[27 Pa.B. 5341]
[Continued from previous Web Page] Subchapter E. Technical Standards for Underground Storage Tanks and Facilities
1. Section 245.411. Inspection frequency.
The Department received comments suggesting that the 5-year inspection frequency for underground storage tanks was not needed. One commentator stated that compliance with performance standards would be sufficient to ensure proper operation.
Section 501(c)(3) of the act requires inspection of underground storage tanks prior to permitting and at a frequency thereafter determined by the Department. The Department believes that the 5-year inspection cycle is appropriate for underground storage tanks. Further, the Department feels that the inspection frequency is necessary to confirm compliance with operational requirements and performance standards. Facility inspections have been successful in promoting good operating procedures and recordkeeping through the technical assistance provided by the certified inspector. The Department acknowledges that for tank systems which have secondary containment, the environmental risk is reduced and a longer inspection frequency is appropriate. It is for this reason that the inspection frequency for these tank systems is 10 years.
2. Sections 245.421 and 245.422. Performance standards for new underground storage tank systems, and upgrading of existing underground storage tank systems.
Several commentators stated that the certification required in § 245.421(5) may go beyond the knowledge and expertise of an owner or operator. The Department agrees and has amended this section to read: ''Owners and operators shall ensure that a certified installer has installed the tank system by providing a certification of compliance on an appropriate form provided by the Department.''
STAC suggested that the Department should make provisions in § 245.421 to allow for the use of piping constructed of other noncorrosive materials besides fiberglass. The Department agrees and has added to § 245.421(2)(i) the language: ''. . . or other non-corrosive materials.''
3. Sections 245.424 and 245.425. Standards for new field constructed tank systems and reuse of removed tanks.
One commentator pointed out that when an underground storage tank is reinstalled, that it should be reinstalled in a manner that is consistent with the manufacturer's requirements. The Department agrees and has amended this section to read: ''Either the manufacturer, a person certified by the manufacturer, or a registered professional engineer warrants that the tank meets the requirements of § 245.421(1) (relating to performance standards for new underground storage tank systems).'' It should also be noted that the option of secondary containment has been deleted from the final rulemaking based on the same rationale.
4. Sections 245.431--245.435. Spill and overfill control, operation and maintenance including corrosion protection, compatibility, repairs allowed, and reporting and recordkeeping.
Two commentators expressed concern that § 245.434 (relating to repairs allowed) was unclear as to who is allowed to make repairs. The Department wants to clarify that repairs involving tank handling activities need not be completed by a Department certified installer. Repairs may be completed by other competent individuals such as a manufacturer's representative; that person must be under the direct, onsite supervision and control of a Department certified installer.
5. Section 245.443. Requirements for hazardous substance underground storage tank systems.
In preparing the final-form regulation the Department corrected a typographical error in § 245.443(2)(iv) relating to secondary containment of underground piping.
6. Section 245.452. Permanent closure and changes-in-service.
In comments regarding changes-in-service to aboveground storage tanks (see following discussion of § 245.562), two commentators noted that ''change-in-service'' was not defined. For clarity and ease of understanding, the Department has deleted the substantive definition of the term in § 245.452(d) and added a definition for ''change-in-service'' to § 245.1. A reference to § 245.452(d) in § 245.452(f) has been deleted as a result of this change.
7. Section 245.453. Assessing the site at closure or change-in-service.
Two commentators suggested that the title of the Department's technical document for closure of underground storage tank systems be added to § 245.453(a). This section has been amended to include the title of that technical document which is ''Closure requirements for underground storage tank systems.''
8. Section 245.455. Closure records.
One commentator recommended that records retention be required for a 10-year period. While § 245.455 requires owners and operators to maintain the excavation zone assessment for a minimum of 3 years, the Department recommends that the entire closure document be maintained for an indefinite period. Proof of proper closure and verification of site conditions at the time of closure could be very important in the future, particularly if the property is sold.
Subchapter F. Technical Standards for Aboveground Storage Tanks and Facilities
1. General.
Several commentators expressed concern that Subchapter F goes beyond Federal requirements for aboveground storage tanks. Chapter 3 of the act specifically mandates the Department to establish technical standards for aboveground storage tanks and further describes what the Department should include in those standards. The Department believes that Subchapters F and G meet the full intent of the statutory requirements in Chapter 3 of the act in the most flexible manner possible.
Two commentators indicated that some existing Federal regulations are limited in applicability to aboveground storage tanks of 42,000 gallons or greater capacity and question if the Department intends to stay with the current applicability of aboveground storage tanks greater than 21,000 gallons capacity. The act establishes the capacity limits for regulation of aboveground storage tanks in this Commonwealth. With certain exclusions, these include all aboveground storage tanks with greater than 250 gallons capacity. The act also defines small aboveground storage tanks as having a capacity of equal to or less than 21,000 gallons. While relevant to this subchapter, the 21,000 gallon capacity limit is not the cutoff for regulation by the act. Current Federal regulations cover all aboveground storage tanks containing ''oil'' greater than 660 gallons (40 CFR Part 112) (relating to oil pollution prevention)) and certain hazardous substance aboveground storage tanks (29 CFR 1910.106 and 1910.119 (relating to flammable and combustible liquids; and process safety management of highly hazardous chemicals)).
The STAC expressed concern regarding liability of owners and operators of aboveground storage tanks and agreements between these parties. The Department recognizes that arrangements between tank owners and operators for meeting the Department's technical and operational standards exist. The Department may take these agreements into account as well if violations occur and compliance options are considered. It is very important to note, however, that the underlying statutory liability remains, in most cases, with the tank owner as well as the tank operator. The Department does not limit its right to enforce the act and the regulations promulgated under the act against any person defined as a responsible party by the act.
2. Section 245.512. Facility operations and spill response plan.
Several commentators were concerned that the SPR Plan requirements in this section would require the development and submission of a new plan that was not previously required. SPR Plans, as described in Chapter 9 of the act, have been required to be submitted to the Department for over 6 years. In fact, the Department published a technical document in 1993 which provided detailed guidelines on how to develop and implement the Plans. It is not the intention of the Department to require individuals to prepare a separate SPRP if all the required information needed in the SPRP is part of an existing plan developed for another purpose. Submission of the existing plan, an existing plan with any additional addendum needed to satisfy the SPRP requirements, or a new SPRP would be satisfactory to the Department. The Department is concerned that the required information and notifications are addressed in the plan, that the plan is kept current, and that the plan, when implemented, adequately addresses a spill.
One commentator expressed concern that this section did not address updates to SPRPs. The Department agrees and has added language to require the submission of an initial plan and any future updates, which address the requirements described in Chapter 9 of the act and this chapter, to the Department.
3. Section 245.513. Preventive maintenance and housekeeping requirements.
Some commentators wanted the term ''excessive accumulation'' defined so that owners and operators will know what is required by § 245.513(b)(1)(ii). One commentator discussed NFPA 30 and 40 CFR Part 112 and stated that only water which reduces capacity of the emergency containment below 110% capacity or could cause corrosion should be considered ''excessive.''
The Department agrees that water which comes in contact with the tank or piping could cause corrosion concerns and water which decreases the containment area by 10% or more would be excessive. The Department believes that this substantive requirement is adequately addressed in § 245.542(f) and that establishing a corresponding definition is not necessary.
Commentators also suggested that the overall concept of requiring a preventive maintenance program does add value in protecting the environment; however, the proposed rulemaking was too prescriptive and would increase the cost of doing business. The commentators stated that the requirements of this section should be amended to allow more flexibility for each individual aboveground storage tank owner or operator to determine what is needed, per API Standard 653.
The Department believes that a preventive maintenance program not only adds value but is the fundamental first step in protecting the environment. The requirements in § 245.513 are consistent with industry practices such as API Standard 653's routine in-service inspection, which is performed by the owner/operator.
Several commentators suggested that daily visual inspections of all aboveground storage tank facilities are burdensome and unnecessary. It was stated that owners and operators should be allowed to substitute a plan for regular and routine visual inspections of remote facilities in lieu of the daily inspection requirement.
The Department has revised § 245.513(b)(1) to require visual inspections at least every 72 hours. The Department recognizes that remote unmanned facilities may have special needs and believes those needs can be handled through applying for a variance as described in § 245.503.
4. Section 245.516. Recordkeeping requirements.
Some commentators indicated that because corrosion rate measurements are based on out-of-service inspection reports, this section should require maintenance of all out-of-service inspection reports, rather than simply the last out-of-service inspection. The Department agrees and has amended this section to require retention of all out-of-service inspection reports. The Department has also included the retention of applicable manufacturer's documentation for the tank and any ancillary equipment.
Also, the Department has made four clarifications to subsection (b). First, subsection (b)(2) requires that any § 245.503 variance issued for the tank system be kept for the operational life of the tank, rather than maintenance of all site specific Department correspondence and documentation. Second, subsection (b)(3) has been amended to require maintenance only of those permits issued under Subchapter C, rather than all Federal and State permits issued for the facility or storage tank system. Third, subsection (b)(4) has been rewritten to include maintainance of relocation and reconstruction inspection reports. Fourth, subsection (b)(5) has been rewritten to more accurately reflect the requirement that notices of reportable releases must be kept for the operational life of the tank system.
Finally, as a result of changes to § 245.561(3) (see following discussion), the regulations no longer contain a requirement for submission of closure reports to the Department. The requirement to conduct a site assessment still to measure for the presence of a release remains. A new subsection (c)(6) has been added to this section to reflect the fact that results of this assessment need only be maintained for 3 years, although the Department recommends that the entire closure document be maintained for an indefinite period. Proof of proper closure and verification of site conditions at the time of closure could be very important in the future, particularly if the property is sold.
5. Section 245.523. Aboveground storage tanks in underground vaults.
One commentator stated that this section was vague and ambiguous, and seemed to require an underground vault for secondary containment of all aboveground storage tank systems.
The intent of this section is not to require the use of underground vaults for secondary containment for all aboveground storage tanks; rather, the section is intended to outline the requirements that must be met when an owner or operator chooses to install an aboveground storage tank in an underground vault. The Department has added additional language clarifying this intent. In addition, a definition of ''underground vault'' has been added to § 245.1 to provide more clarity to this issue.
6. Section 245.526. Piping for aboveground storage tanks.
Several concerns were raised by commentators about testing, technical standards, and corrosion protection for piping associated with aboveground storage tanks. Most felt the requirements for secondary containment and tightness testing were excessive. As a result of the passage of Act 34, regulated piping associated with an aboveground storage tank is that piping which is within the emergency containment surrounding the aboveground storage tank. Since most underground piping associated with aboveground storage tanks (ASTs) is outside the containment area, the Department has deleted the specific references to underground piping in the final-form regulations. The Department agrees with those commentators who felt that secondary containment with leak detection for regulated piping, which lies within emergency containment, is unnecessary as long as the piping is installed, tested and maintained according to industry standards. In addition, the piping must be inspected in accordance with the standards for in-service and out-of-service inspections in §§ 245.552 and 245.553. Section 245.526 has been revised by deleting requirements for secondary containment for new or replacement piping, and testing and upgrade requirements for existing piping in contact with the soil.
7. Section 245.534. Interior linings and coatings.
One commentator suggested that one of the most important steps in the process of lining the interior of a storage tank is the preparation of the steel for lining (as noted in API Standard 652 and SSPC) and further stated that inspection of the prepared surface should be required before coating is allowed. The Department agrees and has revised this section by adding § 245.534(b)(3) which states that the surface shall be prepared and inspected in accordance with current applicable codes of industry practice.
8. Sections 245.541--245.543. Release prevention and leak detection.
Several commentators expressed concern that the secondary containment permeability requirements in § 245.542(c) and (d) would be difficult to test and verify compliance and therefore suggested that these requirements be eliminated from the regulations. One commentator noted that these standards would require the use of expensive, unreliable and difficult to maintain liners. The commentator stated that the technical standards contained in Subchapter F should make the threat of a release highly unlikely and therefore the permeability requirements were unnecessary. Finally, the commentator stated that retaining these requirements would place Commonwealth aboveground storage tank owners at a competitive disadvantage with aboveground storage tank owners in neighboring states.
The Department believes that minimum permeability requirements for secondary containment are necessary to protect the environment and ensure that a release is captured and directed to a monitoring point without contaminating the environment.
Minimum permeability requirements for emergency containment structures will protect the environment and limit the amount of contaminated debris resulting from a release. However, the Department believes that meeting these minimum permeability requirements for new emergency containment structures may be more feasible than retrofitting existing emergency containment structures to meet a permeability standard. The final-form regulations reflect the Department's sensitivity to the commentators concerns over the cost and reliability of retrofitting existing containment structures. The final-form regulations are amended to require that new emergency containment structures meet a minimum permeability standard upon installation. Existing emergency containment structures are provided a phase-in period for either upgrading the containment structure to meet the permeability standard for new emergency containment structures or having a professional engineer verify that the emergency containment structure coupled with the tank monitoring system and response plan is designed to prevent contamination of the waters of this Commonwealth. The phase-in period is based on when the tank is taken out of service for relocation or replacement of the tank bottom or an out-of-service inspection. The out-of-service inspection interval is based on industry standard API 653 and allows a maximum inspection interval of up to 20 years. By tying the upgrade or verification requirements for existing containment areas with the time the tank is out of service, the Department has provided a flexible phase-in period. In addition, all transfers of regulated substances to a tank within the emergency containment must be monitored for the duration of the transfer. For additional clarity, the Department has added a cross reference to § 245.553(d) which describes the out-of-service inspection frequency.
One commentator stated that the permeability requirements for emergency containment in § 245.542(d) are unnecessary for product loading areas and should be deleted. The Department agrees and has deleted the reference to loading areas to comply with recent amendments contained in Act 34. Only loading areas located within the emergency containment area will be required to meet the standards in this rulemaking.
One commentator suggested that the Department clarify that the permeability upgrades for existing facilities in § 245.542(d) are to be phased in consistent with the out-of-service inspection frequency. The Department agrees and has added a cross-reference to § 245.553(d) which describes the out-of-service inspection frequencies.
Several commentators suggested that § 245.542 should be amended to ensure consistency with Fire Marshal and EPA requirements by deleting rainwater removal requirements, 72-hour release holding time and the 110 percent containment capacity requirement. The Department believes that the 110% capacity requirement in subsection 245.542(e) is not significantly different from other requirements which call for a capacity of 100 percent capacity plus freeboard (see, for example, 40 CFR 112.7(e)(2)(ii) (relating to guidelines for the preparation and implementation of a Spill Prevention Control and Countermeasure Plan)). The margin of safety provided by the additional 10% is needed primarily to compensate for rainwater and is a commonly used industry practice. It is critical to remove rainwater when accumulations approach 10% of the capacity.
Several commentators suggested that § 245.543(b) is unnecessary, especially given the daily visual inspections and monthly preventative maintenance requirements in this subchapter. One commentator suggested that if this provision is retained, add ''Monthly visual inspections shall be an acceptable method of leak detection for this type of installation.'' Another commentator suggested that retrofitting thousands of existing aboveground storage tanks with electronic monitoring devices would be very expensive and redundant. The Department agrees and has revised this section to delete the monthly leak detection requirements for tanks which do not have secondary containment.
Some commentators stated that they wanted the Department to clarify that visual leak monitoring in § 245.543 is not required for aboveground storage tanks directly installed on top of secondary containment. The Department believes that monitoring by some means is required. Secondary containment captures and directs any potential release to an area which can be monitored, and monitoring is generally accomplished by visual means. However, monitoring could be accomplished by other means, such as mechanical or electronic devices.
9. Sections 245.551--245.554. Aboveground storage tank inspections.
One commentator suggested as a matter of clarity, that the Department delete the phrase ''. . . by the Department'' in § 245.551(a) and replace it with the phrase ''. . . in this subchapter.'' The Department agrees and has amended this final rulemaking accordingly.
Many commentators stated that the out-of-service inspection requirements in this section were inconsistent with and more stringent than the act after amendments were made by Act 34.
The Department agrees and has revised § 245.553 as well as all other applicable sections of this rulemaking to reflect the changes to the act resulting from the passage of Act 34. As noted in the Preamble to the proposed rulemaking (Editor's Note, see 26 Pa.B. 3083--3084), due to timing issues the proposed rulemaking did not reflect the changes made to the act by Act 34.
One commentator stated that inspection reports, as contemplated by § 245.553, were sometimes voluminous in nature, yet the proposed subsection (g) required submission of the completed inspection report to the Department. The commentator went on to say that the Department should consider requiring submission of the report only if necessary, or submission of something less than the complete inspection report. The Department agrees that submission of the entire out-of-service inspection report may not be necessary. The Department does require inspectors to submit the results of their inspection to the Department. Due to the voluminous nature of these reports, the Department will develop an inspection summary report form for use by the inspector.
10. Sections 245.561 and 245.562. Closure and removal from service requirements.
Two commentators noted that the term ''change-in-service,'' although referenced in § 245.561, was not defined and therefore the section was vague and ambiguous as to the situations it applied to. The Department agrees and has added a definition for the term in § 245.1
Several commentators suggested that § 245.561(3) should be deleted. They stated that since existing regulations require reporting of confirmed releases from regulated tanks and closures must also be carried out by a certified remover, the Department would be notified by that individual if any problems were observed. Another commentator noted that the Department should provide better justification for the requirements of this section and clarify the requirements for site assessments and for what closure reports should contain.
The Department believes that submission of site assessment and closure reports should only be required when evidence of a release is present and has revised this section to reflect this position.
Subchapter G. Simplified Program for Small Aboveground Storage Tanks
1. Section 245.604. Referenced organizations.
The National Fire Protection Association (NFPA) has been added as a Nationally recognized association.
2. Section 245.612. Performance and design standards.
Several concerns were raised by commentators about testing, technical standards and corrosion protection for piping associated with aboveground storage tanks. Most felt the requirements for secondary containment and tightness testing were excessive. As a result of the passage of Act 34, regulated piping associated with an aboveground storage tank is that piping which is within the emergency containment surrounding the aboveground storage tank. Since the regulated piping lies within emergency containment, the Department agrees with those commentators who feel secondary containment with leak detection for this piping is unnecessary as long as the piping is installed, tested and maintained according to industry standards. Section 245.612(c) has been revised by deleting requirements for secondary containment for new or replacement piping, and testing and upgrade requirements for existing piping in contact with the soil.
3. Section 245.613. Monitoring standards.
Two commentators suggested that the monthly leak detection monitoring requirement in subsection (b) was redundant, given the requirement for secondary containment contained in § 245.612. They suggested that, if the aboveground storage tank owner installs an active monitoring system and meets the requirements of ''emergency containment,'' a deferral from the requirements of this subsection should be provided. The Department does not agree that the monthly check is redundant. Industry practices recommend monthly inspections, which include the observation of containment areas. An active monitoring system that is checked monthly for operational functions meets the requirement in this section. Therefore, the proposed § 245.613 has been retained in the final rulemaking.
4. Section 245.614. Requirements for closure.
Commentators stated that subsection (d)(1) should be altered to allow for temporary closure for up to 10 years, rather than the 3 year limit in the proposed rulemaking.
The Department agrees that a change is appropriate but does not believe that temporary closure should be extended to 10 years. The Department has revised this section to reflect an allowance for up to 5 years of temporary closure, which is consistent with provisions contained in Subchapter F for large aboveground tanks.
5. Section 245.615. Recordkeeping requirements.
Two commentators expressed a concern that the original design and installation specifications were not available for all existing aboveground storage tanks and suggested that the Department clarify its intent that the recordkeeping requirement applies only to new aboveground storage tanks installed after October 1, 1997.
The Department's intent is to require design and specification records for all new tanks installed after October 1, 1997. Records which are currently available for tanks installed prior to October 1, 1997 must also be maintained. Obviously, records which are no longer available for previously installed tanks cannot be maintained.
Because of the importance of third-party inspection reports, the Department has changed the requirement to maintain inspection reports in subsection (b)(6) from only the last inspection report to all third-party inspection reports.
Finally, the Department has clarified subsection (b)(3) to require maintenance only of those permits issued under Subchapter C, rather than all Federal and State permits issued for the facility or storage tank system.
6. Section 245.616. Inspection requirements.
Several commentators stated that the Department should change the requirement for in-service inspections for aboveground storage tanks storing hazardous substances from 1,100 gallons to 5,000 gallons. They further stated that if this requirement is retained, the Department should justify the additional burden based on the relative risks of different products stored in small ASTs.
The Department has amended § 245.616(c) to require in-service inspections of tanks with a capacity greater than 1,100 gallons only when the tank contains a highly hazardous substance. All small aboveground storage tanks with greater than 5,000 gallons capacity containing a regulated substance shall also be inspected. Small aboveground storage tanks that do not fall into either category need not have an operations inspection.
Two commentators expressed concern that all regulated aboveground storage tanks greater than 1,100 gallons should be required to have in-service inspections, regardless of the product stored. One of the commentators expressed knowledge of four failures of the small aboveground storage tanks in the last year.
The Department believes that its requirements for secondary and emergency containment adequately protect the environment and public health without the additional expense of in-service inspections for all hazardous substance aboveground storage tanks of 5,000 gallons or less capacity. Because of the higher risk associated with tanks storing highly hazardous substances, the Department is requiring storage tanks in excess of 1,100 gallons holding the substances to have in-service inspections.
STAC expressed concern that the phase-in periods for inspections of existing small aboveground storage tanks were too short. The Department agrees and has changed the phase-in periods in § 245.616(c)(2) and (3) from 5 years and 3 years to 6 years and 5 years, respectively.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations. Because four new separate subchapters, along with amendments to two existing subchapters, are included in this final rulemaking package, they will be addressed individually in each category.
Benefits Subchapter A: By adopting the Federal Lender Liability rule by reference, the Department will have regulations in place that provide clear protection to lending institutions who hold a financial interest in underground storage tanks. This rule clearly defines what represents a financial versus control interest for lending institutions. It compliments Act 3 of 1995 and works in concert with the goals of Act 2 of 1995. Through this rule, lending institutions should be more willing to take possession of forfeited underground storage tank sites, loan money for upgrades and invest in the development of new sites.
Subchapter C: Given the size of the regulated universe of underground and aboveground tanks in this Commonwealth, a ''traditional'' permitting program for the operation or installation of tanks could never succeed, as processing so many forms in a timely manner would be extremely cumbersome. Therefore, this subchapter focuses only on those storage tanks determined by the General Assembly to be of the most concern from a permitting perspective, the installation of aboveground storage tanks with greater than 21,000 gallons capacity at a new or existing facility. These storage tanks can be quite large, reaching millions of gallons of capacity. If designed correctly and placed in a safe location, they can also be quite safe. The focus of this subchapter is to ensure that these tanks are sited and constructed properly.
Subchapter E: This subchapter primarily codifies existing regulations, so new benefits as a result will be limited. The major benefit of taking this action is that all regulations for underground storage tanks will be contained in one place, allowing owners and operators to understand what is required without having to turn to 40 CFR Part 280.
There are smaller benefits to this part of the package as well. With the promulgation of SIR regulations, owners and operators who use these methods to meet release detection requirements will be assured that they are receiving valid results. Underground tank owners/operators are also put on notice that use of a coax vapor recovery system will nullify overfill protection provided by flow vent valves, thereby reducing money spent on equipment that will not meet the established performance standards. Finally, several issues that were left unclear by 40 CFR Part 280 (for example, when a removed underground storage tank can be reused) are answered by this subchapter, eliminating confusion.
Subchapters F and G: With the promulgation of these subchapters, the Commonwealth will finally have a comprehensive regulatory program for aboveground storage tanks. These subchapters are designed to reduce the likelihood of the Commonwealth seeing another release of the magnitude that occurred in Ashland Oil's 1989 tank collapse. By relying on industry standards as the basis for performance standards in the various areas of aboveground storage tank installation, operation and closure, these regulations reward those who have been following the industry-set rules and requires persons who are operating below those standards to catch up. Aboveground storage tanks generally do not pose the same release hazards as underground tanks (as one can see most releases rather readily) but do represent a greater catastrophic hazard. These subchapters represent an attempt to eliminate or reduce both the slow release hazard (due, for example, to a lack of corrosion prevention) as well as the catastrophic hazards.
Compliance Costs Subchapter C: In general, the Department has attempted to minimize costs in the permitting area by requiring little or no new information for operating permits-by-rule or general permits. Costs will be incurred with the site-specific installation permits required by Chapter 11 of the act. The Department has attempted to limit its requirements for the information that must be included in a permit application. The information requested under this rulemaking is either readily available, or is the sort of information that normally should be compiled when a large construction project is being proposed.
Although this final rulemaking did not retain a specific section of permit fees, the requirement to submit permit applications will trigger the permit fee requirements in sections 304 and 504 of the act. Based on averages for installation of new storage tank systems over the past 6 years in this Commonwealth, the Department estimate that approximately $100,000 of permit fees per year will be assessed to the regulated community.
Subchapter E: The Department does not anticipate any new compliance costs associated with this subchapter, as almost all of the requirements already exist in current law. The Department does establish a schedule for the inspection of underground storage tank facilities by certified inspectors. At the present time, the Department is requiring these inspections for a limited segment of the underground storage tank universe. Because tank owners/operators must pay for these third-party inspections, the establishment of a schedule may lead to these costs being incurred sooner than they would be without a formal schedule. The periodic inspection requirement itself is mandated by the act, however, and is not a new obligation.
Vendors of SIR test methods must have their method's performance claims verified by an independent third-party using leak rates that are unknown to the tester. While this will involve some expense for the vendors, the underground storage tank owner/operator who is relying on the method for release detection will have the assur-ance that the SIR system they have chosen will meet the regulatory requirements.
Finally, this rulemaking requires owners/operators who close only the piping part of an underground storage tank system to prepare a closure report describing that action. Because the closure report includes a site assessment, this will involve soil sampling and corrective action if contamination above action levels is discovered. Although sampling in piping runs will be fairly limited, it will still involve some additional expense. It is difficult to say exactly how much more this will cost because the sampling protocol for closure is fairly site-specific.
Subchapters F and G: These two subchapters represent the creation of a comprehensive program to regulate aboveground storage of regulated substances. For the most part, however, an owner/operator of an aboveground storage tank who has been following the State Fire Marshal's requirements (37 Pa. Code Part I, Subpart B (relating to flammable and combustible liquids)) and recommended industry codes of practice should not notice any overwhelming changes as a result of this rulemaking. In general, the Department tried to follow industry standards when establishing these aboveground storage tank standards of performance.
Costs to the Commonwealth: The two new programs established by this rulemaking package are permitting and aboveground tank regulations. Generally, the addition of new responsibilities would lead to increased costs to the Commonwealth for running the program. Many of the requirements in the aboveground tank regulations have phase-in periods measured in years, so the workload should not be overwhelming right at the start. It is believed, therefore, that it will be possible to shift resources and time currently being spent in the underground program to focus on implementation of the aboveground regulations. Finally, the Department does not anticipate new resource expenditures as a result of Subchapter E.
Compliance Assistance Plan As of this time, there is only a small amount of public financial assistance available to owners and operators of storage tanks. The Small Business First Fund, managed by the Department of Community and Economic Development, does have low-interest loans available. Tank owners and operators may apply for these loans to bring their facilities into compliance with the requirements of Chapter 245. By addressing underground storage tank lender liability in this rulemaking, the Department hopes that more private funding sources will develop to assist owners and operators in meeting the costs of compliance.
The Department currently operates a fairly extensive program of outreach activities designed to assist owners and operators of storage tanks as well as certified individuals. This program includes the Storage Tank Monitor, a quarterly newsletter; a series of detailed factsheets that focus on single issues in the storage tank program (for example, release reporting); seminars featuring a Nationally-recognized storage tank technology expert (to date, leak detection training and closure training); and training sessions presented by regional and central office training teams on a variety of issues. It also includes guidance documents on preparing SPR Plans and correct closure procedures. The Department also presents general program seminars jointly with the regulated community and consults with the STAC on regulation and policy development.
The Department expects these efforts to continue and be intensified, especially as the EPA's 1998 underground storage tank upgrade deadline approaches. In addition, new efforts will be made to educate the regulated community about those requirements that will appear in Commonwealth regulations for the first time. Aboveground storage tank requirements will be covered in much greater detail in outreach activities after these amendments become effective. As noted in Section D of this Preamble, technical guidance manuals will be prepared for both the underground and aboveground storage tank programs outlining what industry codes of practice may be followed to meet the performance standards contained in these amendments.
Paperwork Requirements Subchapter C: By covering the operation of storage tanks by either permits-by-rule or general permits, the Department has attempted to limit the paperwork required under this subchapter. When application for a site-specific installation permit is required by Chapter 11 of the act, however, a full permit application will need to be submitted. The information in the application is limited to that which is necessary for the Department to make an informed decision on the application. In addition, the Department believes that much of the information required by this subchapter will be readily available to owners/operators. Finally, when coordination with other State or Federal agencies is necessary, the Department will take the lead in ensuring that the information is available and coordinating the necessary reviews.
Subchapter E: Because the requirements of Subchapter E are already in effect in this Commonwealth under § 245.2, few new paperwork requirements are contained in this subchapter. In fact, § 245.455 will actually reduce current reporting requirements, as closure reports for underground storage tanks will no longer have to be submitted to the Department (although closure reports still must be completed).
One new paperwork requirement is found in § 245.452(c), which requires a closure report to be completed when only the piping run of an underground storage tank system is closed. Because of persistent problems with leaking piping, however, the Department believes that assessment of the piping areas when piping is closed is appropriate.
Subchapter F: Because Subchapter F is being added as a new comprehensive regulatory program for aboveground storage tanks, almost all of the paperwork requirements are new. Currently, the only forms required to be filed in relation to aboveground storage tanks are storage tank registration forms and tank handling activity and inspection report forms. The Department has attempted to minimize the need for new forms and limit the use of new forms to those areas where forms and recordkeeping are absolutely necessary. Section 245.516 (relating to recordkeeping requirements) outlines the recordkeeping and reporting requirements under this subchapter. Paperwork not required under the existing aboveground storage tank program includes: leak detection records, cathodic protection monitoring results, monthly maintenance inspection records and closure reports. All of this information is important in sound tank management and is consistent with Nationally recognized standards.
Subchapter G: Subchapter G represents the addition of a simplified yet comprehensive regulatory program for small aboveground storage tanks. As a result, there will be new paperwork required from owners/operators of these tanks. Because this subchapter represents a simplified program, the Department has attempted to reduce paperwork on these aboveground storage tanks to only those documents that are essential.
Section 245.615 (relating to recordkeeping requirements) outlines the recordkeeping and reporting requirements for this subchapter. Generally, the Department has tried to limit the paperwork required to those records that should otherwise be kept as a sound business practice. An example would be the original tank and system installation record and design specifications. In addition, the Department is not requiring the submission of these records to the Department in most instances. The owner/operator need only maintain the records at the facility site. Finally, closure reports are not required for this class of storage tanks. Only an amended registration form need be submitted.
G. Pollution Prevention
Generally speaking, the term ''pollution prevention'' refers to the minimization of the wastes generated in a commercial process by altering that process. The storage tank program has a slightly different approach. The goal is to keep substances that are harmful to the public and the environment from being released at all. The programs set out in this rulemaking package are designed to halt the release and spread of regulated substances from storage tanks located in this Commonwealth. These regulations create a cradle-to-grave program with the goal of making sure that the storage tank is installed, maintained, operated, closed and removed in a manner that will minimize the likelihood of a release. If a release does occur, these amendments and the regulations that currently exist in Chapter 245 are designed to detect the release quickly, contain it if possible, and make sure that corrective action is carried out expeditiously, thus minimizing exposure to the public and the environment.
In this final rulemaking, the Department is attempting to reach these goals through a combination of performance standards, with built-in flexibility (including the possibility of a variance) as to how the regulated community achieves the goals, and reliance on industry standards. By taking this approach, the Department hopes to reduce pollution, protect human health and the environment, lower the number of corrective actions that must eventually be commenced, decrease the amounts of contaminated soil and groundwater that must be dealt with and do so in a manner that is flexible and reasonable.
H. Sunset Review
Thess regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 11, 1996, the Board submitted a copy of the notice of proposed rulemaking to IRRC and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for their review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Board has considered the comments received from IRRC and the public. The Committees did not submit comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committee on August 25, 1997. IRRC met on September 4, 1997, and approved the regulation in accordance with section 5(c) of the Regulatory Review Act.
J. Findings
The Board finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published at 26 Pa.B. 3073 (June 29, 1996).
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 245, are amended by amending §§ 245.1, 245.2 and 245.31; and by adding §§ 245.201--245.205, 245.211, 245.212, 245.221, 245.222, 245.231--245.237, 245.401--245.405, 245.411, 245.421--245.425, 245.431--245.435, 245.441--245.446, 245.451--245.455, 245.501--245.504, 245.511--245.516, 245.521--245.526, 245.531--245.534, 245.541--245.543, 245.551--245.554, 245.561, 245.562, 245.601--245.604 and 245.611--245.616 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately.
JAMES M. SEIF,
Chairperson(Editor's Note: The amendment of § 245.31 was not included in the proposal at 26 Pa.B. 3073. The proposal to add §§ 245.206 and 245.207, included in the proposal at 26 Pa.B. 3073, has been withdrawn by the Board.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 4879 (September 20, 1997).)
Fiscal Note: Fiscal Note 7-296 remains valid for the final adoption of the subject regulations.
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