BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.56.101,17.56.306, 17.56.1303, 17.56.1304, 17.56.1402, 17.56.1403, 17.56.1404, 17.56.1406, and 17.56.1407 and the repeal of ARM 17.56.1308, 17.56.1309, and 17.56.1409 pertaining to the Montana Underground Storage Tank Installer and Inspector Licensing and Permitting Act

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL   (UNDERGROUND STORAGE TANKS)

 

TO: All Concerned Persons

 

            1. On June 13, 2024, at 10:00 a.m., the Department of Environmental Quality (department) will hold an in-person public hearing in Room 111 of the Metcalf Building, at 1520 E. Sixth Avenue, Helena, Montana, to consider the proposed amendment and repeal of the above-stated rules. Interested parties may also attend the hearing electronically in the following ways:

 

2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m. on June 3, 2024, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail [email protected].

 

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

 

17.56.101 DEFINITIONS For the purposes of this chapter and unless otherwise provided, the following terms have the meanings given to them in this rule and must be used in conjunction with those definitions in 75-11-203, 75-11-302, and 75-11-503, MCA.

(1) through (32) remain the same.

(33) "Implementing agency" means an office or program of a local governmental unit, designated by the department pursuant to ARM 17.56.1003, in which the PST or UST system is located. Only one local governmental unit may act as an implementing agency for any given PST or UST system.

(34) through (82) remain the same, but are renumbered (33) through (81).

 

AUTH: 75-11-204, 75-11-319, 75-11-505, MCA

IMP: 75-11-203, 75-11-302, 75-11-319, 75-11-505, MCA

 

REASON: The department proposes the repeal of (33) "Implementing agency" as the referenced source ARM 17.56.1004 was repealed in 2016 rendering its continued use unnecessary.

 

17.56.306  PERIODIC TESTING OF SPILL PREVENTION EQUIPMENT AND CONTAINMENT SUMPS USED FOR INTERSTITIAL MONITORING OF PIPING AND PERIODIC INSPECTION OF OVERFILL PREVENTION EQUIPMENT

(1) remains the same.

(2)  Testing conducted pursuant to (1) must be accomplished by a licensed installer, or licensed compliance inspector, licensed junior installer, or licensed compliance tester.

(3) through (7) remain the same.

 

AUTH: 75-11-505, 75-11-509, MCA

IMP: 75-11-505, 75-11-509, MCA

 

REASON: The department proposes to add "licensed compliance tester" and "licensed junior installer" to the list of licensees who are authorized to conduct tests pursuant to ARM 17.56.306(1). This amendment is necessary because of the proposed changes to ARM 17.56.1403(1)(f), which would add these two licenses to the list of license categories.  The new license categories will allow individuals who wish to complete testing and installations specific to the requirements of ARM 17.56.306(1) and 17.56.401(2) to obtain a license without the necessary experience required for a full tank installer license or a full third-party compliance inspection license. In addition, this amendment is necessary because of the proposed changes to ARM 17.56.1403(1)(g) which would add "licensed junior installer" to the list of license categories.  The addition of this new license category will allow companies to train employees and utilize their skills for limited testing and repairs before they are ready to become a full installer or inspector. "Licensed junior installers" will be allowed to complete testing and installations specific to the requirements of ARM 17.56.401(2).

 

17.56.1303 INSTALLATION AND CLOSURE PERMIT REQUIREMENT--APPLICATION (1) through (3) remain the same.

(4) The department shall notify an applicant if it determines that an application is deficient. The department shall notify the applicant what information is required for the application to be considered complete. The department shall hold deficient applications pending the receipt of the required information. The department shall issue the permit within 30 15 days of the department's issuance of the final environmental review as required by Title 75, chapter 1, parts 1 and 2, MCA receipt of the complete permit application. If the applicant fails to submit the required information within six months of receiving the department's deficiency notice, the deficient permit application expires.

(5) and (6) remain the same.

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-209, 75-11-212, MCA

 

REASON: This proposal allows the department to approve a permit after it has completed the required environmental review pursuant to the Montana Environmental Policy Act (MEPA).  Specifically, 75-1-208(4), MCA, states that unless time limits for review are established elsewhere, MEPA's statutory time limits for completion of the environmental review process apply.  In such a case, an agency has 90 to 180 days from the date the agency receives a complete application to then complete an environmental review depending on which is required under 75-1-208(4)(a), MCA.  This proposal provides the department with the time needed to perform that required review prior to issuing a decision on the underlying permit.

 

17.56.1304 PERMIT APPLICATION REVIEW FEES (1) and (2) remain the same.

(3) Subject to the limitation in (4), for the installation or closure of an underground storage tank system, the permit applicant shall pay the following permit application review fees:

(a) any application, or group of applications, proposing work at a facility that includes the installation or closure of an underground storage tank $100 $161/permit plus $0.02/gallon of tank capacity;

(b) any application solely for a minor installation $50 $80;

(c) any application solely for piping installation and/or closure:

(i) greater than 50 feet $100 $161;

(ii) 50 feet or less $50 $80; and

(d) any combination of applications in (3)(b) and (c), or any other permit application $100 $161.

(4) remains the same.

(5) Permit application review fees for installations, closures, or both, at one facility or location must not exceed $750 $1208 per permit issued by the department.

(6) remains the same.

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-209, 75-11-212, MCA

 

REASON: The department has determined that reasonable necessity exists to generally amend the fee rules to establish sufficient fees to enable the department to effectively operate and implement the federal and state regulatory obligations. The current fee structure was last updated in 2005. This fee proposal is intended to simplify the existing fee structure, apply the fees equitably across the regulated community, provide predictability, be commensurate with costs, and generate sufficient revenue to meet department mandated tasks such as inspections of facilities, reporting requirements to the Environmental Protection Agency (EPA) to maintain state delegation for federal rules, and electronic record management regarding tank sites and individuals licensed in underground storage tank (UST)-related occupations. On average, over the past six years, UST expenditures are greater than the revenues coming in, especially with database development, and fiscal reserves cannot fully support the department program without adjusting fees. Approximately half of the UST program funding comes from federal grant awards. In 2023 and 2024, the department compensated for this funding deficiency by relying on general use EPA grant funding to operate the UST program. It is uncertain how long the general use EPA grant funding will be available for use by the UST program. For the department to carry out UST regulatory functions, as required by statute and rule, license and permit fees must, at a minimum, keep up with inflation. The department proposes the change to fees according to Bureau of Labor and Statistics data, which shows an inflationary rise since 2005 on a $100 annual fee now places that cost at $161. For fiscal year 2023, the UST program issued 312 UST construction permits (141 minors at $50 each, 127 majors at $100 each, and 44 majors with fees greater than $100 each). UST construction permit fees invoiced for fiscal year 2023 were $38,913. The proposed changes would increase this number by $25,500 going forward under the assumption that similar permit applications are received.

 

17.56.1402 ELIGIBILITY FOR LICENSE (1) A person may not be granted an installer, or remover a license specified in ARM 17.56.1403(1) by the department unless that person:

(a) through (4) remain the same.

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-210, 75-11-211, 75-11-214, 75-11-505, 75-11-509, MCA

 

REASON: The department proposes to strike specific license names and instead reference ARM 17.56.1403 "License Categories" where they are individually listed already. Listing individual license disciplines in ARM 17.56.1402 is redundant. 

 

17.56.1403 LICENSE CATEGORIES (1) There are five eight license categories:

(a) through (c) remain the same.

(d) compliance inspectors, which includes those licensees who inspect operating underground storage tank facilities for compliance with underground storage tank regulations; and

(e) oversight inspectors, which includes those licensees who conduct oversight inspections to verify accuracy of inspection reports submitted by compliance inspectors.;

(f) compliance testers, which includes, but is not limited to, those licensees who conduct triennial testing in accordance with ARM 17.56.306(1), and testing in accordance with ARM 17.56.401(2);

(g) junior installers, which includes those licensees who may install, replace, repair, or modify spill prevention equipment; containment sumps used for interstitial monitoring of piping; and overfill prevention equipment. Licensees must obtain construction permits for any permitted work before performing installations, repairs, or modifications of the spill prevention equipment, containment sumps, and overfill prevention equipment; and

(h) corrosion protection installers, which includes those licensees who can only install corrosion protection on UST systems.

(2) through (8) remain the same.

 

AUTH: 75-11-204, MCA

IMP:   75-11-204, 75-11-210, 75-11-509, MCA

 

REASON: The "(f) compliance tester" and "(g) junior installer" were added as license categories to increase the number of licensed personnel who can do minor repairs or tests on underground storage tank systems in accordance with ARM 17.56.306 and 17.56.401(2). ARM 17.56.306 requires testing of spill prevention equipment, containment sumps used for piping interstitial monitoring, and overfill prevention devices to be completed by a licensed installer or compliance inspector. Owners have a difficult time getting licensees out to their locations to make minor repairs and perform required testing. This delay can result in violations or even releases where funding eligibility may be denied due to repairs not being done. The addition of these two categories allows for companies to train employees and utilize their skills for limited testing and repairs before they are ready to become a full installer or inspector. The new license categories allow individuals who wish to complete testing and installations specific to the requirements of ARM 17.56.401(2) to obtain a license without the necessary experience required for a full tank installer license or a full third-party compliance inspection license. Some individuals prefer to focus their work on testing and repairs specific to this type of equipment, rather than license as third-party UST compliance inspectors or full UST installers. The amount of work required throughout the state of Montana has increased significantly in testing of spill containment devices, containment sumps, and overfill devices since 2018 when the additional testing mandates were added to the UST regulations.

The addition of "(h) corrosion protection installer" is proposed for unique situations of UST repair work where a corrosion protection specialist is essential to complete a project. Current regulations require a full installer license to perform specialty corrosion protection work; however, this work is often outside the capabilities of a normal UST installer as it requires the specialized skills of a corrosion protection professional. 

 

17.56.1404 LICENSE FEES (1) remains the same.

(2) Licensing fees are as follows:

(a) license application and examination fee $100 $483

(b) annual license renewal fee $100 $483

(c) duplicate license fee $10

           (3) and (4) remain the same.

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-210, 75-11-211, 75-11-509, MCA

 

REASON: The department has determined that reasonable necessity exists to generally amend the fee rules to establish sufficient fees to enable the department to effectively operate and implement the federal and state regulatory obligations. The current fee structure was last updated in 2005. This fee proposal is intended to simplify the existing fee structure, apply the fees equitably across the regulated community, provide predictability, be commensurate with costs, and generate sufficient revenue to meet department mandated tasks such as inspections of facilities, reporting requirements to EPA to maintain state delegation for federal rules, and electronic record management regarding tank sites and individuals licensed in UST-related occupations. On average, over the past six years, UST expenditures are greater than the revenues coming in, especially with database development, and fiscal reserves cannot fully support the department program without adjusting fees. Approximately half of the UST Program funding comes from federal grant awards.  In 2023 and 2024, the department compensated for this funding deficiency by relying on general use EPA grant funding to operate the UST program. It is uncertain how long the general use EPA grant funding will be available for use by the UST program. For the department to carry out UST regulatory functions, as required by statute and rule, license and permit fees must, at a minimum, keep up with inflation. The department proposes the change to fees according to Bureau of Labor and Statistics data, which shows an inflationary rise since 2005 on a $100 annual fee now places that cost at $161.

The department also proposes to extend the licensing period from one year to three years under ARM 17.56.1406(2). This proposal will assist in maintaining lower fees, reduce resource expenditure by the department by minimizing the frequency of applicant processing, decrease the paperwork burden on applicants, and provide more consistent results on currently licensed individuals when searched by the public.

The department receives few requests for duplicate licenses and proposes to repeal the fee in (2)(c) as duplication of information from the department database and can be efficiently extracted, with the cost absorbed by initial licensing fees.

 

17.56.1406 LICENSE ISSUANCE, TERM, RESTRICTIONS (1) remains the same.

(2) A license issued under this subchapter is valid for one three calendar year years beginning on March 1 of the year the license is issued and ending on the last day of February of the following year of the third year. A license under this subchapter expires at the end of the annual triennial period, unless annual registration fees are paid within the annual period. In addition, the licensee must earn the required department-approved continuing education units within the triennial period.

(3) through (5) remain the same.

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-210, 75-11-211, 75-11-509, MCA

 

REASON: The department proposes to extend the licensing period from one year to three years under ARM 17.56.1406(2). This proposal will assist in maintaining lower fees, reduce resource expenditure by the department by minimizing the frequency of applicant processing, decrease the paperwork burden on applicants, and provide more consistent results on currently licensed individuals when searched by the public.

 

17.56.1407 LICENSE RENEWAL (1) A licensee who does not request a change from the category of license currently held may renew the license within the annual triennial period if the licensee completes a renewal application form provided by the department, pays the license renewal application fee required by ARM 17.56.1404, and, before the conclusion of each triennial period, provide sufficient proof that the continuing education requirements have been satisfactorily completed as required by (3) or (4).

(2) remains the same.

(3) Licensed removers must complete at least one refresher training course administered approved by the department for a total of four credit hours of continuing education within the triennial period.

(4) All licensees not subject to (3) must complete at least two department-approved continuing education courses for a total of 16 credit hours of continuing education within the triennial period. One course must be a department-administered refresher training course.

(5) remains the same.

(6) A licensee, whose license has expired or who wants to change license categories, is subject to the same licensing requirements as a new applicant, including payment of the license application and examination fees and the satisfactory completion of the written licensing examination.

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-210, 75-11-211, 75-11-509, MCA

 

REASON: The department proposes under (1) to amend language in consideration of the proposed change to ARM 17.56.1406(2) in extending the licensing period from one year to three years. This proposal will assist in maintaining lower fees, reduce resource expenditure by the department by minimizing the frequency of applicant processing, decrease the paperwork burden on applicants, and provide more consistent results on currently licensed individuals when searched by the public.

The department proposes to remove the word "administered" in (3) and replace it with "approved" as there are many training courses available online that are not administered by the department but are "approved" pursuant to ARM 17.56.1408 that meet training requirements for licensing. Similarly, the requirement that one course must be a "department-administered" refresher training for licensees' continuing education has been removed in (4), reducing department resource expenditure and offering more options and flexibility to licensees.

The department proposes to remove the word "written" in (6) as the term is not clearly defined, and the administration of the licensing examination may take alternate forms such as an electronic format.

 

4. The department proposes to repeal the following rules:

 

17.56.1308 INSPECTION IN LIEU OF LICENSED INSTALLER 

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-209, 75-11-212, 75-11-213, MCA

 

REASON: The department proposes to repeal ARM 17.56.1308 as this service is more appropriately provided by a private sector licensed installer. The department also performs and prioritizes activities based on staffing availability and can contribute a broader range of services to a greater number of stakeholders by eliminating this department function.

 

17.56.1309 INSTALLATION AND CLOSURE INSPECTION FEES

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-209, 75-11-212, 75-11-213, MCA

 

REASON:  The department proposes to repeal ARM 17.56.1309 as the proposed removal of ARM17.56.1308 eliminates its necessity and renders it obsolete.

 

17.56.1409 DUPLICATE LICENSES

 

AUTH: 75-11-204, MCA

IMP: 75-11-204, 75-11-210, 75-11-509, MCA

 

REASON: The department proposes the repeal of ARM 17.56.1409 as the department receives few requests for duplicate licenses and has subsequently proposed to repeal the fee for them in ARM 17.56.1404. Duplication of licenses can be efficiently extracted from the department database by employees in a short period of time, and the fiscal impact of this effort is absorbed by initial licensing fees.

 

5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to the Department of Environmental Quality, at 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; telephone (406) 444-1388; fax (406) 444-4386; or e-mail [email protected], and must be received no later than 5:00 p.m., June 21, 2024.

 

6. Paul Nicol, staff attorney for the department, has been designated to preside over and conduct this hearing.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in paragraph 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register. 

 

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

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

/s/ Sarah Christopherson                           /s/  Christopher Dorrington            

SARAH CHRISTOPHERSON                   CHRISTOPHER DORRINGTON

Rule Reviewer                                           Director

                                                                   Department of Environmental Quality

 

Certified to the Secretary of State May 14, 2024.