for untrained owners to provide training to operators. Because the department receives federal UST program funding (Subtitle I funding), the department is required to adopt rules that would implement the operator training provision of the Energy Policy Act of 2005, and the proposed rules adopt EPA's guidelines concerning who may provide training. The department does not have the discretion to permit the training of operators by untrained owners. However, an owner may provide training if the owner's training program is approved by the department pursuant to New Rule V. Also, an owner who is a trained Class A or B operator may provide training to a Class C operator. Therefore, the department has not amended the rule as requested in the comment. COMMENT NO. 9: Proposed New Rule III(1) states that a Class C operator "may" be trained by a Class A or Class B operator." We ask that the MDEQ clarify who may provide Class C training. Specifically, we request that the proposed new rule be revised to allow owners to train Class C operators by methods that would include on-line training. RESPONSE: New Rule III has been amended to clarify who may provide Class C training. Pursuant to New Rule III(1), an owner may train a Class C operator if the owner is a trained Class A or B operator. However, the EPA Guidelines do not provide that an untrained owner may train a Class C operator. Because the department receives federal UST program funding (Subtitle I funding), the department is required to adopt rules that implement the operator training provision of the Energy Policy Act of 2005, and the proposed rules adopt EPA's guidelines concerning the training of Class C operators. Therefore, the department does not have the discretion to permit the training of Class C operators by untrained owners. New Rules III and V would allow the department to approve on-line training if it meets the requirements of those rules. Therefore, the department has not amended New Rule V, concerning on-line training, as requested in the comment. New Rule IV COMMENT NO. 10: We ask that proposed New Rule IV be revised to clarify that records of operator training must be kept only as long as the person serves as a Class A, B, or C operator at the facility, but not longer than five years. RESPONSE: The department agrees and has amended New Rule IV by adding a timeline for record retention. COMMENT NO. 11: Proposed New Rule IV(1)(b) states records must be kept either "at the UST system site" or "at a readily available alternative site and must be available for inspection by the department upon request." We believe this provision would allow an owner to keep training records in a centralized location, such as a principle place of business, as long as those records can be made available to the department upon request. Allowing an owner to maintain records at a central location would enable the owner to streamline its oversight of facilities and ensure that all the facilities it owns are in compliance with the training requirements. Therefore, we ask that the department clarify that records may be kept at an owner's principle place of business or other centralized location. RESPONSE: New Rule IV(1)(b) allows maintenance of records at a centralized location, such as a principle place of business, as long as those records can be made available to the department upon request. The department does not believe it's necessary to amend New Rule IV(1)(b). New Rule V COMMENT NO. 12: We ask that the proposed new rules be revised to state that operator training may be provided in a computer-based format that communicates the required training content, or, alternatively, that MDEQ clarify that computer-based training is an acceptable training format. Such a revision or clarification would bring the proposed new rule in line with the EPA Guidelines, which allow for "on-line" training if it includes an evaluation of operator knowledge. 72 Fed. Reg. at 44,526. RESPONSE: New Rules III and V would allow the department to approve on-line training if it meets the requirements of those rules. Therefore, the department has not amended the rule as requested in the comment. COMMENT NO. 13: Under proposed New Rule V(5), the MDEQ would recognize Class A or Class B operator training from another state "if the training requirements ... are at least as stringent as the training requirements under this subchapter. Proposed New Rule V(5). We strongly support recognition of training conducted in other states because it benefits owners, operators, and consumers by eliminating the need to provide redundant training and thereby lowering compliance costs. Reciprocity provisions are particularly important to owners, including our client, that operate fueling stations in multiple states. Therefore, we strongly support the reciprocity provision in the proposed new rule, with the modification, addition, and clarification suggested below. We ask that RESPONSE: Because Montana's UST program, administrative rules, and associated policies are different from many other states' UST requirements, it is necessary to base reciprocity for operator training on meeting the requirements of Montana's operator training rules. Therefore, the department has not amended the rule as requested in the comment. 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.
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