TITLE 329 SOLID WASTE MANAGEMENT BOARD

Proposed Rule

LSA Document #06-182

DIGEST

Adds 329 IAC 9-1-18.5, 329 IAC 9-1-27.5, 329 IAC 9-1-27.6, 329 IAC 9-1-27.8, 329 IAC 9-1-40.5, 329 IAC 9-1-41.8, 329 IAC 9-1-45.5, and 329 IAC 9-2-1.2 and amends 329 IAC 9-1-37 concerning additional measures to protect ground water. Repeals 329 IAC 9-1-27.4 and 329 IAC 9-2-1.1. Effective 30 days after filing with the Publisher.

Findings and Determination of the Commissioner pursuant to IC 13-14-9-7 and Second Notice of Comment Period: July 1, 2006, Indiana Register (29 IR 3439).

Notice of First Hearing: July 1, 2006, Indiana Register (29 IR 3443).

Date of First Hearing: September 19, 2006.

IC 13-14-9-4.5 states that a board may not adopt a rule under IC 13-14-9 that is substantively different from the draft rule published under IC 13-14-9-4 until the board has conducted a third comment period that is at least 21 days long. Because this proposed rule is not substantially different from the draft rule published on July 1, 2006, at 29 IR 3439, the Indiana Department of Environmental Management (IDEM) is not requesting additional comment on this proposed rule.

IDEM requested public comment from July 1, 2006, through August 1, 2006, on IDEM's draft rule language. No comments were received during the second comment period.

On September 19, 2006, the Solid Waste Management Board conducted the first public hearing/board meeting concerning the development of amendments to 329 IAC 9 concerning additional measures to protect ground water from leaking underground storage tanks. IDEM received comments from the following parties:

Scott Imus, Executive Director, Indiana Petroleum Marketers and Convenience Store Association (IPCA)

Maggie McShane, Executive Director, Indiana Petroleum Counsel (IPC)

Comment: My name is Maggie McShane. I'm Executive Director of the Indiana Petroleum Council, and the Council is a trade association that is based here locally, and our members are comprised of the major oil companies that have assets and conduct business in the State of Indiana.

I'm here today representing those members, and in addition, I'm wearing a second hat today. I'm also here to speak on behalf of the Indiana Petroleum Marketers and Convenience Store Association, and their Executive Director, Mr. Scot Imus, unfortunately had another obligation and another hearing this afternoon, exactly at this very time, and asked that I speak on behalf of their organization, too. His organization represents the oil marketers, and sometimes people that we refer to as jobbers in our business.

These are Mr. Imus' comments: Mr. Chairman and Board members, this letter provides the Indiana Petroleum Marketers and Convenience Store Association's comments to the Solid Waste Management Board on the preliminary adoption of LSA No. 6-182, amendments to rules at 329 IAC 9 concerning additional measures to protect ground water. The IPCA represents Indiana's petroleum marketing and convenience store industry and has more than 300 corporate members who work in the petroleum supply and distribution industry. These small to medium-sized businesses own and operate thousands of service stations and convenience stores and their related underground storage tanks throughout the State of Indiana.

Number one, Board consideration of this rule is premature in that the U.S. Environmental Protection Agency has yet to issue final guidance on this matter. The proposed rule arises out of provisions in the Energy Policy Act of 2005, PL 109-58, specifically Section 1530 of the Act, which requires each new underground storage tank or piping installed or reinstalled after February 8th, 2007 to be secondarily contained if it's within one thousand feet of any existing community water system or any existing potable drinking water well, or -- and this is the important point -- or evidence of financial responsibility for the person that manufactures a UST or piping for a UST, or installs a UST.

The rule you're considering today is based solely upon the inference by statutory language adopted by Congress, as the U.S. EPA has yet to issue any final guidance that would serve to better direct state regulatory agencies in the regulated community. For instance, what is meant by an existing community water system? Is that subject to a broad interpretation, such as any closed residential water line, or will it be defined more narrowly? Until U.S. EPA gives such final guidance, the State of Indiana will not be certain if this rule complies with the full intent of Section 1530. The argument has been advanced that this rule needs to go forward now or the state could lose potential federal funding. We do not believe this will be the case. In fact, EPA officials have stated privately that there will be no withholding of funds as long as the state regulatory agencies are awaiting EPA to fulfill their responsibilities. As such, the IPCA is aware that only Indiana and a very small number of other states are proceeding with similar rulemaking at this time. (IPCA) (IPC)

Response: It is not premature but timely to adopt the federal law into the Indiana rule now. It will be effective on or around the time the federal law requirements are effective. This rule is based on the latest federal guidance and any changes to the guidance will be amended into the rule.

Comment: Point two: Contrary to the supporting documents, there are several financial costs -- there are severe financial costs associated with this rule. Members of IPCA installing or reinstalling UST's will see their costs increase dramatically if secondary containment is required.

Consider the following price quotes that were taken this week from a tank distributor: A 10,000-gallon tank, single walled, $10,500; a 10,000-gallon tank, double walled, $22,940. For a 20,000-gallon tank, single walled, $20,960; double walled, $44,980. A typical small site with one 20,000-gallon tank and one 10,000-gallon tank would see tank costs increase from 31,460 to 67,920, or by 116 percent. (IPCA) (IPC)

Response: Because the federal law requires secondary containment for UST systems within 1000 feet of a community water supply system, there is no additional cost incurred as a result of this state rule.

Comment: Point no. 3: Other options were not considered which could provide greater environmental protection in a more cost-efficient manner. In Section 1530 of the Act, Congress did provide regulatory agencies in a regulatory community with several options that could be taken to achieve compliance. As an alternative -- As an alternative, regulators have the flexibility to require tank manufacturers, piping manufacturers or tank installers to maintain financial responsibility. That option is not included in this rulemaking. (IPCA) (IPC)

Response: All options were considered. The Indiana Solid Waste Management Board does not have the authority to require financial assurance of manufacturers or installers. Even if the Board had such authority it is not clear how the rule could extend to apply to manufacturers and installers that are located out-of-state. In addition, even if all these obstacles were removed, it is IDEM's position that it is better to prevent a release with secondary containment than require financial assurance that would not be used until after a release occurs.

Comment: If I may now switch over to my comments from the Petroleum Council, we'd like to reinforce what Mr. Imus said and suggest to the Board that undertaking this rulemaking at this time is premature, and for the state to adopt rules prior to clear federal guidelines is a risk-laden approach that could very well jeopardize our future funding and ability to comply with the very grant requirements that are set up by the Federal Government.

This Energy Policy Act of 2005 is -- there's more than 500 pages contained in that Act. Only about 15 of those apply to this particular rulemaking that we're talking about now, but there are many provisions in that than the small 15 pages that are not included in this rulemaking: Financial assurance as an option, financial responsibility as an option, secondary containment, which is a good thing when it's necessary, but for small business people, very costly. (IPC)

Response: All options were considered. The Indiana Solid Waste Management Board does not have the authority to require financial assurance of manufacturers or installers. Other provisions of the federal law will need to be implemented by other agencies or as an IDEM policy.

Comment: In addition, there's an inspection program that's not contained in this rule, there is prohibitions on deliveries of noncompliant tanks that has been omitted, and numerous other provisions that are not being addressed in this rulemaking. We suggest the state is moving too quickly --I understand -- and ask you to wait for the federal guidelines and not risk us losing federal grant money that would be available in the future. (IPC)

Response: It is not a policy of the department to write state rules that impose requirements such as inspection frequencies on the department. The changes to the inspection program and fuel delivery prohibition will be handled under departmental policy or by other state agencies.

Comment: That is federal law, so the Act was signed almost exactly a year ago. EPA, in private conversations, has recognized that the time lines in that Act were completely unreasonable. Fewer than -- I would say, approximately about half a dozen states are in the process of rulemaking, whatever -- as we all know, each state has a different process. One state, the State of Massachusetts, has adopted the option of financial responsibility. That option is important for folks to consider, because certainly secondary containment or double lining, double walling of tanks is a good measure to prevent leaks, but what folks in our industry have found is that when there has been a release in a tank that was upgraded, you know, a compliant underground storage tank, when a release occurred nevertheless, it -- more often than not, that release occurred because the tank wasn't installed properly. Either it was poorly installed by a contractor that did not do a good job, or there were errors in the manufacturing process that resulted in the integrity being challenged. That's why, from a purely environmental protection standpoint, making those folks, you know, provide financial responsibility is a good option for the state to have as opposed to uniformly. (IPC)

Response: Indiana is taking a proactive approach in considering that secondary containment will prevent a leak and contamination from occurring. Financial assurance does not prevent a leak and contamination from occurring but only provides clean-up funds after a leak and contamination has occurred. Owners and operators can hold tank and piping manufacturers accountable through a contract. From an environmental protection standpoint, the secondary containment option is clearly better.

Comment: If I'm a convenience store and I remove a tank or install a tank on February 9, 2007, do I -- this can be just a short answer, yes or no -- am I obligated to comply with the current federal standards that have been passed by Congress? Absolutely, that's federal law, and the federal law gives you two options. (IPC)

Response: It is important for consistency and clarity that the federal law be reflected in state rule by the effective date of the federal law.

SECTION 1. 329 IAC 9-1-18.5 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 18.5. "Existing" means that a:

SECTION 2. 329 IAC 9-1-27.5 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 27.5. "Interstitial monitoring" means a release detection method that continuously monitors the interstitial space of an underground storage tank and piping. The term includes only those release detection systems that are capable of detecting a breach in the primary containment of the underground storage tank and piping component being monitored before the regulated substance or petroleum stored is released to the environment.

SECTION 3. 329 IAC 9-1-27.6 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 27.6. "Interstitial space" means the space between the primary and secondary containment systems.

SECTION 4. 329 IAC 9-1-27.8 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 27.8. "Karst terrains" means an area where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present to karst terrains include any of the following:

SECTION 5. 329 IAC 9-1-37 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 37. (a) "Pipe" or "piping" means a hollow cylinder or tubular conduit that is constructed of nonearthen materials that routinely contains and conveys regulated substances from the tank or tanks to the dispenser or other end-use equipment.

(b) The term does not include vent, vapor recovery, or fill lines that do not routinely contain regulated substances.

SECTION 6. 329 IAC 9-1-40.5 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 40.5. "Replaced" means the permanent removal from service and the new installation of any of the following:

SECTION 7. 329 IAC 9-1-41.8 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 41.8. "Secondary containment" means a release detection system that meets the requirements of 329 IAC 9-7-4(7), but does not include an under-dispenser spill containment system.

SECTION 8. 329 IAC 9-1-45.5 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-18-17-6; IC 13-23-3

Sec. 45.5. (a) "Under-dispenser spill containment" means a device that is capable of preventing an unauthorized release from under the dispenser from entering the soil or ground water or both.

(b) Such containment must:

SECTION 9. 329 IAC 9-2-1.2 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-11-2-241; IC 13-18-17-6; IC 13-23-3

Sec. 1.2. (a) This section applies to the following:

(b) A new or replaced UST system that is installed within one thousand (1,000) feet of an existing CPWSS or any existing potable drinking water well must meet the following requirements:

(c) In the case of a new underground storage tank system consisting of one (1) or more underground storage tanks and connected by piping, subsection (b) applies to all underground storage tanks and connected pipes comprising the underground storage tank system.

(d) In the case of a replaced UST system or replaced existing piping connected to the underground storage tank, subsection (b) applies only to the specific underground storage tank or piping being replaced and not to other underground storage tanks and connected pipes comprising the underground storage tank system.

(e) Each installation of a new motor fuel dispenser system must include under-dispenser spill containment if the new dispenser is within one thousand (1,000) feet of any existing CPWSS or any existing potable drinking water well.

(f) Any owner or operator of a new or replaced tank, piping, or motor fuel dispenser system not meeting the requirements of this section after February 8, 2007, must demonstrate that the tank, piping, or motor fuel dispenser system are not within one thousand (1,000) feet of a CPWSS or public drinking water well.

(g) For purposes of this section, "potable drinking water well" means any dug, driven, drilled, or bored hole that extends into the earth until it meets a water-bearing formation, such as an aquifer, consisting solely of ground water or ground water under the direct influence of surface water that provides water deemed suitable for people to drink in its ambient state or after treatment as approved by the state. Such wells may be either privately or publicly owned and may provide water to a single-family residence, a group of residences, or a community.

(h) For purposes of this section, underground storage tank as defined under IC 13-11-2-241 does not include tank combinations or more than a single underground pipe connection to a tank.

SECTION 10. THE FOLLOWING ARE REPEALED: 329 IAC 9-1-27.4; 329 IAC 9-2-1.1.

Notice of Public Hearing

DIN: 20061115-IR-329060182PRA

Composed: May 04,2024 10:31:07AM EDT

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