RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 245]
Administration of the Storage Tank and Spill Prevention Program
[26 Pa.B. 4735] The Environmental Quality Board (Board) by this order amends Chapter 245 (relating to administration of the storage tank and spill prevention program). The amendments alter several definitions, add several definitions and alter portions of the certification program established for installers and inspectors of aboveground and underground storage tanks as required by the Storage Tank and Spill Prevention Act (act) (35 P. S. §§ 6021.101--6021.2104).
This order was adopted by the Board at its meeting of July 16, 1996.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Karl K. Sheaffer, Chief, Division of Storage Tanks, P.O. Box 8762, Rachel Carson State Office Building, Harrisburg, PA 17105-8762, telephone: (717) 772-5800; or Kurt E. Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, telephone: (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This rulemaking is available electronically through the Department of Environmental Protection (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This final rulemaking is being made under the authority of section 106 of the act (35 P. S. § 6021.106), which authorizes the Board to adopt rules and regulations of the Department governing aboveground and underground storage tanks to accomplish the purposes and carry out the provisions of the act; section 107(d) of the act (35 P. S. § 6021.107(d)), which authorizes the Department to establish a certification program for installers and inspectors of storage tanks and storage tank facilities; section 5(b)(1) of The Clean Streams Law (35 P. S. § 691.5(b)(1)), which authorizes the Department to formulate, adopt and promulgate rules and regulations that are necessary to implement The Clean Streams Law; and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the Board to formulate, adopt and promulgate rules and regulations as may be determined by the Board to be for the proper performance of the work of the Department.
D. Background and Summary
Section 107(d) of the act specifically authorizes the Department to establish regulations governing certification and licensing programs for installers and inspectors of storage tanks and storage tank facilities. The Board established regulations in Chapter 245, Subchapters A and B (relating to general provisions; and certification program for installers and inspectors of storage tanks and storage tank facilities), concerning certification and licensing of installers and inspectors. These existing regulations were published as final at 21 Pa.B. 4345 (September 21, 1991).
A wide range of issues and concerns have developed since Chapter 245 was originally adopted in 1991. Many of these issues and concerns have been technically complex and relate to the specific work performed by certified storage tank installers and inspectors.
To assist the Department in considering the comments received on the proposed rulemaking and developing this final rulemaking, an informal technical advisory committee (TAC) was formed. This TAC was made up of storage tank industry experts, several of whom participated in the initial development of Chapter 245. TAC assisted the Department in resolving a number of issues raised during the public comment period.
The Department worked closely with the Storage Tank Advisory Committee (STAC) during development of both the proposed and final rulemakings. STAC, which was established by section 105 of the act (35 P. S. § 6021.105), consists of persons representing a cross section of organizations having a direct interest in the regulation of storage tanks in this Commonwealth. Under section 105 of the act, STAC has been given the opportunity to review and comment on this final rulemaking. At its May 8-9, 1996, meeting, STAC reviewed and discussed these amendments. At that meeting, STAC prepared a written report approving the proposed amendments which were presented to the Board. A listing of members of STAC can be obtained from Karl Sheaffer, whose address appears in Section B of this Preamble.
In addition, the Agricultural Advisory Board submitted a letter to the Department on May 16, 1996, requesting that Chapter 245 be amended to place a 1-year moratorium on the requirement that a certified installer be used to remove regulated underground storage tanks located on farms. Because the requirement to employ a certified installer to remove regulated underground storage tanks is a mandatory command of section 501(c)(2) of the act (35 P. S. § 6021.502(c)(2)), the Department cannot completely remove this requirement through an amendment to Chapter 245.
This final rulemaking will amend the current regulations in Chapter 245, Subchapter A, dealing with general provisions and Subchapter B, dealing with the certification program for installers and inspectors of storage tanks and storage tank facilities. The changes represent corrections and additions that are necessary to improve the existing regulations.
The amendments to Subchapter A include the addition of tank tightness testing requirements, a clarification that identifies what Federal underground storage tank regulations have been adopted by reference and changes to definitions.
The amendments to Subchapter B include consolidation of several certification categories, elimination of certification categories that are not needed and changes to the requirements for certification approval. In addition, changes are made to provisions relating to the suspension and revocation of certification, the renewal and amendment of certification, the examination requirements and standards of performance. A brief description of this rulemaking follows:
Subchapter A. General Provisions
1. Section 245.1. Definitions.
This rulemaking amends § 245.1 by adding definitions, and by modifying or clarifying certain definitions that apply to terms used in Subchapters A and B; and by deleting five definitions that are no longer needed. The terms added are: ''actively involved,'' ''Clean Streams Law,'' ''motor oil,'' ''Solid Waste Management Act'' and ''tightness testing activities.'' The modified or clarified definitions are: ''aboveground nonmetallic storage tank,'' ''aboveground storage tank,'' ''actively involved,'' ''certified company,'' ''certified inspector,'' ''environmental audit,'' ''inspection activities,'' ''removal,'' ''removal from service,'' ''storage tank facility,'' ''underground field constructed storage tank,'' ''underground manufactured storage tank'' and ''underground storage tank.''
The definition for the term ''heating oil for consumptive use'' is deleted so that the Commonwealth's regulation of these storage tanks will exactly match that of the Federal government. The definition for the term ''commercial heating oil tank'' is deleted to match the change made to the act by the act of June 26, 1995 (P. L. 79, No. 16) (Act 16). The definitions for the terms ''aboveground field constructed nonmetallic storage tank,'' ''underground field constructed nonmetallic storage tank'' and ''underground manufactured nonmetallic storage tank'' are deleted because they were only used in certification categories that are being deleted by this rulemaking.
2. Section 245.2. General.
This section incorporates by reference the Federal regulations contained in 40 CFR Part 280 (relating to technical standards and corrective action requirements for owners and operators of underground storage tanks (UST)) governing technical standards and corrective action requirements for underground storage tank systems. The Board now believes the Federally excluded and deferred storage tanks pose very minimal potential risks to the environment or this Commonwealth and that these tanks should be excluded from Commonwealth's storage tank regulations. The amendments adopt the Federal position excluding and deferring these classes of tanks from regulation. Additionally, the amendments clarify that Subparts E and F are no longer adopted subparts of 40 CFR Part 280. These subparts deal with release reporting, release responses and corrective actions. These topics are now covered by Chapter 245, Subchapter D, which was adopted by the Board at 23 Pa.B. 4033 (August 21, 1993).
3. Section 245.21. Tank handling and inspection requirements
Subsection (a) clarifies the requirement that storage tank owners and operators shall use Department certified installers to conduct tank handling activities, and deletes any mention of certified inspectors. In addition, for aboveground nonmetallic storage tanks, the tank manufacturer may perform modifications to the tank without Department certification.
Requirements for the use of a certified inspector to inspect tank handling activities are moved to subsection (b). Subsection (b) recognizes that UL labeled manufactured storage tanks are inspected and tested at the factory when they are produced and that these tanks need not be inspected again when they are installed by a certified installer. Therefore, subsection (b) requires only that those tank handling activities which are conducted on field constructed storage tanks or large aboveground storage tanks shall be inspected by a certified inspector.
Finally, the amendment to subsection (d) clarifies when an owner or operator shall have a storage tank facility inspection done.
4. Section 245.31. Underground storage tank tightness testing requirements.
Section 245.31 establishes when tightness testing shall be conducted, when a certified installer is required to perform tightness testing on underground storage tank systems and what conditions shall be met. The Department and regulated storage tank owners have experienced many problems associated with obtaining valid and accurate tightness testing results required to comply with the Federal standards adopted by § 245.2 (relating to general).
The Board believes this section is necessary to assist owners in obtaining valid tightness testing results and to detect leaks or releases in underground storage tank systems.
Subchapter B. Certification Program for Installers and Inspectors of Storage Tanks and Storage Tank Facilities.
1. Section 245.102. Requirement for certification.
Subsection (a) provides requirements for certification when conducting tightness testing. The Board believes that tightness testing should be conducted by a certified installer who can be held accountable for established standards of performance.
Subsection (c) removes the specific passing grade requirements for periodic training. The regulations now provide that the standards for successful completion of each training course will be determined by the Department through review and approval of each individual course under § 245.141(relating to training approval), rather than measuring successful completion of all training by requiring a specific passing grade. This change should allow installers and inspectors to obtain training through a number of industry sources that provide excellent training and use training measurement methods other than a specific 90% passing score. It is anticipated that more professional trainers will apply for training course approval when this proposal becomes effective, thus increasing the available training base.
2. Section 245.103. Phase-in from interim certification.
Subsection (c) formerly provided that failure to pass certification examinations by September 21, 1994, resulted in revocation of temporary certification. The amendment corrects the improper use of the term ''revocation'' and provides that expiration of temporary certification is the result of failure to pass the examinations by the established date.
Subsection (d) allows an installer or inspector to continue working until the date of expiration of the individual's permanent certification when the Board amends or deletes the categories in which the individual is certified.
3. Section 245.105. Certification examinations.
The amendments revise the certification minimum passing score to 80% for the administrative portion of the certification examination and eliminate a specific passing score for training programs. The Board believes that administrative procedures are less critical than technical requirements and, therefore, the certification examinations should require a lower minimum passing score for the administrative section of the examination.
The Board further believes that the standards for successful completion of a training program should be evaluated and approved based on individual course content and exams that accurately measure the training, rather than requiring a specific passing grade by which all training must be measured. This issue is addressed in more detail in the comments provided concerning § 245.102 (relating to requirement for certification). Therefore, subsection (e) changes the passing grade requirement for successful completion of training to coincide with the changes to § 245.102(c), for the reasons set out in the discussion of that subsection.
4. Section 245.108. Suspension of certification.
This section currently provides for suspension of certification for a violation of the act, for incompetency, for failure to successfully complete required training and for failure to comply with several other requirements in Chapter 245.
This section will now require compliance with other key laws that have provisions that frequently affect the storage tank industry and tank handling practices. The Board has determined that The Clean Streams Law (35 P. S. §§ 691.1--691.1101) and the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003) are two key laws that do affect the storage tank industry and that are sometimes violated by installers when working with and on storage tank systems. These laws have provisions for enforcement that have been applied against installers.
Subsection (a)(9) provides for suspension of certification for violation of The Clean Streams Law and for violation of the Solid Waste Management Act. Suspension is limited to those instances when the certified individual is conducting activities related to storage tank system installation, modification, removal or inspection. The violation must additionally be one that causes pollution, a threat of pollution or harm to the public health, safety or welfare.
The amendment to subsection (c) changes the passing grade requirement for successful completion of training to coincide with the proposal at § 245.102(c), for the reasons set out in the discussion of that section.
Subsection (d) requires that an installer or inspector surrender his certification certificate and identification card to the Department when notified that his certification is suspended.
5. Section 245.109. Revocation of certification.
Subsection (c) requires that an installer or inspector surrender his certification certificate and identification card to the Department when notified that his certification is revoked.
6. Section 245.110. Certification of installers.
This section currently provides for specialization in 24 individual certification categories for installation, modification, removal and tightness testing for various aboveground and underground storage tanks and associated systems. Several of the underground categories are for obsolete field constructed storage tank systems and, with the exception of a few individuals certified to remove these systems, most of these categories remain vacant.
The number of categories was adequate to provide for specialization and flexibility when the certification program was initially developed. Since that time, the number of categories has proven to be excessive, complex and unnecessarily burdensome for both the Department and the regulated community. The Department looked at the work being done by the certified installers in detail and met with industry experts and TACs to consolidate categories where practicable and to eliminate categories that are not needed.
The final rulemaking consolidates the number of installer certifications to 11 categories. Underground storage tank installation and modification provides for a single master installer category (UMX). Due to the specific knowledge required for different aboveground systems, the aboveground storage tank certification categories retain more of their previous specialization with the following categories: aboveground manufactured metallic storage tank installation and modification (AMMX); aboveground nonmetallic storage tank installation and modification (AMNX); aboveground field constructed metallic storage tank installation, modification and removal (AFMX); aboveground mechanical installation, modification and removal (AMEX); and aboveground civil installation and modification (ACVL).
Three storage tank removal categories are retained as follows: underground removal (UMR), aboveground manufactured removal (AMR) and aboveground field constructed removal (AFR). Tank lining (TL) remains a specialization category and tightness testing (UTT) is retained for underground storage tank systems.
7. Section 245.111. Certified installer experience and qualifications.
This rulemaking removes the requirements for the 13 categories proposed to be deleted. These amendments also establish a requirement for manufacturer's equipment specific training for tightness testing qualification and provide that Department UTT certification is only valid for the specific method of testing for which equipment manufacturer's certification is maintained.
For the remaining categories, this rulemaking reduces the total experience time necessary to qualify for certification by 1 year. The Department has found that the more crucial element in demonstrating qualifying experience is the number of activities completed and not the total time spent working in this area. In addition, subsection (g) will credit 6 months of experience to an applicant who successfully completes a Department-approved training course covering the category that the individual wishes to become certified for.
The amendments also provide that an AMNX aboveground nonmetallic storage tank installer and an AFMX aboveground field constructed metallic storage tank installer may qualify by having completed installation or major modification activities. The Board believes that adding the stipulation that the modifications be only major modifications, coupled with the certification examination requirement, will ensure that applicants for these categories will be well qualified. This change was recommended by TAC to compensate for the increase in modification and decline in new construction in the aboveground field constructed storage tanks and to aid in qualifying nonmetallic technicians who specialize in nonmetallic tank modification procedures.
The amendments also contain provisions that will enable certified individuals in the aboveground field constructed storage tank installer and remover categories to qualify for the aboveground manufactured storage tank installer and remover categories as recommended by TAC.
Subsection (d) is amended in the same manner as § 245.102 with regards to standards for successful completion of the training course, for the reasons set out in the discussion of that section.
8. Sections 245.112 and 245.113. Certification of inspectors; certified installer experience and qualification.
This rulemaking reduces the number of inspector categories to three by eliminating the underground field constructed (IUF) category, which is not needed.
This rulemaking deletes the IUF category, and provides the aboveground manufactured storage tank inspector (IAM) a means to qualify for the underground inspector (IUM) category. They also provide that service inspections of aboveground storage tank systems can qualify an individual for both aboveground manufactured storage tank (IAM) or aboveground field constructed storage tank (IAF) inspector certification with any combination of 20 installations, major modifications or service inspections. The Board believes these changes will help to qualify additional inspectors while maintaining highly competent inspectors in this Commonwealth.
Finally, the Board believes that certain industry certifications should be required when individuals are conducting integrity inspections on aboveground storage tanks. This rulemaking adds subsection (f) which requires that inspectors conducting integrity inspections on aboveground field constructed metallic storage tanks possess API Standard 653 certification in addition to Department certification.
9. Section 245.114. Renewal and amendment of certification.
The amendments provide that expiration of amended permanent certification will correlate with the dates that certification exams were administered. Because passing a single technical examination module might qualify an individual for several different installation categories, in subsection (a) the amendments provide for issuance of amended certification for a period that coincides with the date of other certification categories for which the same exam was taken.
Under subsection (a)(2), the Department will have the option to establish and require completion of training programs; however, the training programs will not be mandatory for renewal of certification at this time. Additionally, subsection (a)(2) is amended in the same manner as § 245.102(c) with regards to standards for successful completion of the training course, for the reasons set out in the discussion of that section.
Subsection (a)(3) of this section provides that an individual must remain active in each certification category or the individual must retake the certification examination for categories in which active involvement is not maintained. Subsection (b)(4) requires a certified installer or certified inspector to notify the Department and seek amendment of the certification from the Department whenever the Board amends certification categories or qualification requirements and establishes a phase-in period for the new requirements.
10. 245.123. Suspension of company certification.
As discussed in this Preamble in relation to § 245.108 (relating to suspension of certification), certain violations of The Clean Streams Law or violations of the Solid Waste Management Act should also be cause for suspension of certification. Additionally, the Board is concerned that some companies have withheld certification documents and failed to forward Department correspondence to certified employes.
Subsection (a)(4) of this section provides for suspension of company certification for violation of The Clean Streams Law or for violation of the Solid Waste Management Act. Suspension is limited to those instances when the certified company or a certified individual employed by that company is conducting activities related to storage tank system installation, modification, removal or inspection. The violation must additionally be one that causes pollution, a threat of pollution or harm to the public health, safety or welfare. Finally, under subsection (a)(5), company certification may be suspended for withholding individual correspondence or certification documents issued by the Department.
11. Section 245.132. Standards of performance.
This section provides for several standards of performance that installers, inspectors and certified companies shall adhere to. The amendments add several new requirements or clarify several existing requirements.
Subsection (a)(3) of this section provides for maintaining tank handling and inspection activities records for a minimum of 10 years. Time frames and clarification of when and how installers and inspectors shall report confirmed or suspected releases and contamination are contained in subsection (a)(4), along with clarification of which Department office the report shall be given. Finally, requirements to adhere to equipment manufacturer's instructions, industry standards and codes of practice when performing certified activities are added in subsection (a)(8).
E. Summary of Comments and Responses on the Proposed Rulemaking
The Department received comments from 20 individuals during the 60-day public comment period that followed publication of the proposed rulemaking at 25 Pa.B. 5053 (November 18, 1995). The Independent Regulatory Review Commission (IRRC) submitted written comments to the Department on February 16, 1996. Additionally, STAC reviewed the proposed rulemaking and submitted a written report to the Board. As noted in Section D of this Preamble, the Agricultural Advisory Board submitted a letter to the Department on May 16, 1996, requesting further changes to Chapter 245. A copy of that letter was submitted to the Board.
Several sections of the proposed rulemaking are modified in the final rulemaking based upon these comments. A list of commentators, a detailed summary of their comments and the Department's responses are available from the contact persons listed in Section B of this Preamble. In addition, between the time the Board approved the proposed amendments and their publication, Act 16 became effective. A number of modifications to Chapter 245 and the proposed amendments have been made based upon Act 16. A list of the modified sections and a summary of the significant comments are provided as follows:
1. Section 245.1.
Several commentators noted that some of the terms defined in the current Chapter 245, Subchapter A and in the proposed rulemaking conflicted with the terms in the act as amended by Act 16. The Department agrees with the commentators and has changed definitions in the final rulemaking to correlate with recent amendments to the act. Definitions changed are ''aboveground storage tank,'' ''storage tank facility'' and ''underground storage tank.''
One commentator expressed concerns with terms excluding aboveground storage tanks and underground storage tanks containing radioactive materials and coolants that are regulated under the Atomic Energy Act of 1954 (42 U.S.C.A. §§ 2011--2297). The commentator stated that some of these tanks also contain hazardous substances and water treatment chemicals and therefore may not be covered in the exclusion. The Department recognizes that many of these tanks may contain other substances in addition to radioactive materials and coolants. For example, water treatment chemicals are routinely added to coolants to minimize corrosion of nuclear plant systems. The Department contends that these tanks do fall under the terms excluding tanks regulated under the Atomic Energy Act of 1954 and no changes to the definitions are necessary.
Several commentators recommended minor changes to the terms ''actively involved'' and ''tightness testing activities'' and further clarification and changes to the term ''removal.'' These terms are modified in the final rulemaking.
Several commentators supported deleting the term ''heating oil for consumptive use,'' but questioned what was meant by the reference to more closely mirror the Federal position on regulation of heating oil tanks in the Preamble to the proposed rulemaking. The Department responded that, by deleting this term from the definitions in Subchapter A, the Commonwealth will have the same exclusion for underground tanks storing heating oil as the Federal requirements in 40 CFR 280. The Federal definitions for ''consumptive use'' and ''on the premises where stored'' were adopted by reference at § 245.2. With this final rulemaking, requirements for underground tanks storing heating oil in this Commonwealth correlate with the Federal requirements.
2. Section 245.2.
Several commentators questioned why the proposed rulemaking would adopt the Federal tank exclusions by reference to 40 CFR 280, but would still not adopt the Federal tank deferrals that are contained at 40 CFR 280. Another commentator opposed deleting the adoption by reference of 40 CFR 280, Subpart E--Release Reporting, Investigation and Confirmation.
The adoption by reference has been modified. The final rulemaking includes the Federal tank deferrals along with the Federal tank exclusions. The proposal to delete adoption by reference to Subpart E is not changed. The adoption by reference to Subparts E and F have not applied in this Commonwealth since the Board adopted Chapter 245, Subchapter D (relating to corrective action process for owners and operators of storage tanks and storage facilities and other responsible parties) by rulemaking at 23 Pa. B. 4033 (August 21, 1993).
3. Section 245.21.
Several individuals commented on the need to establish and enforce inspection programs for regulated storage tanks and the need to ensure that quality control is maintained. During review of comments with industry experts and TAC, it was determined that an option is needed for aboveground nonmetallic tank manufacturers to perform modifications to the tanks they manufacture.
Changes are included in the final rulemaking to allow aboveground nonmetallic tank manufacturers to perform tank handling activities to modify aboveground nonmetallic storage tanks. Changes have also been included to ensure that activities to install or modify aboveground storage tanks in excess of 21,000 gallons capacity are inspected. Development of the inspection program will continue. Additional inspection requirements and schedules for inspections are included in proposed technical standards regulations approved for publication as proposed rulemaking by the Board at its April 16, 1996, meeting.
4. Section 245.31.
One commentator recommended including specific technical information and requirements for a written report for tightness testing activities. Written test report requirements are included in the final rulemaking. References to piping tightness testing have been removed. Specific technical information and piping testing requirements are included in proposed technical standards regulations approved for publication as proposed rulemaking by the Board at its April 16, 1996, meeting.
5. Section 245.105.
Several comments were received on the proposals to change the minimum passing grade requirements for certification examinations. Commentators supported lowering the passing grade requirement for the administrative section of the examinations, but three commentators strongly opposed lowering the passing grade requirement for the technical section of the certification examinations.
The Department agrees that the technical section of the certification examinations should not be lowered. The final rulemaking retains the current 90% minimum passing grade requirement on each technical section.
6. Section 245.108.
Several commentators expressed concerns that reducing the time required for submission of inspection reports to 30 days would not allow inspectors sufficient time to work with owners to resolve facility deficiencies and obtain a compliant inspection report when practicable. The Department agrees with the commentators. The final rulemaking retains the current requirement to submit inspection reports within 60 days.
One commentator also expressed concern that suspension of certification for a violation of § 245.108(a)(9)(i) for causing a threat of pollution is to restrictive. Owning a gasoline station or changing a gas pump filter causes a threat of pollution. The Department does not agree. This subsection limits the Department's discretion to suspend a person's certification for The Clean Streams Law or Solid Waste Management Act violations. Certified activities properly performed should never cause a threat of pollution. If improprieties are evident, however, the Department believes it may be appropriate to suspend certification and so will retain this subsection in the final rulemaking.
7. Sections 245.110 and 245.111.
The Department received several comments supporting consolidation of the certification categories. Three commentators recommended further consolidation of the storage tank remover categories. Commentators recommended modifications to the UMX and UTT categories. One commentator believes that consolidating the AMMX and the AMNX categories is inappropriate. Finally, several commentators recommended reducing or eliminating the total years of experience requirements for installer applicants.
The Department reviewed these comments and recommendations with industry experts and TACs. Based on discussions, several changes to the certified installer categories are included in the final rulemaking.
The three storage tank remover categories are retained as shown in the proposed rulemaking. The final rulemaking allows aboveground field constructed metallic tank installers in the AFMX category to conduct removal activities as this work requires the AFMX installer skills when preparing a tank for reconstruction. Also provisions are added to allow the aboveground field storage tank remover in the AFR category to qualify for the aboveground manufactured storage tank remover AMR category.
Modifications that further clarify air pressure testing for the UMX installer category and deletion of line testing for the UTT tightness tester category are contained in the final rulemaking.
The final rulemaking also retains separate certification requirements and categories for aboveground manufactured metallic storage tanks and aboveground nonmetallic storage tanks.
Finally, the final rulemaking reduces the number of qualifying years of experience for all installer categories and contains provisions that credit an installer applicant with 6 months of qualifying experience for successful completion of a Department approved training program applicable to the certification category being requested.
8. Section 245.113.
Three commentators recommended including an option to qualify underground storage tank inspectors in the IUM category through recognition of activities performed during operations inspections at underground storage tank facilities. Several individuals commented on the use of industry standards, such as ASME, ASNT and API standards, for qualifying aboveground storage tank inspectors. Two commentators suggested that only the API standards should be referenced. Three commentators expressed concerns that the standards proposed are either too restrictive or additional standards should be recognized.
The Department reviewed these comments and recommendations with industry experts and the TACs. Based on these discussions, several changes to the certified inspector categories and requirements are included in the final rulemaking.
Provisions are added to the final rulemaking to recognize operations inspection performance for IUM inspector certification renewal. Aboveground manufactured storage tank inspector qualifications are modified to recognize inspector training and service inspection performance which may be conducted under tank manufacturers or industry standards other than those established at API 653 standards. Finally, aboveground structural integrity inspection restrictions are modified to only include tanks specifically covered under the API 653 standards.
9. Section 245.114.
Several commentators generally agreed with or strongly supported the certification renewal proposals. One commentator expressed concern about retaining records to support renewal applications and three commentators expressed concerns about proposals that make completion of training an option the Department may require rather than a mandatory requirement for all certification renewal applicants.
The Department believes that tank handling activity reports and inspection reports currently maintained under existing regulatory requirements should be adequate to support certification renewal applications, and certified individuals or certified companies should not experience any significant additional recordkeeping requirements. The Department also believes that requiring all certification renewal applicants to complete mandatory training is an excessive and unnecessary burden. Therefore, the proposed language is retained in the final rulemaking.
10. Section 245.123.
One commentator expressed concern with the proposed provision to suspend company certification for withholding individual correspondence or certification documents. The Department is not proposing to suspend company certification for those companies who make a good faith effort to pass Department correspondence on to their employes. Rather, the Department is concerned with the few companies who may deliberately withhold important correspondence. The Department believes this is an important safeguard for installers and inspectors and will retain the proposed language in the final rulemaking.
11. Section 245.132.
One commentator believes that maintaining records of tank handling and inspection activities for 10 years is excessive. IRRC suggested that standards of performance requirements for reporting releases to the Department should specify that the report be submitted in writing. Finally, three commentators expressed concerns that the Department should recognize requirements to adhere to certain National industry codes when performing work on tank systems, and two of these commentators suggest that qualified welders should be able to perform repairs on piping lines without installer certification.
The Department believes that maintaining records for 10 years is prudent and consistent with standard industry practices. The requirement to submit notices of release reports to the Department is modified in the final rulemaking to specify that the report shall be in writing. Both the proposed and the final rulemaking require that certified installers, certified inspectors and certified companies adhere to manufacturer's instructions, accepted industry standards and applicable industry codes of practice. Additionally, the Department does allow maintenance repairs by noncertified workers. Welding of regulated piping inside the emergency containment area may effect the storage tank system integrity and therefore must be performed by a certified installer.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final regulations.
Benefits
The amendments will correct deficiencies observed in the operation of the original regulations and should result in a more efficient program. The clarifications and reductions in the number of certification categories will make the regulations less complex and easier to understand. Owners and operators of regulated storage tank facilities will not be hindered by over-specialization when determining which categories of certification are needed to perform certified activities at their facilities. Changes in installer and inspector requirements should increase the numbers of installers and inspectors able to qualify and receive certification while maintaining competency and proficiency. This should increase competition among the private sector contractors and reduce costs to tank owners, with no adverse impact on the environment.
Tank tightness testing will be performed by certified installers adhering to the approved testing method protocol or by tank owners using automatic tank gauging and monitoring equipment. This will help to identify leaking underground storage tank systems and to initiate corrective actions earlier than currently occurs, helping to prevent further groundwater contamination in this Commonwealth.
Compliance Costs These amendments will reduce costs to the regulated community by reducing the number of required inspections while qualifying additional inspectors to perform the work that is required. These changes will also eliminate most heating oil tanks from regulation, thus reducing costs to owners of those tanks. Additionally, by consolidating several of the certified installer categories and reducing specialization categories, owners and operators of storage tank facilities will in many cases be able to employ only one installer to perform necessary tank handling activities and this should also help to reduce costs. None of the changes contained in this final rulemaking will lead to increased costs for any person regulated under the act.
The Department will not incur additional costs as a result of the recommended changes. The Department's administration of the storage tank program will remain basically as it currently exists.
Compliance Assistance Plan The Department's storage tank program is currently performing outreach and education efforts for the regulated community on a wide range of fronts. Through regional seminars and training sessions, fact sheets and the quarterly Storage Tank Monitor, the Department is attempting to ensure that all persons regulated by the act understand the act's provisions and have the knowledge to comply with those provisions. Because these amendments will probably have the greatest impact on the certified installers and inspectors working with storage tanks, the Department will make special efforts to ensure that those individuals are informed of and understand the changes made by this final rulemaking. Informational seminars will be provided for installers and inspectors.
Paperwork This final rulemaking adds minor reporting requirements for the regulated community. By consolidating certification categories and reducing the time (but not activities) required to qualify for certification, the paperwork involved in applying for certification will be reduced. Reducing inspection requirements will also reduce inspection reporting requirements. The final rulemaking does, however, require certified companies, installers and inspectors to maintain records of tank handling and inspection activities for a minimum of 10 years. While the requirement to maintain these records existed in the original regulations, no minimum time limit for records retention had been established.
G. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfills the goals for which it was intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking, published at 25 Pa.B. 5053 (November 6, 1995), 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 Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Department 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 Environmental Resources and Energy Committee on August 13, 1996, and were deemed approved by the Senate Environmental Resources and Energy Committee on August 13, 1996. IRRC met on August 22, 1996, and approved the regulation in accordance with section 5 of the Regulatory Review Act.
I. 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 25 Pa.B. 5053.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of the Preamble.
J. 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, 245.21, 245.102, 245.103, 245.105, 245.108--245.114, 245.123 and 245.132; and by adding § 245.31 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations. (Editor's Note: Proposed amendments to §§ 245.1 and 245.2, amended in this order, remain outstanding at 26 Pa.B. 3073 (June 29, 1996).)
(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 upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 4371 (September 7, 1996).)
Fiscal Note: Fiscal Note 7-286 remains valid for the final adoption of the subject regulations.
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