December 15, 2016 - DNR · December 15, 2016 Department of Natural Resources, Hazardous Waste Program ... on October 27, 2016. Email comments shall be sent to [email protected]

DRAFT

NOTICE OF OPEN MEETING

The meeting will also be streamed live from the Department’s website at: dnr.mo.gov/videos/live.htm

DEPARTMENT OF NATURAL RESOURCES

HAZARDOUS WASTE PROGRAM HAZARDOUS WASTE MANAGEMENT COMMISSION

AGENDA

December 15, 2016 Department of Natural Resources, Hazardous Waste Program

Roaring River Conference Room 1730 E. Elm Street

Jefferson City, MO 65102

Note: Persons with disabilities requiring special services or accommodations to attend the meeting can make arrangements by calling the commission assistant at (573) 751-2747 or writing to the Hazardous Waste Program, P.O. Box 176, Jefferson City, MO 65102. Hearing impaired persons may contact the Hazardous Waste Program through Relay Missouri at 1-800-735-2966. Persons requesting to speak before the Commission will be limited to 5 minutes unless directed otherwise by the Chair.

9:45 A.M. EXECUTIVE (CLOSED) SESSION In accordance with Section 610.022 RSMo, this portion of the meeting may be closed by an affirmative vote of the Commission to discuss legal matters, causes of action or litigation as provided by Subsection 610.021(1). RSMo. 10:00 A.M. GENERAL (OPEN) SESSION The General (Open) Session will begin promptly at 10:00 a.m., unless an Executive (Closed) Session has been requested; after which, the General Session will start as specified by the Commission’s chairman.

Commissioner Roll Call 1. Pledge of Allegiance – Commissioners 2. Approval of Minutes – General (Open) Session, Oct. 20, 2016 – Commissioners

Approval of Minutes – General (Open) Session, Nov. 3, 2016 – Commissioners Action Item 3. Certification of Decision – Proposed Amendments to 10CSR26 – Underground Storage

Tank Rules – Commissioners

Page Two Information Only 4. Rulemaking Update – Tim Eiken, Director’s Office, HWP

5. Legislative Update – Tim Eiken, Director’s Office, HWP

6. Financial Responsibility – Mike Martin, Compliance and Enforcement Section, HWP

7. Infographic on Missouri’s Hazardous Waste Generator Program – David Green, Budget &

Planning Section, HWP

8. Legal Update – Brook McCarrick, Office of the Attorney General

9. Public Inquiries or Issues – Steve Sturgess, Director, HWP

10. Other Business – Steve Sturgess, Director, HWP

11. Future Meetings Thursday, Feb. 16, 2016 – to be held in the Roaring River/Bennett Springs Conference Rooms, 1730 E. Elm Street Conference Center, Jefferson City, MO

Adjournment

MISSOURI DEPARTMENT OF NATURAL RESOURCES

HAZARDOUS WASTE MANAGEMENT COMMISSION

Meeting Date: December 15, 2016

ROLL CALL ROSTER

In Person: By Phone: Absent

Chairman Elizabeth Aull _____ ______ _____

Vice-Chairman Jamie Frakes _____ ______ _____

Commissioner Charles Adams _____ ______ _____

Commissioner Michael Foresman _____ ______ _____

Commissioner Mark Jordan _____ ______ _____

Missouri Hazardous Waste Management Commission Meeting

December 15, 2016 Agenda Item # 1

Pledge of Allegiance



Approval of Minutes

Issue:

Commission to review the General Session minutes from the Oct. 20, 2016, Hazardous Waste Management Commission meeting.

Commission to review the General Session minutes from the Nov. 3, 2016, Hazardous

Waste Management Commission meeting. Recommended Action:

Commission to approve the General Session minutes from the Oct. 20, 2016, Hazardous Waste Management Commission meeting.

Commission to approve the General Session minutes from the Nov. 3, 2016, Hazardous Waste Management Commission meeting.

GENERAL

SESSION

MEETING

MINUTES

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GENERAL SESSION HAZARDOUS WASTE MANAGEMENT COMMISSION

October 20, 2016; 10:00 A.M. 1730 E. Elm Street

Bennett Springs/Roaring River Conference Rooms Jefferson City, MO 65102

(Note: The minutes taken at Hazardous Waste Management Commission proceedings are just that, minutes, and are not verbatim records of the meeting. Consequently, the minutes are not intended to be and are not a word-for-word transcription.) The meeting was streamed live from the Department’s website at: dnr.mo.gov/videos/live.htm. The phone line, for those Commissioners calling in to today’s meeting, was opened at 9:30 a.m. COMMISSIONERS PRESENT IN PERSON Chairman Elizabeth Aull Commissioner Michael Foresman COMMISSIONERS PRESENT BY PHONE Commissioner Mark Jordan Commissioner Charles Adams Chairman Aull called the General Session to order at approximately 10:00 a.m. A roll call was taken of the Commissioners. Chairman Elizabeth Aull and Commissioner Michael Foresman were present in person. Commissioner Charles Adams and Commissioner Mark Jordan were present by phone. 1. PLEDGE OF ALLEGIANCE

Chairman Aull led the recitation of the Pledge of Allegiance by the Hazardous Waste Management Commission (Commission) and guests.

2. APPROVAL OF MINUTES

General Session minutes from the August 18, 2016, meeting:

Commissioner Foresman made a motion to approve the August 18, 2016, General Session minutes. Commissioner Adams seconded the motion.

A vote was taken; all were in favor, none opposed. Motion carried. Minutes were approved.

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3. PUBLIC HEARING – PROPOSED AMENDMENTS TO 10CSR26 – UNDERGROUND STORAGE TANKS RULEMAKING Chairman Aull called the public meeting to order and made the following statement: “I hereby call this public hearing to order. A public hearing is not typically a forum for debate of the issues. Rather, the purpose of this hearing is to provide the Department of Natural Resources and the public an opportunity to present testimony on the proposed changes to Chapter 2 of 10 CSR 26. At the request of the Commission, the Department will first present testimony on the proposed amendments and new rules. Following their testimony, the public will be given the opportunity to comment on the proposed rulemaking. A sign-up sheet is provided at the back of the room for anyone in attendance at the hearing, in addition to comment forms for those who wish to make any oral comments. Please fill out a comment form if you wish to be heard. This will aid us in recognizing speakers and calling them to testify. Additionally, we ask anyone who approaches the Commission to testify to please state their name and affiliation, if any, for the record and provide a business card, if available, to the court reporter and to the commission secretary. Written comments will also be accepted at this hearing. Please provide them to the Hazardous Waste Program’s Director, Steve Sturgess. Following the conclusion of the hearing, comments may be submitted by mail to the Director of the Hazardous Waste Program, P.O. Box 176, Jefferson City, Missouri 65102. Comments submitted by mail must be postmarked on or before the end of the public comment period, on October 27, 2016. Email comments shall be sent to [email protected] and must also be received no later than October 27, 2016.”

Ms. Heather Peters addressed the Commission and provided testimony for the state on the proposed amendments to 10CSR26, Underground Storage Tanks Rules. A copy of the PowerPoint presentation made and the transcript for this public hearing can be found at: http://dnr.mo.gov/env/hwp/commission/meetings.htm. Following the conclusion of Ms. Peters’ testimony, Ms. Carol Eighmey, Executive Director of the Petroleum Storage Tank Insurance Fund (PSTIF), testified before the Commission outlining conflicts she represented to the proposed amendments. Testimony provided by Ms. Eighmey can also be found at: http://dnr.mo.gov/env/hwp/commission/meetings.htm.

Following this testimony Commission Foresman made a motion to close the hearing, which was seconded by Commission Adams.

No questions were posed by the Commission. This was provided as information only and required no other action on the part of the Commission at this time.

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4. RULEMAKING UPDATE Mr. Tim Eiken, Director’s Office, HWP, addressed the Commission and noted that most of the recent rulemaking efforts had been touched upon by Heather Peters during the public hearing portion of the meeting. He advised that staff were currently working on the Regulatory Impact Report and the response to comments and proposed changes would be presented at the December meeting. Mr. Eiken went on to note that there were a couple of other rulemaking issues that staff was working on at this time. He advised that it had been 1 ½ years since the “No Stricter Than” legislation had passed which dictated a review of Missouri’s rules. He noted that there were new federal rules that have come out since the last update in 2013 that were being looked at for adoption and the “Definition of Solid Waste” rule was still being reviewed. He noted that it was 120 pages and was taking some time to go through. He also advised that the new fee structure would go in to effect on Jan. 1, 2017, and there was still some outdated language in the rules that would need to be addressed. Mr. Eiken stated that the Missouri Riske Based Corrective Action guidance document and rule was also being reviewed for update and hoped to have some proposals and rule language by late this year or early next year. He went on to state that the Department’s five year review process was underway as the state needed to review their rules every five years to ensure the rules were still applicable and there was no outdated or duplicative language. He noted that the comment period had ended on that review and that the Department had only received one comment on rules associated with the Hazardous Waste Program. He noted that the Department would be preparing its report to the Joint Committee on Administrative Rules in line with their requirements. Mr. Eiken explained that a new webpage was being proposed for rules in development and all updates would be posted to it. The new site would provide the rule text, any fiscal notes the RIR, etc., and comments could be submitted electronically on any rules proposed. He advised the Commission that he would keep them updated on this effort.

No questions were posed by the Commission. This was provided as information only and required no other action on the part of the Commission.

5. LEGISLATIVE UPDATE

Mr. Tim Eiken, Director’s Office, HWP, addressed the Commission and noted that there was no new information on legislative issues since the last meeting. He advised that it was in-between sessions and they had wrapped up the bills at the last meeting. He noted that staff continue to monitor any proposed legislation and were watching sunset dates. He stated that the DERT Fund was scheduled to sunset in Aug. of 2017 and that the battery fee was scheduled to sunset in 2018. He noted that there were two more legislative sessions for extensions to be proposed.

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6. DRYCLEANING ENVIRONMENTAL RESPONSE TRUST (DERT) FUND ANNUAL

REPORT Mr. Scott Huckstep, Chief, Brownfield/Voluntary Cleanup Program, addressed the Commission and provided an overview of the DERT Annual Report. Mr. Huckstep noted that the report was due to the legislators by July of each year for the previous calendar year. He provided a PowerPoint presentation showing historical information, trends and current status of the fund. Mr. Huckstep noted that the fund was decreasing as the number of registrants decreased each year with technology changes and drycleaners moving away from chlorinated solvents. He stated that all drycleaners had to register originally; but, those using non-chlorinated solvents received an exemption following a change in legislation in 2005. Mr. Huckstep explained that the surcharges for use of chlorinated solvents provide funding for cleanups, but there have been no new cleanups funded since 2012, and that any work plans after Sept. 2012, may not have funds available for reimbursement. He went on to advised the Commission that as the sunset date draws near, if legislation is not proposed to extend the fund, staff are beginning to put together a plan to close out the fund permanently. He did note that there had been some legislative interest expressed but nothing was confirmed. Mr. Huckstep responded to questions from the Commission regarding the number of ongoing cleanups and what will happen to those sites if the fund closes.

No other questions were posed by the Commission. This was provided as information only and required no other action on the part of the Commission.

7. QUARTERLY REPORT

Ms. Amy Feeler, Public Information Officer, addressed the Commission and presented the Quarterly Report for the period of April through June 2016. Ms. Feeler directed their attention to the article on Plume Stability from the RCRA perspective, which had been provided by the Permits section.


8. LEGAL UPDATE

Ms. Brook McCarrick addressed the Commission and advised that the Attorney General’s Office currently had 86 active hazardous waste cases and that half of them were UST related.

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Ms. McCarrick then introduced Brian Allard, who she advised was a new attorney with the AGO’s office who was working with environmental cases, and noted that he would be providing information on what the AGO was currently doing with these type of cases. Mr. Allard addressed the Commission and began by noting that the AGO’s office was taking a new approach to UST cases. He advised that prior to Apr. or May, when a financial responsibility (FR) case came in, it started a process, or a “demand package.” He noted that a demand letter was sent, and any efforts were on hold awaiting a response; with the case just sitting around waiting and no FR in place. He advised that in one instance there were five petitions sent in for FR violations and that the sites had had PSTIF coverage at one time so the responsible parties were aware of what was required. He stated that preliminary injunctions were filed in these cases for lockouts on the facilities, and some success had been seen on these sites. He stated that there were mixed results from this action, either FR was put in place or the tanks began closure efforts; but, he noted there was immediate responses to this type of effort and that he hoped to continue to use this process. He advised that he had asked DNR to get cases to the AGO’s office quickly so filings could be done. He went on to state that the AGO’s office was also trying to make judges aware that these were not just “paperwork violations,” but that they had a larger impact and this ensured that everyone was complying. Mr. Allard responded to a question from the Commission as to where the cases were being filed, and he noted that the county where the offense took place was where the case would be heard. He noted that maps were provided showing the surrounding areas so that the judges were aware of the area surrounding the sites and who/what could be affected, thereby humanizing the case.

No other questions were posed by the Commission. This was provided as information only and required no action on the part of the Commission.

9. PUBLIC INQUIRIES AND ISSUES The floor was opened to any public inquiries and Mr. Kevin Perry, REGFORM, requested to speak before the Commission. Mr. Perry addressed the Commission and advised the Commission that he wanted to provide a heartfelt and quick thanks to DNR staff for their presentations at the recent REGFORM conference. He noted that there was a good turnout and that in addition to being presenters, staff had also been well represented in the attendance and had interacted with stakeholders also in attendance, providing for good dialogue between regulators and stakeholders.

No questions were posed by the Commission. This was provided as information only and required no action on the part of the Commission.

11. OTHER BUSINESS

Mr. Steve Sturgess, Director, HWP, addressed the Commission and noted that Sara Parker Pauley had left the Department and would start as the Director of the Department of

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Conservation as of Nov. 1, 2016. He went on to state that Harry Bozoian had been appointed as the new Department Director. Mr. Sturgess then noted that the EPA had completed their review of the department’s Tanks program along with their review of the PSTIF program and that staff were awaiting the draft report. He also advised that the PSTIF had held their Sept. Board meeting, with the Tanks budget being on the agenda; but, they had tabled the issue until the EPA report was received. The board had also advised the department that they had directed their legal counsel to determine if the PSTIF even had a legal obligation to fund the Tanks program. Mr. Sturgess noted that staff were currently reviewing the EPA’s Determination on Solid Waste and would provide information in the future. He also noted that there would be a short public hearing on Nov. 3, 2016, which would be held by conference call for the Commissioners. He then advised that the regular meeting scheduled for Dec. 15, 2016, would require a vote on the proposed rules and that it was very important that the Commission had a quorum for that meeting. Commissioner Aull asked that the EPA review be shared with the Commission when it was received.

No other questions were posed by the Commission. This was provided as information only and required no action on the part of the Commission.

12. FUTURE MEETINGS

It was noted that there was a special public hearing scheduled for Thursday, November 3, 2016, to hear the state’s and public testimony on the two UST proposed rule amendments that were not heard at today’s meeting. Chairman Aull reiterated to the Commissioners that it was a public hearing and it was very important that they be available for it and the December meetings. A motion was made by Commission Foresman to adjourn the meeting and was seconded by Commissioner Jordan. Chairman Aull adjourned the meeting at 12:16 p.m.

Respectfully Submitted, ______________________________ Debra D. Dobson, Commission Assistant APPROVED ______________________________ _____________________ Elizabeth Aull, Chairman Date

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GENERAL SESSION HAZARDOUS WASTE MANAGEMENT COMMISSION

November 3, 2016; 09:30 A.M. 1730 E. Elm Street

Bennett Springs/Roaring River Conference Rooms Jefferson City, MO 65102

(Note: The minutes taken at Hazardous Waste Management Commission proceedings are just that, minutes, and are not verbatim records of the meeting. Consequently, the minutes are not intended to be and are not a word-for-word transcription.) The meeting was streamed live from the Department’s website at: dnr.mo.gov/videos/live.htm. The phone line was opened at 9:20 a.m. COMMISSIONERS PRESENT BY PHONE Chairman Elizabeth Aull Vice-Chairman Jamie Frakes Commissioner Michael Foresman Commissioner Mark Jordan Chairman Aull called the General Session to order at approximately 09:30 a.m. A roll call was taken of the Commissioners. Chairman Elizabeth Aull, Vice-Chairman Jamie Frakes, Commissioner Michael Foresman and Commissioner Mark Jordan were present by phone. 1. PLEDGE OF ALLEGIANCE

Chairman Aull asked Steve Sturgess to lead the recitation of the Pledge of Allegiance by the Hazardous Waste Management Commission (Commission) and guests.

2. PUBLIC HEARING – PROPOSED AMENDMENTS TO 10CSR26 – UNDERGROUND STORAGE TANKS RULEMAKING Chairman Aull called the public meeting to order and made the following statement: “I hereby call this public hearing to order. A public hearing is not typically a forum for debate of the issues. Rather, the purpose of this hearing is to provide the Department of Natural Resources and the public an opportunity to present testimony on the proposed changes to Chapter 2 of 10 CSR 26. At the request of the Commission, the Department will first present testimony on the proposed amendments and new rules. Following their testimony, the public will be given the opportunity to comment on the proposed rulemaking. A sign-up sheet is provided at the back of the room for anyone in attendance at the hearing, in addition to comment forms for those who wish to make any oral comments. Please fill out a comment form if you wish to be heard. This will aid us in recognizing speakers and calling them to testify. Additionally, we ask

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anyone who approaches the Commission to testify to please state their name and affiliation, if any, for the record and provide a business card, if available, to the court reporter and to the commission secretary. Written comments will also be accepted at this hearing. Please provide them to the Hazardous Waste Program’s Director, Steve Sturgess. Following the conclusion of the hearing, comments may be submitted by mail to the Director of the Hazardous Waste Program, P.O. Box 176, Jefferson City, Missouri 65102. Comments submitted by mail must be postmarked on or before the end of the public comment period, on October 27, 2016. Email comments shall be sent to [email protected] and must also be received no later than October 27, 2016.”

Ms. Heather Peters addressed the Commission and provided testimony for the state on the two proposed amendments to 10CSR26, Underground Storage Tanks Rules. A copy of the PowerPoint presentation made and the transcript for this public hearing can be found at: http://dnr.mo.gov/env/hwp/commission/meetings.htm. Vice-Chairman Frakes posed a question regarding the schedule, which was responded to by Ms. Peters.

No other questions were posed by the Commission. This was provided as information only and required no other action on the part of the Commission at this time. Chairman Aull requested a motion to close the hearing, which was made by Commissioner Foresman, and was seconded by Vice-Chairman Frakes. All were in favor, none opposed, motion carried.

Chairman Aull inquired as to whether there were any other questions and noted the Commission would be tasked with making a decision on the rule package at the Dec. 15, meeting, and encouraged all the Commissioners to be available for this vote. A motion was made by Vice-Chairman Frakes to adjourn the meeting and was seconded by Commissioner Foresman. Chairman Aull adjourned the meeting at 9:42 a.m.

Respectfully Submitted, ______________________________ Debra D. Dobson, Commission Assistant APPROVED ______________________________ _____________________ Elizabeth Aull, Chairman Date

Hazardous Waste Management Commission Meeting


Certification of Decision on Orders of Rulemaking for Proposed Rules Regarding

Underground Storage Tanks

Issue: The Department has received comments and provided responses to each comment, including some changes to the text of the following proposed rules located in Title 10, Division 26 of the Code of State Regulations (10 CSR 26). The recommended changes and revised rule text are included in an Order of Rulemaking for each of the following proposed rules. The adoption of the Orders of Rulemaking is an opportunity for the Commission to discuss the proposed rules, the comments received and the recommended response to comments, and provide a final decision on the text of the following amendments and new rules. __________Amended Rules__________ 10 CSR 26-2.010 Applicability 10 CSR 26-2.011 Interim Prohibition for Deferred Underground Storage Tank Systems 10 CSR 26-2.012 Definitions 10 CSR 26-2.019 New Installation Requirements 10 CSR 26-2.020 Performance Standards for New Underground Storage Tank Systems 10 CSR 26-2.021 Upgrading of Existing Underground Storage Tanks Systems 10 CSR 26-2.022 Notification Requirements 10 CSR 26-2.030 Spill and Overfill Control 10 CSR 26-2.031 Operation and Maintenance of Corrosion Protection 10 CSR 26-2.032 Compatibility 10 CSR 26-2.033 Repairs 10 CSR 26-2.034 Reporting and Record Keeping 10 CSR 26-2.040 General Requirements for Release Detection for All Underground

Storage Tank Systems 10 CSR 26-2.041 Requirements for Petroleum Underground Storage Tank Systems

10 CSR 26-2.042 Requirements for Hazardous Substance Underground Storage Tanks Systems

10 CSR 26-2.043 Methods of Release Detection for Tanks 10 CSR 26-2.044 Methods of Release Detection for Piping 10 CSR 26-2.048 Release Detection Record Keeping (Amendment – moves from 2.045) 10 CSR 26-2.050 Reporting of Suspected Releases 10 CSR 26-2.052 Release Investigation and Confirmation Steps __________New Rules__________ 10 CSR 26-2.013 UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel

Distribution Systems 10 CSR 26-2.035 Testing of Containment Sumps 10 CSR 26-2.036 Operation and Maintenance Walkthrough Inspections 10 CSR 26-2.046 Alternative Methods of Release Detection for Field-Constructed Tanks 10 CSR 26-2.047 Alternative Methods of Release Detection for Bulk Piping Recommended Action: The Commission to adopt Orders of Rulemaking for the proposed amendment of 10 CSR 26-2.(010, 011, 012, , 019, 020, 021, 022, 030, 031, 032, 033, 034, , 040, 041, 042, 043, 044, 048, 050, 052) and proposed new rules 10 CSR 26-2.(013, 035, and 036) published in the September 15, 2016, Missouri Register; and the proposed new rules10 CSR 26-2.(046, 047) published in the October 3, 2016, Missouri Register, and that the Commission direct the Department to proceed to file the Orders with the Joint Committee on Administrative Rules and the Secretary of State. Presented By: Heather Peters – Compliance and Enforcement Section, HWP

Suggested Motion Language:

“I move that the Commission (adopt)(not adopt)(adopt with modifications) the Orders of Rulemaking for the proposed amendment of 10 CSR 26-2.(010, 011, 012, , 019, 020, 021, 022, 030, 031, 032, 033, 034, , 040, 041, 042, 043, 044, 048, 050, 052) published in the September 15, 2016, Missouri Register, the proposed new rules 10 CSR 26-2.(013, 035,

036) published in the September 15, 2016, Missouri Register; and the proposed new rules 10 CSR 26-2.(046, 047) published in the October 3, 2016, Missouri Register, and that the Department (proceed)(not proceed) to file the Orders with the Joint Committee on Administrative Rules and the Secretary of State.”

CHAIRMAN AULL’S OPENING STATEMENT

Orders of Rulemaking for Proposed

Rules Pertaining to Underground Storage Tanks

CHAIRMAN’S STATEMENT On Aug, 15, 2016, the Department, with the approval of this Commission, filed amended and proposed underground storage tank rules with the Secretary of State’s office. Publication of the rules in the Sept. 15, 2016, Missouri Register, and republication of two of the proposed rules in the Oct. 3, 2016, edition of the Missouri Register, began the public comment periods for the rules. Public hearings, regarding the rules, were held on Oct. 20, 2016, and Nov. 3, 2016. The final public comment period closed on Oct. 27 for the rules published on Sept. 15, except for the two rules which were republished on Oct. 3, for which the comment period ended on Nov.10. 2016. Today, the Department will present Orders of Rulemaking for the proposed underground storage tank rules. The Orders of Rulemaking are rule-specific, with each order providing a summary of the comments received regarding each rule, the responses to those comments and a description of any changes the Department made to the rule in response to the comments received. Following the presentation of the Orders of Rulemaking, the Commission will vote to approve the orders as presented, approve with modification, or disapprove. Heather Peters, of the Department’s Hazardous Waste Program, will present the Orders of Rulemaking on behalf of the Department. After the department’s presentation on the recommended changes to the rule text in response to comments, the commission will consider adoption of the final Orders of Rulemaking for each rule.

MISSOURI HAZARDOUS WASTE MANAGEMENT COMMISSION CERTIFICATION OF ADOPTION OF ORDERS OF RULEMAKING

December 15, 2016

“I move that the Commission adopt the Orders of Rulemaking for the proposed amendment of 10 CSR 26-2.(010, 011, 012, 013, 019, 020, 021, 022, 030, 031, 032, 033, 034, 035, 036, 040, 041, 042, 043, 044, 048, 050, 052) published in the September 15, 2016, Missouri Register; the proposed new rules 10 CSR 26-2.(013, 035, 036) published in the September 15, 2016, Missouri Register; and the proposed new rules 10 CSR 26-2.(046, 047) published in the October 3, 2016, Missouri Register, and that the Department proceed to file the Orders with the Joint Committee on Administrative Rules and the Secretary of State.”

“I move that the Commission adopt with modifications the Orders of Rulemaking

for the proposed amendment of 10 CSR 26-2.(010, 011, 012, 013, 019, 020, 021, 022, 030, 031, 032, 033, 034, 035, 036, 040, 041, 042, 043, 044, 048, 050, 052) published in the September 15, 2016, Missouri Register; ; the proposed new rules 10 CSR 26-2.(013, 035, 036) published in the September 15, 2016, Missouri Register and the proposed new rules 10 CSR 26-2.(046, 047) published in the October 3, 2016, Missouri Register, and that the Department proceed to file the Orders with the Joint Committee on Administrative Rules and the Secretary of State.”

“I move that the Commission not adopt the Orders of Rulemaking for the proposed

amendment of 10 CSR 26-2.(010, 011, 012, 013, 019, 020, 021, 022, 030, 031, 032, 033, 034, 035, 036, 040, 041, 042, 043, 044, 048, 050, 052) published in the September 15, 2016, Missouri Register; ; the proposed new rules 10 CSR 26-2.(013, 035, 036) published in the September 15, 2016, Missouri Register and the proposed new rules 10 CSR 26-2.(046, 047) published in the October 3, 2016, Missouri Register, and that the Department not proceed to file the Orders with the Joint Committee on Administrative Rules and the Secretary of State.”

In accordance with Section 536.016 RSMo, the members of the Hazardous Waste Management Commission certify the adoption of the Orders of Rulemaking to amend 20 rules and adopt 5 new rules in Title 10 Division 26 of the Code of State Regulations. We further certify that this rulemaking is necessary to carry out the purposes of the Revised Statutes of Missouri.

Elizabeth Aull, Chairman Jamie Frakes, Vice-Chairman Michael Foresman, Commissioner Mark Jordan, Commissioner Charles Adams, Commissioner

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Missouri Hazardous Waste Management Commission

Response to Comments and

Adoption of Order of Rulemaking

Dec. 15, 2016

State Program Approval (SPA)• Needed for Missouri to run Missouri’s

program

• Needed to keep any state-specific rules or determinations

• IF new rules are not promulgated, SPA very likely in jeopardy

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Commenters• Comments provided by:

– Executive Director, Missouri Petroleum Storage Tank Insurance Fund (PSTIF)

– One larger petroleum company

– Missouri Petroleum Marketers and Convenience Store Association (MPCA)

– Attorney representing STL Fuel Company (Lambert-St. Louis International Airport)

– One small station/garage owner

Proposed Rules

• Sept. 15, 2016 - Proposed amendments published in Missouri Register (All 25 originally)

• Oct. 20, 2016 - Public Hearing with HWMC

• Oct. 27, 2016 - End of Public Comment Period

• Nov. 3, 2016 - Public Hearing with HWMC for two re-printed rules (10 CSR 26-2.046 and 2.047)

• Nov. 10, 2016 - End of Public Comment Period for two separate rules (10 CSR 26-2.046 and 2.047)

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Summary of Response to Comments• Response to comments document:

– 106 individual comments (plus MPCA’s support of the 87 submitted by PSTIF and four submitted by a large oil company)

– 148 response to comments (some comments applied to multiple rules)

• Six “significant” comments from PSTIF

• One significant topic from Lambert-St. Louis International Airport

• Most other comments were regarding wording, phrasing, semantics and implementation of rules or were outside of the scope of the rules

Changes Made In Response• Approximately 65 changes made on 17 of the

25 rules

• Most dealt with language, semantics or rule structure

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Definitions of Underground Storage Tanks (UST)

Federal (280.12) - 1986

UST means any one or combination of tanks (including underground pipesconnected thereto) that is used to contain an accumulation of regulated substances, and the volume of which (including the volume of underground pipes connected thereto) is 10 percent or more beneath the surface of the ground

State (319.100) - 1989

UST means any one or combination of tanks, including pipes connected thereto, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground

“State Specific” Proposals• New Piping Installation Notice

– Comment suggested removal of this language• Withdrew proposal to require notification prior to

installing new or replacement piping

• Interior lining recordkeeping– Comment suggested removal of this language

• Interior lining “package” not approved without this recordkeeping component

• Retained this language

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Impact of New Testing Rules

• Comment suggested new options/equipment on the horizon– Suggested delay of rule

• Per EPA, must have the authority in rule

• Implementation – 2019/2020– How to implement is the question

Response to Failed Tests• Discussed in July 21 meeting and contractor

outreach trainings

• Already encounter– Broken spill basins

– Broken overfill devices

– Non-functioning release detection equipment

– Compromised containment sumps*Alone, these are not a basis for suspected release

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Response to Failed Tests (cont.)• Implementation

• Can create guidance documents

• Can create written determinations*NOT a new finding or response

Fiscal Note Not Created• Comments said no fiscal note on federal

changes

• Rules referenced federal fiscal note– Assessment of the potential costs, benefits and

other impacts of the final revisions to EPA’s UST Regulations

• Amended fiscal note added to each rule– Used federal calculations ($715/facility)

– Used Missouri facility count (3,420 facilities)

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Opposed Double-Wall Tank Rule• May deter system replacement

• Proof of reduction in leaks

• “De Facto” ban on steel tanks

Opposed Double-Wall Tank Rule (cont.)• If not implemented, SPA/grant may be lost

• Difficult to track and quantify releases that do not occur

• Not a “de facto” ban on steel tanks– More double-walled steel tanks installed in each of

the last three years than single-walled

– Last three years, approximately only 10% of tanks installed are steel

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Airport Hydrant/Field Constructed Tanks

• Requested more time to close

• Requested not to be subject to operational requirements

• Given some additional time

• Additional time may be considered under “enforcement discretion” if warranted

• Site likely already complies

Recommendation

• Adopt all 25 Orders of Rulemaking, including modifications recommended by program staff

– 20 amended rules

– Five new rules

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Rulemaking Schedule• Dec. 15, 2016 - Final adoption of rules by

HWMC

• Dec. 23, 2016 - Orders of Rulemaking to JCAR

• Jan. 25, 2017 - File with Secretary of State

• March 1, 2017 - Orders of Rulemaking to be published in the Missouri Register

• April 30, 2017 - Rulemaking effective

QUESTIONS ?

RULE LANGUAGE

Volume 41, Number 18Pages 1123–1252September 15, 2016

M I S S O U R IR E G I S T E R

Jason KanderSecretary of State

S A L U S P O P U L I S U P R E M A L E X E S T O“ T h e w e l f a r e o f t h e p e o p l e s h a l l b e t h e s u p r e m e l a w . ”

personnel records;12. Information Systems is responsible for providing and

improving information and communication services used by employ-ees of MoDOT through the operation and maintenance of local andstatewide data networks and telephone services. Information Systemsstaff provide applications programming expertise to support the engi-neering, financial, operational, and general information needs ofMoDOT;

13. Maintenance is responsible for assisting and supportingmaintenance activities for the preservation and operation of the statehighway system;

14. Motor Carrier Services provides information, credentials,and permits and enforces safety for businesses and individuals inter-ested in commercial property and passenger-carrying operations onpublic highways in and through Missouri;

15. Multimodal Operations is responsible for administeringstate and federal programs that support and develop non-highwaypassenger and freight transportation, which include aviation, rail-roads, transit, and waterways. Major programs include capitalimprovements, operating support, technical assistance, safety out-reach, and identifying freight efficiencies/opportunities;

16. Risk and Benefits Management is responsible for the man-agement and implementation of medical and life insurance plans fordepartment employees and retirees; administration of MoDOT’s self-insurance operations, including workers’ compensation, fleet liabili-ty, general liability, and property damage recovery; and administra-tion of the safety and health programs;

17. Traffic and Highway Safety is responsible for the safe andefficient movement of people and goods on the state highway system.This includes supporting signing, striping, traffic signals, lighting,intelligent transportation systems (ITS), roadway access, and safetymanagement programs throughout the state. Traffic and HighwaySafety is responsible for the coordination of traffic management,incident management, traveler information services, and the radioand emergency communication systems; and is also responsible forplanning, directing, and coordinating the solicitation, review, award,and monitoring of federal highway safety grant contracts and concen-trates their efforts in the areas of education, enforcement, and engi-neering to prevent deaths and injuries from motor vehicle accidents;and

18. Transportation Planning is responsible for [collecting, man-aging, and analyzing data to provide a single source of infor-mation to support MoDOT’s decision process related to main-tenance, construction, and reconstruction of the state trans-portation system; developing and tracking the five- (5-) YearHighway and Bridge Construction Schedule and theStatewide Transportation Improvement Program; mapping;and developing] planning and coordinating a long range, total trans-portation system for MoDOT. This includes developing the longrange transportation plan; developing, coordinating, and trackingthe five- (5-) year Statewide Transportation ImprovementProgram; mapping; collecting, managing, and analyzing data toprovide a single source of information to support MoDOT’s deci-sion process related to maintenance, construction, and reconstruc-tion of the state transportation system; leading organizational per-formance management, including the production of MoDOT’squarterly performance management document, Tracker; andfacilitating process improvement, customer satisfaction, and prob-lem solving teams to improve operational performance.

(3) How to Obtain Information. The official residence of the com-mission, as well as the offices of the director, chief counsel, commis-sion secretary, and divisions of MoDOT, is the Missouri Departmentof Transportation Building in Jefferson City, Missouri. Writteninquiries by the public should be addressed to the CommissionSecretary, Missouri Department of Transportation Building, PO Box270, Jefferson City, MO 65102. The general information telephonenumber is (573) 751-2551. Inquiries may be made via email to com-

[email protected]. Information from any district office of thedepartment may be obtained in person, by writing, or by telephoningthe District Engineer, Missouri Department of Transportation:Northwest District, 3602 North Belt Highway, St. Joseph, MO64506-1399, (816) 387-2350; Northeast District, 1711 SouthHighway 61, [PO Box 1067,] Hannibal, MO 63401, (573) 248-2490; Kansas City District, 600 NE Colbern Rd., Lee’s Summit,MO 64086, (816) 622-6500; Central District, 1511 MissouriBoulevard, PO Box 718, Jefferson City, MO 65102, (573) 751-3322;St. Louis District, 1590 Woodlake Drive, Chesterfield, MO 63017,(314) 275-1500; Southwest District, 3025 East Kearney, PO Box868, Springfield, MO 65801, (417) 895-7600; and SoutheastDistrict, 2675 N. Main Street, PO Box 160, Sikeston, MO 63801,(573) 472-5333.

AUTHORITY: section 536.023, RSMo Supp. 2013. Original rule filedOct. 14, 1976, effective March 1, 1977. For intervening history,please consult the Code of State Regulations. Amended: Filed Aug.4, 2016.

PUBLIC COST: This proposed amendment will not cost state agen-cies or political subdivisions more than five hundred dollars ($500)in the aggregate.

PRIVATE COST: This proposed amendment will not cost private enti-ties more than five hundred ($500) in the aggregate.

NOTICE TO SUBMIT COMMENTS: Anyone may file a statement insupport of or in opposition to this proposed amendment with theMissouri Department of Transportation, Pam Harlan, Secretary tothe Commission, PO Box 270, Jefferson City, MO 65102. To be con-sidered, comments must be received within thirty (30) days after pub-lication of this notice in the Missouri Register. No public hearing isscheduled.

Title 10—DEPARTMENT OF NATURAL RESOURCESDivision 26—Petroleum and Hazardous Substance

Storage TanksChapter 2—Underground Storage Tanks—Technical

Regulations

PROPOSED AMENDMENT

10 CSR 26-2.010 Applicability. The commission is amending sec-tions (2) and (3) and adding a new section (4) to this rule.

PURPOSE: There are two (2) primary purposes for this rulemaking.The first is to open UST rules in Title 10, Division 26 of the Code ofState Regulations to make the necessary changes required by theU.S. Environmental Protection Agency (EPA). The 2005 EnergyPolicy Act required either financial responsibility for UST installersand manufacturers or secondary containment for all new systems. Inaddition, last October, EPA adopted changes to the federal UST reg-ulations that need to be incorporated into state regulation. This rule-making will make the necessary changes to comply with these EPAgrant requirements and to incorporate the changes made to the fed-eral regulations.

The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed new system require-ments, and incorporate new technologies. The department will alsotake this opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

(2) The following UST systems are excluded from the requirementsof this chapter:

(A) Any UST system holding hazardous wastes listed or identified

Page 1133September 15, 2016Vol. 41, No. 18 Missouri Register

in the Missouri Hazardous Waste Management Law, sections260.350–260.434, RSMo, and the rules promulgated thereunder ora mixture of hazardous waste and other regulated substances, exceptfor [waste] used oil as defined in 10 CSR 25-11.279;

(3) [Deferrals] Partial Exclusions. Rules 10 CSR 26-2.020–10 CSR26-2.053 and closure requirements in 10 CSR 26-2.060–10 CSR 26-2.064 do not apply to any of the following types of UST systems:

(A) Wastewater treatment tank systems not covered in subsection(2)(B) above;

(C) Any UST system that is part of an emergency generator systemat nuclear power generation facilities [regulated] licensed by theNuclear Regulatory Commission [under] and subject to theNuclear Regulatory Commission requirements regarding designand quality criteria, including but not limited to, 10 CFR Part50[, Appendix A];

(D) Aboveground tanks associated with [A]airport hydrant fueldistribution systems; and

(E) [UST systems with] Aboveground tanks associated withfield-constructed tanks.

(4) Previously deferred UST systems. Previously deferred airporthydrant fuel distribution systems, tank systems, and field con-structed tanks systems must meet one (1) of the following optionsfor compliance:

(A) Option 1. Owners and operators must document that thepreviously deferred UST is appropriate for continued use by pro-viding proof of compliance with 10 CSR 26-2.020 through 10CSR 26-2.048; or

(B) Option 2. Permanent closure of the UST system no laterthan July 1, 2019.

(C) New UST systems installed after July 1, 2017, must meetall requirements at installation.

AUTHORITY: sections 319.100, 319.105, 319.107, 319.111, and319.114, RSMo 2000, and sections 319.109 and 319.137, RSMoSupp. [2010] 2013. This rule originally filed as 10 CSR 20-10.010.Original rule filed April 2, 1990, effective Sept. 28, 1990. Amended:Filed Jan. 2, 1996, effective Aug. 30, 1996. Moved and amended:Filed April 15, 2011, effective Dec. 30, 2011. Amended: Filed Aug.15, 2016.

PUBLIC COST: This proposed amendment will not cost state agen-cies or political subdivisions more than five hundred dollars ($500)in the aggregate. The public entity fiscal cost impacts for compliancewith the federal standards are accounted for in the federal rulemak-ings.

PRIVATE COST: This proposed amendment will not cost private enti-ties more than five hundred dollars ($500) in the aggregate. The pri-vate entity fiscal cost impacts for compliance with the federal stan-dards are accounted for in the federal rulemakings.

NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.

Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the Hazardous WasteProgram at PO Box 176, Jefferson City, MO 65102-0176. To be accept-ed, written comments must be postmarked by midnight on October 27,2016. Email comments shall be sent to [email protected].

Please direct all inquiries to the Rules Coordinator of the HazardousWaste Program, at 1730 E. Elm, Jefferson City, MO 65102, telephone(573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.011 Interim Prohibition for Deferred UndergroundStorage Tank Systems. The commission is proposing to delete sec-tions (2) and (3) of this rule.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed new system instal-lation requirements, outline the requirements for new USTs at mari-nas, and incorporate new technologies. The department will alsotake this opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

[(2) Notwithstanding section (1) of this rule, a UST systemwithout corrosion protection may be installed at a site thatis determined by a corrosion expert not to be corrosiveenough to cause it to have a release due to corrosion duringits operating life. Owners and operators must maintainrecords that demonstrate compliance with the requirementsof this section for the remaining life of the tank.]

[(3)The determination in section (2) of this rule should complywith the following recommended practice: NACE InternationalRP 0285-2002, Corrosion Control of Underground StorageTank Systems by Cathodic Protection, revised 2002. Thisdocument is incorporated by reference without any lateramendments or modifications. To obtain a copy contact NACEInternational, Box 218340, Houston, TX 77218-8340, (713)492-0535, www.nace.org.]

AUTHORITY: section 319.105, RSMo 2000, and section 319.137,RSMo Supp. [2010] 2013. This rule originally filed as 10 CSR 20-10.011. Original rule filed April 2, 1990, effective Sept. 28, 1990.Moved and amended: Filed April 15, 2011, effective Dec. 30, 2011.Amended: Filed Aug. 15, 2016.

PUBLIC COST: This proposed amendment will not cost state agen-cies or political subdivisions more than five hundred dollars ($500)in the aggregate. The public entity fiscal cost impacts for compli-ance with the federal standards are accounted for in the federal rule-makings.

PRIVATE COST: This proposed amendment will not cost private enti-ties more than five hundred dollars ($500) in the aggregate. The private

Page 1134 Proposed RulesSeptember 15, 2016

Vol. 41, No. 18

entity fiscal cost impacts for compliance with the federal standardsare accounted for in the federal rulemakings.


Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. Tobe accepted, written comments must be postmarked by midnight onOctober 27, 2016. Email comments shall be sent [email protected]. Please direct all inquiries to the RulesCoordinator of the Hazardous Waste Program, at 1730 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.012 Definitions. The commission is proposing toamend section (1) of this rule.


The second reason is to incorporate state-specific changes. Thedepartment will also take this opportunity to clarify ambiguous orconfusing language and update industry standard referenced in theregulations.

(1) Many definitions relevant to this rule are set forth in the under-ground storage tank (UST) law in section 319.100, RSMo. [Theregulations set forth in 40 CFR part 280.12, July 1, 2010,as published by the Office of the Federal Register, NationalArchives and Records Administration, Superintendent ofDocuments, Pittsburgh, PA 15250-7954, are incorporatedby reference. This rule does not incorporate any subsequentamendments or additions. The definitions set forth in 40CFR 280.12, are subject to the following additions, modifi-cations, substitutions, or deletions in the subsections:]

(A) Definitions beginning with the letter A. 1. “Aboveground release” means any release to the surface

of the land or to surface water. This includes, but is not limitedto, releases from the aboveground portion of a UST system andaboveground releases associated with overfills and transfer oper-ations as the regulated substance moves to or from a UST system.

2. “Airport hydrant fuel distribution system” (also called

airport hydrant system) means a UST system which fuels aircraftand operates under high pressure that typically terminates intoone (1) or more hydrants (fill stands). The airport hydrant systembegins where fuel enters one (1) or more tanks from an externalsource such as a pipeline, barge, rail car, or other motor fuel car-rier.

3. “Ancillary equipment” means any devices used to distrib-ute, meter, or control the flow of regulated substances to andfrom a UST including, but not limited to, such devices as piping,fittings, flanges, valves, and pumps.

[1.]4. “Annual” means recurring, done, or performed everythree hundred sixty-five (365) days.

[2.]5. “Annually” means at least once every three hundredsixty-five (365) days[;].

(B) Definitions beginning with the letter B. [(Reserved);]1. “Belowground release” means any release to the subsur-

face of the land or to groundwater. This includes, but is not lim-ited to, releases from the belowground portions of a UST systemand belowground releases associated with overfills and transferoperations as the regulated substances move to or from a UST.

2. “Beneath the surface of the ground” means beneath theground surface or otherwise covered with earthen materials.

3. “Biannually” or “biannual” means recurring, done, orperformed every six (6) months.

(C) Definitions beginning with the letter C. 1. “Cathodic protection” is a technique to prevent corrosion

of a metal surface by making that surface the cathode of an elec-trochemical cell. For example, a tank system can be cathodicallyprotected through the application of either galvanic anodes orimpressed current.

2. “Cathodic protection tester” means a person who candemonstrate an understanding of the principles and measure-ments of all common types of cathodic protection systems asapplied to buried or submerged metal piping and tank systems.At a minimum, such persons must be certified by NACEInternational, the Steel Tank Institute, or the International CodeCouncil.

[1.]3. [To the definition of] “CERCLA” [at 40 CFR280.12, incorporated in this rule, add the words “] means theComprehensive Environmental Response, Compensation, andLiability Act of 1980, as amended by the Superfund Amendmentsand Reauthorization Act of 1986[” after the words “as amend-ed”;].

4. “Compatible” means the ability of two (2) or more sub-stances to maintain their respective physical and chemical prop-erties upon contact with one another for the design life of thetank system under conditions likely to be encountered in theUST.

5. “Connected piping” means all piping including valves,elbows, joints, flanges, and flexible connectors attached to a USTsystem through which regulated substances flow. For the pur-pose of determining how much piping is connected to any indi-vidual UST system, the piping that joins two (2) UST systemsshould be allocated equally between them.

6. “Consumptive use” with respect to heating oil means con-sumed on the premises for heating purposes, typically in theoperation of heating equipment, boilers, and furnaces.

7. “Containment sump” means a liquid-tight container thatprotects the environment by containing leaks and spills of regu-lated substances from piping, dispensers, pumps, and relatedcomponents in the containment area.

8. “Corrosion expert” means a person who, by reason ofthorough knowledge of the physical sciences and the principles ofengineering and mathematics acquired by a professional educa-tion and related practical experience, is qualified to engage in thepractice of corrosion control on buried or submerged metal pip-ing systems and metal tanks. Such a person must be certified byNACE International as a CP Technologist, CP Specialist, or


Senior Corrosion Technologist, or for sti-P3® tanks, a Steel TankInstitute certified Cathodic Protection Inspector.

(D) Definitions beginning with the letter D.1. “De minimus” means—

A. Any volume of regulated substance(s) contained in a tankwith a capacity of less than one hundred ten (110) gallons; or

B. A very low concentration of regulated substances; orC. Any volume of regulated substance(s) contained in an

emergency backup tank that holds regulated substances for only ashort period of time and is expeditiously emptied after use.(Comment: De minimus tanks include: swimming pools, permittedwastewater treatment facilities, and chlorinated, potable water stor-age tanks. An oil-water separator is not a de minimus system unlessthe tank has a less than one hundred ten (110) gallon capacity.)

2. “Department,” unless otherwise stated, means the MissouriDepartment of Natural Resources[;].

3. “Dielectric material” means a material that does not con-duct direct electrical current. Dielectric coatings are used to elec-trically isolate UST systems from the surrounding soils.Dielectric bushings are used to electrically isolate portions of theUST system (e.g., tank from piping).

4. “Dispenser” means equipment located aboveground thatdispenses regulated substances from the UST system.

5. “Dispenser system” means the dispenser and the equip-ment necessary to connect the dispenser to the underground stor-age tank system.

6. “Double-walled piping” is a pipe within a pipe, where theouter wall and inner walls are separated, the inner pipe is com-pletely contained within the outer pipe, except for any single wallfittings or ends, which must be open to a leak-tight containmentsump, and the space between the two (2) pipes can be used tomonitor the integrity of both the inner and outer pipes.

(E) Definitions beginning with the letter E.1. [In the definition for “existing tank system” in 40 CFR

280.12 incorporated in this rule, substitute the date“September 28, 1990” for the date “December 22, 1988”;]“Electrical equipment” means underground equipment that con-tains dielectric fluid that is necessary for the operation of equip-ment such as transformers and buried electrical cable.

2. “Excavation zone” means the volume containing the tanksystem and backfill material bounded by the ground surface,walls, and floor of the pit and trenches into which the UST sys-tem is placed at the time of installation.

(F) Definitions beginning with the letter F. [(Reserved);]1. “Farm tank” is a tank located on a tract of land devoted

to the production of crops or raising animals, including fish, andassociated residences and improvements. A farm tank must belocated on the farm property. Farm includes fish hatcheries,rangeland, and nurseries with growing operations.

2. “Field-constructed tank” means an underground tankconstructed in the field or location where it will be used to storea regulated substance. For example, a tank constructed of con-crete that is poured on-site or a steel erected tank. This does notinclude field modifications to a factory-built tank.

3. “Flow-through process tank” is a tank that forms an inte-gral part of a production process through which there is a steady,variable, recurring, or intermittent flow of materials during theoperation of the process. Flow-through process tanks do notinclude tanks used for the storage of materials prior to theirintroduction into the production process or for the storage of fin-ished products or by-products from the production process.

4. “Free product” refers to a regulated substance that ispresent as a non-aqueous phase liquid (e.g., liquid not dissolvedin water).

(G) Definitions beginning with the letter G. [(Reserved);]1. “Gathering lines” means any pipeline, equipment, facili-

ty, or building used in the transportation of oil or gas during oilor gas production or gathering operations.

(H) Definitions beginning with the letter H.1. [This definition shall apply in lieu of the definition of

“hazardous substance UST system” in 40 CFR 280.12incorporated in this rule.] “Hazardous substance UST system”means a UST system that contains a hazardous substance defined inSection 101(14) of the CERCLA (but not including any substanceregulated as a hazardous waste under the Missouri Hazardous WasteManagement Law, sections 260.350–260.434, RSMo) or any mix-ture of these substances and petroleum, and which is not a petroleum[UST systems] storage tank[;].

2. “Heating oil” means petroleum that is No. 1, No. 2, No.4—light, No. 4—heavy, No. 5—light, No. 5—heavy, and No. 6technical grades of fuel oil; other residual fuel oils (includingNavy Special Fuel Oil and Bunker C); and other fuels when usedas substitutes for one (1) of these fuel oils. Heating oil is typicallyused in the operation of heating equipment, boilers, or furnaces.

3. “Hydraulic lift tank” means a tank holding hydraulicfluid for a closed-loop mechanical system that uses compressedair or hydraulic fluid to operate lifts, elevators, and other similardevices.

(I) Definitions beginning with the letter I.[1. The definition for “implementing agency” in 40 CFR

280.12 is not incorporated into this rule.] [2.]1. The term “in-operation” means input or output that

occurs on a regular basis for the tank’s intended purpose. [3.]2. The terms “in-service” and “in-use” are equivalent and

mean that the tank system contains more than one inch (1") of a reg-ulated substance or residue or three-tenths percent (0.3%) by weightof the total capacity of the UST system of regulated substance. Atank is considered to be in-service and in-use beginning with the firstinput of a regulated substance into the tank system.

[4.]3. The term “installer” means any person, partnership, cor-poration, company, business, firm, society, or association thatinstalls part or all of an underground storage tank system[;].

(J) Definitions beginning with the letter J. (Reserved)[;].(K) Definitions beginning with the letter K. (Reserved)[;].(L) Definitions beginning with the letter L. [(Reserved);]

1. “Liquid trap” means sumps, well cellars, and other trapsused in association with oil and gas production, gathering, andextraction operations (including gas production plants), for thepurpose of collecting oil, water, and other liquids. These liquidtraps may temporarily collect liquids for subsequent dispositionor reinjection into a production or pipeline stream, or may col-lect and separate liquids from a gas stream.

(M) Definitions beginning with the letter M. 1. “Maintenance” means the normal operational upkeep to

prevent an underground storage tank system from releasing reg-ulated substances.

[1.]2. “Month,” unless otherwise stated, means thirty (30) days.[2.]3. “Monthly” means at least once every thirty (30) days[;].4. “Motor fuel” means a complex blend of hydrocarbons

typically used in the operation of a motor engine, such as motorgasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or anyblend containing one (1) or more of these substances (for exam-ple: motor gasoline blended with alcohol).

(N) Definitions beginning with the letter N.1. [In the definition for “new tank system” in 40 CFR

280.12 incorporated in this rule, substitute the date“September 28, 1990” for the date “December 22, 1988”;]“Noncommercial purposes” with respect to motor fuel means notfor resale.

(O) Definitions beginning with the letter O.1. “On the premises where stored,” with respect to heating

oil, means UST systems located on the same property where thestored heating oil is used.

[1.]2. [In the definition for “operational life” in 40 CFR280.12 incorporated in this rule, substitute] “Operationallife” refers to the period beginning when installation of the tank


Vol. 41, No. 18

system has commenced until the time the tank system is properlyclosed under [“]10 CSR 26-2.060–10 CSR 26-2.064[” for“Subpart G”].

[2. The terms “out-of-service” and “out-of-use” areequivalent and mean that the tank system has been emptiedso that no more than one inch (1") of regulated substanceor residue or three-tenths percent (0.3%) by weight of thetotal capacity of the UST system remains.]

3. [The definition for “owner” in 40 CFR 280.12 is notincorporated in this rule, and the definition in section319.100(9) RSMo shall be used instead;] “Operator” meansany person in control of, or having responsibility for, the dailyoperation of a tank.

4. The terms “out-of-service” and “out-of-use” are equiva-lent and mean that the tank system has been emptied so that nomore than one inch (1") of regulated substance or residue orthree-tenths percent (0.3%) by weight of the total capacity of theUST system remains.

5. “Overfill release” is a release that occurs when a tank isfilled beyond its capacity, resulting in the discharge of the regu-lated substance to the environment.

6. “Owner” means any person who owned an undergroundstorage tank immediately before the discontinuation of its use ifnot in use on August 28, 1989, or any person who owns an under-ground storage tank in use on or after August 28, 1989, excludingsecured interest or lienholders exempted under section 319.100(9)RSMo.

(P) Definitions beginning with the letter P.1. [The definition for “person” in 40 CFR 280.12 is not

incorporated in this rule and the definition in section319.100(11), RSMo, shall be used instead;] “Person” meansany individual, trust, firm, joint stock company, corporation,including a government corporation, partnership, association,the state and its political subdivisions, or any interstate body.“Person” also includes any consortium, joint venture, commer-cial entity, and the government of the United States.

2. “Petroleum” means gasoline, kerosene, diesel, lubricants,and fuel oil. This definition includes motor fuels, aviation gas, jetfuels, distillate fuel oils, residual fuel oils, and petroleum sol-vents.

3. “Petroleum storage tank,” in this chapter, means anunderground storage tank system used to contain an accumula-tion of petroleum.

4. “Pipe or piping” means a hollow cylinder or tubular con-duit that is constructed of non-earthen materials.

5. “Pipeline facilities” (including gathering lines) are newand existing pipe rights-of-way and any associated equipment,facilities, or buildings.

(Q) Definitions beginning with the letter Q. (Reserved)[;].(R) Definitions beginning with the letter R.

1. [The definition for “regulated substance” in 40 CFR280.12 is not incorporated in this rule and the definition insection 319.100(14), RSMo, shall be used instead.]“Regulated substance” includes:

A. Any substance defined in Section 101(14) of the federalComprehensive Environmental Response, Compensation, andLiability Act (P.L. 96-510), as amended, but not including a sub-stance regulated as a hazardous waste under Subtitle C of thefederal Resource Conservation and Recovery Act of 1976 (P.L.94-580), as amended; and

B. Petroleum, including crude oil or any fraction thereof,which is liquid at standard conditions of temperature and pres-sure, sixty degrees (60˚) Fahrenheit and fourteen and seven-tenths (14 7/10) pounds per square inch absolute, respectively;and

C. Any substance adopted by rule in accordance with fed-eral laws referenced by Section 101(14) of the federalComprehensive Environmental Response, Compensation, and

Liability Act (P.L. 96-510).2. [The definition for “release” in 40 CFR 280.12 is not

incorporated in this rule and the definition in section319.100(15), RSMo, shall be used instead.] “Release”includes, but is not limited to, any spilling, leaking, emitting, dis-charging, escaping, leaching, or disposing from a petroleum stor-age tank into groundwater, surface water, or subsurface soils.

3. “Release detection” means determining whether a releaseof a regulated substance has occurred from the UST system intothe environment or a leak has occurred into the interstitial spacebetween the UST system and its secondary barrier or secondarycontainment around it.

4. “Repair” means to restore to proper operating conditiona tank, pipe, spill prevention equipment, overfill preventionequipment, corrosion protection equipment, release detectionequipment, or other UST system component that has caused arelease of product from the UST system or has failed to functionproperly.

5. “Replaced” or “replacement” means— A. For a tank - to remove a tank and install another tank; B. For piping - to remove fifty percent (50%) or more of

piping and install other piping, excluding connectors, connectedto a single tank or single compartment. For tanks with multiplepiping runs, this definition applies independently to each pipingrun.

6. “Residential tank” is a tank located on property used pri-marily for dwelling purposes.

[3.]7. “Routinely contains regulated substance” means that aregulated substance regularly passes through the piping, but does notnecessarily mean that the piping must continuously hold a regulatedsubstance. Satellite lines, gravity piping, and remote fill lines,including lines from aboveground storage tank(s) to undergroundstorage tank(s), all routinely contain a regulated substance. Vaporlines, including vent lines and vapor recovery lines, are not includ-ed[;].

(S) Definitions beginning with the letter S.1. “SARA” means the Superfund Amendments and

Reauthorization Act of 1986.2. “Secondary containment” or “Secondarily contained”

means a release prevention and release detection system for atank and/or piping. This system has an inner and outer barrierwith an interstitial space that is monitored for leaks. This termincludes containment sumps when used for interstitial monitor-ing of piping.

[1.]3. [In lieu of the definition for “septic tank” in 40CFR 280.12, the definition for] “[s]Septic tank” [shall be]means any watertight, covered receptacle designed and constructedto receive the discharge of sewage, separate solids from liquid, digestorganic matter, store liquids through a period of detention, and allowthe clarified liquids to discharge to a soil treatment system[;].

4. “Storm-water or wastewater collection system” meanspiping, pumps, conduits, and any other equipment necessary tocollect and transport the flow of surface water run-off resultingfrom precipitation, or domestic, commercial or industrial waste-water to and from retention areas or any areas where treatmentis designated to occur. The collection of storm water and waste-water does not include treatment except where incidental to con-veyance.

5. “Surface impoundment” is a natural topographic depres-sion, man-made excavation, or diked area formed primarily ofearthen materials (although it may be lined with man-madematerials) that is not an injection well.

(T) Definitions beginning with the letter T.1. “Tank” is a stationary device designed to contain an accu-

mulation of regulated substances and constructed of non-earthenmaterials (e.g., concrete, steel, plastic) that provide structuralsupport.

[1.]2. “Triennial” means recurring, done, or performed every


one thousand ninety-five (1,095) days.[2.]3. “Triennially” means at least once every one thousand

ninety-five (1,095) days.(U) Definitions beginning with the letter U.

1. [In the definition of “upgrade” in 40 CFR 280.12incorporated in this rule, substitute the words “regulatedsubstance” for the word “product.”] “Under-dispenser con-tainment” or “UDC” means a containment sump underneath adispenser system designed to prevent dispenser system leaks fromreaching soil or groundwater.

2. [The definition of “underground storage tank” or“UST” found in 40 CFR 280.12 is not incorporated in thisrule, and the definition in section 319.100(16), RSMo, shallbe used instead;] “Underground area” means an undergroundroom, such as a basement, cellar, shaft, or vault, providingenough space for physical inspection of the exterior of the tanksituated on or above the surface of the floor.

3. “Underground release” means any belowground release. 4. “Underground storage tank” is defined in section

319.100, RSMo and means any one (1) or combination of tanks,including pipes connected thereto, containing regulated product,the volume of which is ten percent (10%) or more beneath thesurface of the ground, except as exempted in section 319.100(16),RSMo.

5. “Upgrade” means the addition or retrofit of some systemssuch as cathodic protection, lining, spill and overfill controls toimprove the ability of an underground storage tank system to pre-vent the release of regulated substance.

6. “UST system” or “Tank system” means an undergroundstorage tank, all connected piping, ancillary equipment, and con-tainment system, if any.

(V) Definitions beginning with the letter V. (Reserved)[;].(W) Definitions beginning with the letter W. [(Reserved);]

1. “Wastewater treatment tank” means a tank that isdesigned to receive and treat an influent wastewater throughphysical, chemical, or biological methods.

(X) Definitions beginning with the letter X. (Reserved)[;].(Y) Definitions beginning with the letter Y. (Reserved)[;].(Z) Definitions beginning with the letter Z. (Reserved).

AUTHORITY: sections 319.100, 319.105, 319.107, 319.111, and319.114, RSMo 2000, and sections 319.109 and 319.137, RSMoSupp. [2010] 2013. This rule originally filed as 10 CSR 20-10.012.Original rule filed April 2, 1990, effective Sept. 28, 1990. For inter-vening history, please consult the Code of State Regulations.Amended: Filed Aug. 15, 2016.




Any person may submit written comments on this rule action.

Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.be postmarked by midnight on October 27, 2016. Email commentsshall be sent to [email protected]. Please direct allinquiries to the Rules Coordinator of the Hazardous Waste Program,at 1730 E. Elm, Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED RULE

10 CSR 26-2.013 UST Systems with Field-Constructed Tanks andAirport Hydrant Fuel Distribution Systems

PURPOSE: This rule contains the new requirements for the previous-ly deferred field-constructed tanks and airport hydrant fuel distribu-tion systems.

(1) Applicability. This rule applies to owners and operators of field-constructed tanks and airport hydrant fuel distribution systems.

(2) Deadline for compliance. Owners and operators of existingunderground storage tank (UST) systems with field-constructed tanksor airport hydrant fuel distribution systems must comply with all ofthe requirements of 10 CSR 26-2.010 through 10 CSR 26-2.083, thefinancial responsibility requirements in 10 CSR 26-3, and operatortraining in 10 CSR 100-6.

(A) Immediately upon installation for any new UST systemsinstalled after July 1, 2017.

(B) By July 1, 2019, for existing systems, except where suchrequirements are specifically excluded or amended by this rule.

(3) Corrosion protection. UST system components that routinelycontain product and are in contact with an electrolyte, including soil,backfill, or water, must meet one (1) of the following:

(A) Performance Standards for New UST Systems, as defined by10 CSR 26-2.020; or

(B) Be constructed of metal and cathodically protected, with thecathodic protection system complying with 10 CSR 26-2.031.Unprotected metal tanks must pass an integrity test, in accordancewith 10 CSR 26-2.021 and 10 CSR 26-2.031, prior to the additionof cathodic protection. Unprotected steel piping cannot be upgradedand must be replaced.

(4) Spill and overfill prevention equipment. UST systems must beupgraded with the installation of spill and overfill prevention, inaccordance with 10 CSR 26-2.020 and 10 CSR 26-2.030, exceptwhere “delivery” occurs through a dedicated pipeline permanentlyconnected to the UST system(s). For these systems, owners and oper-ators must have an alarm system and/or an approved plan to preventreleases due to overfill.

(5) Walkthrough inspections. In addition to the walkthrough inspec-tions in 10 CSR 26-2.036, owners and operators must inspect the fol-lowing additional areas for airport hydrant fuel distribution systemsat least once every thirty (30) days if confined space entry accordingto the Occupational Safety and Health Administration under 29 CFRPart 1910 is not required, or at least annually if confined space entryis required, and must keep documentation of these walkthroughinspections in accordance with 10 CSR 26-2.036:

(A) Hydrant pits—visually check for any damage, remove any liq-uid or debris, and check for any leaks; and

(B) Hydrant piping vaults—check for any hydrant piping leaks.


Vol. 41, No. 18

(6) Applicability of closure requirements to previously closed USTsystems. The department may require that the owner and operator ofa UST system with a field-constructed tank system or an airporthydrant fuel distribution system permanently closed before April 30,2017, assess the excavation zone and close the UST system in accor-dance with 10 CSR 26-2.060 through 10 CSR 26-2.064 if releasesfrom the UST system, in the judgment of the department, pose a cur-rent or potential threat to human health and the environment.

(7) Release detection. Owners and operators of existing UST systemsmust comply with the release detection requirements mandated in 10CSR 26-2.040 through 10 CSR 26-2.048 no later than July 1, 2020.

AUTHORITY: sections 319.100, 319.103, 319.105, 319.107, 319.111,319.114, 319.117, 319.120, and 319.123, RSMo 2000, and sections319.109 and 319.137, RSMo Supp. 2013. Original rule filed Aug. 15,2016.

PUBLIC COST: This proposed rule will not cost state agencies orpolitical subdivisions more than five hundred dollars ($500) in theaggregate. The public entity fiscal cost impacts for compliance withthe federal standards are accounted for in the federal rulemakings.

PRIVATE COST: This proposed rule will not cost private entitiesmore than $500 in the aggregate. The private entity fiscal costimpacts for compliance with the federal standards are accounted forin the federal rulemakings.





Regulations

PROPOSED AMENDMENT

10 CSR 26-2.019 New Installation Requirements. The commissionis amending sections (1), (4), (6) through (11) and adding new sec-tions (6), (9), and (10) and renumbering the sections accordingly.

PURPOSE: There are two (2) primary purposes for this rulemaking.The first is to open UST rules in Title 10, Division 26 of the Code ofState Regulations to make the necessary changes required by theU.S. Environmental Protection Agency (EPA). The 2005 EnergyPolicy Act required either financial responsibility for UST installersand manufacturers or secondary containment for all new systems. Inaddition, last October, EPA adopted changes to the federal UST reg-

ulations that need to be incorporated into state regulation. This rule-making will make the necessary changes to comply with these EPAgrant requirements and to incorporate the changes made to the fed-eral regulations.

The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed new system instal-lation requirements, outline the requirements for new USTs at mari-nas, and incorporate new technologies. The department will alsotake this opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

(1) Any installer who intends to install an underground storage tank(UST) or piping associated with a UST system for storage of a reg-ulated substance must, at least [thirty (30)] fourteen (14) daysbefore installing the tank or before piping replacement, notify thedepartment by [letter or] approved form transmitted via email ofintent to install a UST, except that this [thirty (30)] fourteen (14)day notice requirement may be waived by the department when arelease is suspected or in other similarly urgent circumstances. Thenotification must provide the tank owner’s name, installer name, thename and location of the facility where the UST or piping will beinstalled, the date that the installation is expected to commence, thedate that the tank is expected to be brought in[-] use, UST systeminformation, including tank material, size, manufacturer, pipingmaterial, piping type, and manufacturer, release detection equip-ment, and spill and overfill equipment. The installation notice isvalid for one hundred eighty (180) days from receipt by the depart-ment and only for the UST system(s) listed on the notice. If installa-tion does not commence within one hundred eighty (180) days of thedate on which the department received the notice, a new installationnotice must be submitted prior to commencing installation activities.

(4) Prior to installation of an [UST] underground tank and/or USTsystem piping intended to be used for storage of a regulated sub-stance, the tank and/or [associated] piping must be tested, inspect-ed, and measured in accordance with the manufacturer’s require-ments and in accordance with the pre-installation inspection, testing,and/or backfilling sections of either—

(6) When a new UST system is installed at a marina, the installermust comply with the Petroleum Equipment Institute’sRecommended Practice 1000-2014, Recommended Practices forthe Installation of Marina Fueling Systems, 2014 Edition or analternative procedure approved by the department. This docu-ment is incorporated by reference without any later amendmentsor modifications. To obtain a copy, contact the PetroleumEquipment Institute, Box 2380, Tulsa, OK 74101-2380, (918)494-9696, www.pei.org.

[(6)](7) Should one (1) or more of a manufacturer’s requirementscontradict the recommended industry practice(s), the manufacturer’srequirements shall be followed. Backfill materials must meet tankand piping manufacturers’ specifications.

[(7)](8) The tank and piping system must pass a one-tenth (0.1) gal-lon/hour system tightness test before the system is brought in-opera-tion. The tank tightness test must be—

(A) A tank tightness test method listed and conducted in accor-dance with the National Work Group on Leak DetectionEvaluations certificate. To obtain a copy, download the appropri-ate certificate from www.nwglde.org; or

(B) A one-tenth (0.1) gallon/hour third party certified test con-ducted using the automatic tank gauge with the tank at leastninety-five percent (95%) full.

(9) For tank system installations on or after July 1, 2017, before


the UST system is brought in-operation—(A) Spill and overfill prevention equipment must be tested in

accordance with 10 CSR 26-2.030;(B) Secondary containment sumps must be tested in accor-

dance with 10 CSR 26-2.035; and(C) All release detection equipment must be operability tested

in accordance with 10 CSR 26-2.040 and 10 CSR 26-2.048.

(10) All new tanks must be tied down. Tie-down straps must meetthe manufacturer’s design specifications and be installed in loca-tions and at a frequency prescribed by the manufacturer.

[(8)](11) Until the installation is complete and the system is releasedby the installer to the owner/operator, the tank shall be monitored forleaks daily by using either—

(A) An approved release detection method, in accordance with 10CSR 26-2.043; or

(B) Daily Inventory Liquid Measurements. Upon completion ofinitial post-installation tightness testing, daily measurements arebased on the average of two (2) consecutive stick readings. A varia-tion of no greater than twenty-six (26) gallons per week is allowed.Any suspected release, alarm, or inconclusive or failure result fromthese release detection methods must be reported and investigated inaccordance with 10 CSR 26-2.050.

[(9)](12) Upon the department’s discovery of an installation that isnot in compliance with the requirements of this rule, the depart-ment’s authorized representative may require that the installationremain open and uncovered, or that no additional UST system workbe conducted, until—

(A) The manufacturer approves the installation that deviates fromtheir written guidelines, specifications, and instructions;

(B) The owner approves the installation; and(C) The department approves the installation.

[(10)](13) Any equipment repairs necessary during the installationmust be manufacturer certified or approved, with supporting writtendocumentation from the manufacturer.

[(11)](14) Certification of Installation. All installers must ensure thatone (1) or more of the following methods of certification, testing, orinspection is used to demonstrate compliance with this rule by pro-viding a certification of compliance:

(A) The installation has been inspected and approved by thedepartment;

(B) All work listed in the manufacturer’s installation checklists hasbeen completed and submitted to the department; or

(C) The installer has complied with another method for ensuringcompliance with this rule that is [determined] pre-approved by thedepartment to be no less protective of human health and the environ-ment.

AUTHORITY: sections 319.105, RSMo 2000. Original rule filed April15, 2011, effective Dec. 30, 2011. Amended: Filed Aug. 15, 2016.

PUBLIC COST: The state changes in this rule are estimated to costaffected state agencies and political subdivisions six hundred sevendollars and fifty cents ($607.50) annually to comply with the newrequirements of this rule. A detailed fiscal note has been filed withthe secretary of state. The public entity fiscal cost impacts for com-pliance with the federal standards that are being incorporated intothis rule are accounted for in the federal rulemakings.

PRIVATE COST: The state changes in this rule are expected to costprivate entities twenty-nine thousand seven hundred sixty-seven dol-lars and fifty cents ($29,767.50) annually to comply with the newstate requirements of this rule. A detailed fiscal note has been filedwith the secretary of state. The private entity fiscal cost impacts for

compliance with the federal standards that are being incorporatedinto this rule are accounted for in the federal rulemakings.




Vol. 41, No. 18


September 15, 2016Vol. 41, No. 18Page 1142 Proposed Rules







Regulations

PROPOSED AMENDMENT

10 CSR 26-2.020 Performance Standards for New UndergroundStorage Tank Systems. The commission is proposing to amend sec-tion (1) of this rule.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed new system require-ments, and incorporate new technologies. The department will alsotake this opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

(1) In order to prevent releases due to structural failure, corrosion,or spills and overfills for as long as the underground storage tank(UST) system is used to store regulated substances, all owners andoperators of new UST systems must meet the following require-ments:

(A) Tanks. Each tank must be properly designed and constructed,and any portion underground that routinely contains a regulated sub-stance must be protected from corrosion, in accordance with a codeof practice developed by a nationally-recognized association or inde-pendent testing laboratory as [follows:] specified in paragraphs 1.through 5. of this subsection. In addition, all new or replacedtanks where installation began on or after July 1, 2017, must bedouble-walled in accordance with paragraph 5. of this subsec-tion—

1. The tank is constructed of fiberglass-reinforced plastic andcomplies with—

A. Underwriters’ Laboratories Standard 1316, Standard forGlass-Fiber-Reinforced Plastic Underground Storage Tanks forPetroleum Products, Alcohol and Alcohol-Gasoline Mixtures, revised2006. This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact theUnderwriters’ Laboratories, 333 Pfingsten Road, Northbrook, IL60062-2096, (847) 272-8800, www.ul.com; or

B. Other standards or publications approved by the depart-ment; or

2. The tank is constructed of steel and cathodically protected inthe following manner:

A. The tank is coated with a suitable dielectric material; B. Field-installed cathodic protection systems are designed by

a corrosion expert; C. Impressed current systems are designed to allow determi-

nation of current operating status as required in 10 CSR 26-2.031(1)(C);

D. Cathodic protection systems are operated and maintainedin accordance with 10 CSR 26-2.031 or according to guidelinesestablished by the department; and

E. The following codes and standards may be used to comply

with paragraph (1)(A)2. of this rule: (I) Steel Tank Institute Specification for STI-P3 System of

External Corrosion Protection of Underground Steel Storage Tanks,revised 2010. This document is incorporated by reference withoutany later amendments or modifications. To obtain a copy, contact theSteel Tank Institute, 944 Donata Court, Lake Zurich, IL 60047,(708) 438-8265, www.steeltank.com;

(II) Steel Tank Institute Standard F841, Standard forDual Wall Underground Steel Storage Tanks, revised 2006. Thisdocument is incorporated by reference without any later amend-ments or modifications. To obtain a copy, contact the Steel TankInstitute, 944 Donata Court, Lake Zurich, IL 60047, (708) 438-8265, www.steeltank.com;

[(II)](III) Underwriters’ Laboratories Standard 1746,Standard for External Corrosion Protection Systems for SteelUnderground Storage Tanks, revised 2007. This document is incor-porated by reference without any later amendments or modifications.To obtain a copy, contact the Underwriters’ Laboratories, 333Pfingsten Road, Northbrook, IL 60062-2096, (847) 272-8800,www.ul.com;

[(III)](IV) NACE International RP 0285-2002, CorrosionControl of Underground Storage Tank Systems by CathodicProtection, revised 2002. This document is incorporated by refer-ence without any later amendments or modifications. To obtain acopy, contact NACE International, Box 218340, Houston, TX77218-8340, (713) 492-0535, www.nace.org;

[(IV)](V) Underwriters’ Laboratories Standard 58,Standard for Steel Underground Tanks for Flammable andCombustible Liquids, revised 1998. This document is incorporatedby reference without any later amendments or modifications. Toobtain a copy, contact the Underwriters’ Laboratories, 333 PfingstenRoad, Northbrook, IL 60062-2096, (847) 272-8800, www.ul.com;or

3. The tank is a composite tank with a steel inner tank and anon-metallic external thick film coating or the tank is a steel innertank constructed with a non-metallic external jacket forming a sec-ondary wall. Either of these tanks shall comply with one (1) of thefollowing industry codes:

A. Underwriters’ Laboratories Standard 1746, Standard forExternal Corrosion Protection Systems for Steel UndergroundStorage Tanks, revised 2007. This document is incorporated by ref-erence without any later amendments or modifications. To obtain acopy, contact the Underwriters’ Laboratories, 333 Pfingsten Road,Northbrook, IL 60062-2096, (847) 272-8800, www.ul.com;

B. Steel Tank Institute’s ACT-100, Specification for ExternalCorrosion Protection of FRP Composite Steel USTs (F894), revisedJune 2010. This document is incorporated by reference without anylater amendments or modifications. To obtain a copy, contact theSteel Tank Institute, 944 Donata Court, Lake Zurich, IL 60047,(708) 438-8265, www.steeltank.com;

C. Underwriters’ Laboratories Standard 58, Standard forSafety for Steel Underground Storage Tanks for Flammable and Com-bustible Liquids, revised 1998. This document is incorporated by ref-erence without any later amendments or modifications. To obtain acopy, contact the Underwriters’ Laboratories, 333 Pfingsten Road,Northbrook, IL 60062-2096, (847) 272-8800, www.ul.com; [or]

D. Steel Tank Institute’s ACT-100-U, Specification forExternal Corrosion Protection of Composite Steel UndergroundStorage Tanks, F961, June 2010. This document is incorporated byreference without any later amendments or modifications. To obtaina copy, contact the Steel Tank Institute, 944 Donata Court, LakeZurich, IL 60047, (708) 438-8265, www.steeltank.com; or

E. Steel Tank Institute’s Specification F922, Steel TankInstitute Specification for Permatank, revised 2013. This docu-ment is incorporated by reference without any later amendmentsor modifications. To obtain a copy, contact the Steel TankInstitute, 944 Donata Court, Lake Zurich, IL 60047, (708) 438-8265, www.steeltank.com; or


[4. The tank is constructed of metal without additionalcorrosion protection measures provided that—

A. The tank is installed at a site that is determined bya corrosion expert to not be corrosive enough to cause it tohave a release due to corrosion during its operating life; and

B. Owners and operators maintain records thatdemonstrate compliance with the requirements of subpara-graph (1)(B)4.A. of this rule for the remaining life of thetank; or;]

[5.]4. The tank construction and corrosion protection are deter-mined by the department to be designed to prevent the release orthreatened release of any stored regulated substance in a manner thatis no less protective of human health and the environment than para-graphs (1)(A)1.–[4]3. of this rule;

5. Tanks installed on or after July 1, 2017, must be double-walled. A double-walled tank is a tank within a tank, where theouter walls and inner walls are separated, the inner tank is con-tained within the outer tank to a minimum of ninety-five percent(95%) containment and has an interstitial space capable of beingmonitored;

(B) Piping. The piping that routinely contains regulated substancesand is in contact with an electrolyte, including but not limited to,soil, backfill, and/or water, must be properly designed, constructed,and protected from corrosion [in accordance with a code ofpractice developed by a nationally recognized association orindependent testing laboratory as follows:] as specified inparagraphs 1. through 4. of this subsection. In addition, all newpiping systems where installation began on or after July 1, 2017,must be double-walled in accordance with paragraph 5. of thissubsection. If more than fifty percent (50%) of any tank system’spiping is replaced within any twelve (12) month period, the entirepiping run must be double-walled in accordance with paragraph5.

1. The piping is constructed of [fiberglass reinforced plastic]an approved, non-corrodible material[;].

2. The following codes and standards may be used to complywith paragraph (1)(B)1. of this rule:

A. Underwriters’ Laboratories Standard 971, UL ListedNonmetallic Underground Piping for Flammable Liquids, revised2006. This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact theUnderwriters’ Laboratories, 333 Pfingsten Road, Northbrook, IL60062-2096, (847) 272-8800, www.ul.com; and

B. Underwriters’ Laboratories Standard 567, EmergencyBreakaway Fittings, Swivel Connectors and Pipe Connection Fittingsfor Petroleum Products and LP-Gas, revised 2003. This documentis incorporated by reference without any later amendments or modi-fications. To obtain a copy, contact the Underwriters’ Laboratories,333 Pfingsten Road, Northbrook, IL 60062-2096, (847) 272-8800,www.ul.com[;].

3. After July 1, 2017, metal piping may not be installedunless it is completely enclosed within a containment sump,except existing flexible connectors may be replaced without a con-tainment sump if the new flexible connector is protected fromcorrosion by isolating it from the backfill using a manufacturer-approved isolation boot or protecting the connector from corro-sion in accordance with this paragraph. For existing piping,[T]the piping is constructed of steel and cathodically protected in thefollowing manner:

A. The piping is coated with a suitable dielectric material; B. Field-installed cathodic protection systems are designed by

a corrosion expert; C. Impressed current systems are designed to allow determi-

nation of current operating status as required in 10 CSR 26-2.031(1)(C);

D. Cathodic protection systems are operated, inspected, andmaintained in accordance with 10 CSR 26-2.031; and

E. The [following] codes and standards in 10 CSR 26-2.031(2) may be used to comply with paragraph (1)(B)3. of this

rule[:].[(I) National Fire Association Standard 30,

Flammable and Combustible Liquids Code, revised 2008.This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact theNational Fire Protection Association, 1 Batterymarch Park,Box 9101, Quincy, MA 02269-9101, (617) 770-3000,www.nfpa.org;

(II) American Petroleum Institute’s RecommendedPractice 1615, Installation of Underground PetroleumStorage Systems, fifth edition, 2011. This document is incor-porated by reference without any later amendments or mod-ifications. To obtain a copy, contact the American PetroleumInstitute, 1220 L Street NW, Washington, DC 20005, (202)682-8000, www.api.org/standards/;

(III) American Petroleum Institute Publication 1632,Cathodic Protection of Underground Petroleum StorageTanks and Piping Systems, revised 2002. This document isincorporated by reference without any later amendments ormodifications. To obtain a copy, contact the AmericanPetroleum Institute, 1220 L Street NW, Washington, DC20005, (202) 682-8000, www.api.org/standards/;

(IV) NACE International SP-0169-2007, Control ofExternal Corrosion on Submerged Metallic Piping Systems,revised 2007. This document is incorporated by referencewithout any later amendments or modifications. To obtain acopy, contact NACE International, Box 218340, Houston, TX77218-8340, (713) 492-0535, www.nace.org; and

(V) Steel Tank Institute’s Recommended Practice forCorrosion Protection of Underground Piping NetworksAssociated with Liquid Storage and Dispensing Systems(R892), revised 2006. This document is incorporated by ref-erence without any later amendments or modifications. Toobtain a copy, contact the Steel Tank Institute, 944 DonataCourt, Lake Zurich, IL 60047, (708) 438-8265,www.steeltank.com;

4. The piping is constructed of metal without additionalcorrosion protection measures provided that—

A. The piping is installed at a site that is determinedby a corrosion expert not to be corrosive enough to cause itto have a release due to corrosion during its operating life;and

B. Owners and operators maintain records thatdemonstrate compliance with the requirements of subpara-graph (1)(A)4.A. of this rule for the remaining life of thetank;

5. The following codes may be used to comply withparagraph (1)(B)4. of this rule:

A. National Fire Protection Association Standard 30,Flammable and Combustible Liquids Code, revised 2008.This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact theNational Fire Protection Association, 1 Batterymarch Park,Box 9101, Quincy, MA 02269-9101, (617) 770-3000;www.nfpa.org; and

B. NACE International SP-0169-2007, Control ofExternal Corrosion on Submerged Metallic Piping Systems,revised 2007. This document is incorporated by referencewithout any later amendments or modifications. To obtain acopy, contact NACE International, Box 218340, Houston, TX77218-8340, (713) 492-0535, www.nace.org; or]

[6.]4. The piping construction and corrosion protection aredetermined by the department to be designed to prevent the releaseor threatened release of any stored regulated substance in a mannerthat is no less protective of human health and the environment thanthe requirements in paragraphs (1)(B)1.–[5.]3. of this rule[;].

5. After July 1, 2017, new or replaced piping must be dou-ble-walled piping, except for any single wall fittings or ends,


Vol. 41, No. 18

which must be open to a leak-tight containment sump(s), exceptfor safe suction piping that meets the requirements of 10 CSR 26-2.041(1)(B)2.A. through E.;

(C) Spill and Overfill Prevention Equipment. 1. Except as provided in paragraph (1)(C)2. of this rule, to pre-

vent spilling and overfilling associated with product transfer to theUST system, owners and operators must use the following spill andoverfill prevention equipment:

A. Spill prevention equipment that will prevent release ofproduct to the environment when the transfer hose is detached fromthe fill pipe (for example, a spill catchment basin). All delivery hose-fill pipe connections must be tight, lock-on connections; and

B. Overfill prevention equipment that will—(I) Automatically shut off flow into the tank when the tank

is no more than ninety-five percent (95%) full;(II) Alert the transfer operator with a high-level alarm at

least one (1) minute before overfilling with an alarm audible in thedelivery area; or

(III) Alert the transfer operator when the tank is no morethan ninety percent (90%) full by restricting flow into the tank.

(a) Ball float valves may only be used in tank systemswith gravity deliveries, in suction systems if there are no checkvalves, except those contained within a building, and the tank systemis tight so that it does not allow vapors to be released during a deliv-ery after the ball float valve has closed.

(b) Ball float valves are not approved for use as overfillprevention equipment in new tank systems installed after December31, 2011. [Ball float valves may still be used in systemsequipped with manifolded vent lines and vapor recoveryequipment if the ball valve is installed no lower than ninety-eight percent (98%) full and the functioning overfill equip-ment is installed no higher than ninety-five percent (95%)full.]

(c) When an overfill prevention device is replacedafter July 1, 2017, a ball float valve may not be used.

(IV) For pressurized deliveries, overfill prevention equip-ment must be compatible and approved for use with pressurizeddeliveries[.];

C. All spill and overfill prevention equipment must beinstalled, inspected, maintained, and replaced in accordancewith 10 CSR 26-2.030.

2. Owners and operators are not required to use the spill andoverfill prevention equipment specified in paragraph (1)(C)1. of thisrule if—

A. Alternative equipment is used that is determined by thedepartment to be no less protective of human health and the environ-ment than the equipment specified in subparagraph (1)(C)1.A. or B.of this rule; or

B. The owner or operator submits a written explanation thatthe equipment cannot be used for the UST system and their detailedfuel-delivery plan, documenting that their delivery procedures pre-vent spills and overfills; or

C. The UST system is filled by transfers of no more thantwenty-five (25) gallons at one (1) time[.];

(D) [All new tank systems installed after December 31,2011, must be installed with containment sumps at eachtank top suction piping or submersible turbine pump connec-tion, each piping transition/ball valve location, and undereach dispenser. The containment sumps must be designedto contain any leak from the primary UST piping system;and] For new or replaced tanks or piping systems installed afterJuly 1, 2017, containment sumps must be installed at each tanktop suction piping or submersible turbine pump connection, eachpiping transition, ball valve, or single-walled fitting location, andunder each dispenser. The containment sump must be liquid-tight on its sides, bottom, and at any penetrations, with intersti-tial monitoring in accordance with 10 CSR 26-2.043(1)(H) andsump testing in accordance with 10 CSR 26-2.035;

(E) Dispenser Systems. Any new dispenser system installedafter July 1, 2017, must have a containment sump beneath it.

1. A dispenser system is considered new when both the dis-penser and the equipment needed to connect the dispenser to theunderground storage tank system are installed or replaced at aUST facility. The equipment necessary to connect the dispenserto the UST system includes check valves, shear valves, unburiedrisers and flexible connectors, and other transitional componentsthat are underneath the dispenser and connect the dispenser tothe underground UST system piping.

2. Under-dispenser containment must be liquid-tight on itssides, bottom, and at any penetrations and must allow for visualinspection and access to the components in the containmentsump and be tested or monitored for leaks from the dispensersystem in accordance with 10 CSR 26-2.035;

[(E)](F) Installation. All tanks and piping must be properlyinstalled in accordance with a code of practice developed by a nation-ally-recognized association or independent testing laboratory, inaccordance with all manufacturers’ instructions, and in accordancewith 10 CSR 26-2.019. Tank and piping system installation practicesand procedures described in the following codes of practice may beused to comply with the requirements of this rule:

1. American Petroleum Institute Publication 1615, Installationof Underground Petroleum Storage System, revised 2011. This doc-ument is incorporated by reference without any later amendments ormodifications. To obtain a copy, contact the American PetroleumInstitute, 1220 L Street NW, Washington, DC 20005, (202) 682-8000, www.api.org/standards/; or

2. Petroleum Equipment Institute Publication RP100,Recommended Practices for Installation of Underground LiquidStorage Systems, revised 2011. This document is incorporated by ref-erence without any later amendments or modifications. To obtain acopy, contact the Petroleum Equipment Institute, Box 2380, Tulsa,OK 74101-2380, (918) 494-9696, www.pei.org.

AUTHORITY: sections 319.105 and 319.107, RSMo 2000, and section319.137, RSMo Supp. [2010] 2013. This rule originally filed as 10CSR 20-10.020. Original rule filed April 2, 1990, effective Sept. 28,1990. Moved and amended: Filed April 15, 2011, effective Dec. 30,2011. Amended: Filed Aug. 15, 2016.




Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the Hazardous WasteProgram at PO Box 176, Jefferson City, MO 65102-0176. To be accept-ed, written comments must be postmarked by midnight on October 27,2016. Email comments shall be sent to [email protected].


Please direct all inquiries to the Rules Coordinator of the HazardousWaste Program, at 1730 E. Elm, Jefferson City, MO 65102, telephone(573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.021 [Upgrading of Existing] Upgraded UndergroundStorage Tank Systems. The commission is proposing to change thetitle and amend the purpose statement of this rule, as well as sections(3) through (6) and also adding a new section (6) and renumberingthe other sections accordingly.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks and incorporate new technologies. The department willalso take this opportunity to clarify ambiguous or confusing languageand update industry standard referenced in the regulations.

PURPOSE: [This rule contains the options for upgradingexisting underground storage tanks for continued operationafter December 22, 1998.] This rule contains requirements forUST systems that were in use on December 22, 1998, and wereupgraded with release prevention equipment.

(3) Tank Upgrading Requirements. Tanks must be upgraded to meetone (1) of the following requirements in accordance with a code ofpractice developed by a nationally-recognized association or indepen-dent testing laboratory:

[(A) Interior lining. A tank may be upgraded by internal lin-ing if—

1. The lining is installed in accordance with the require-ments of 10 CSR 25-2.033 and the following:

A. Lining manufacturer installation requirements; andB. An approved national code or standard, including

those listed in section (6) of this rule; and eitherC. For steel tanks, structural integrity determinations

are required and must include actual steel tank thicknessreadings. Approved integrity test methods are included insection (6) of this rule; or

D. For fiberglass-reinforced plastic tanks, all liningsmust be approved by the tank manufacturer and installed inaccordance with the tank manufacturer’s requirements.

2. Within ten (10) years after the initial lining, and everyfive (5) years after that, whether relined or not, the linedtank is internally inspected and found to be structurallysound with the lining still performing in accordance withoriginal design specifications; and

3. A tank may only be relined and/or the lining may onlybe repaired—

A. If the fiberglass-reinforced plastic tank meets alltank manufacturer standards for repair or relining of thetank; or

B. If the steel tank passes an integrity test, includingactual steel shell thickness readings. Approved integrity testmethods are included in section (6) of this rule;]

(A) Interior lining or Tank Retrofit. A tank may be upgradedby internal lining or retrofit if—

1. The lining is installed in accordance with the require-ments of 10 CSR 26-2.033 and the lining or retrofit meets the fol-lowing additional requirements:

A. All linings installed or repaired on or after January 1,2020, must meet the design specifications of UnderwritersLaboratories (UL) 1856 Outline of Investigation forUnderground Fuel Tank Internal Retrofit Systems requirements;

B. Inspections and repairs must be conducted by a techni-cian who is properly certified by NACE International orInternational Code Council (ICC);

C. The lining or retrofit is installed according to manufac-turer installation requirements;

D. An approved national code or standard, includingthose listed in section (7) of this rule, is followed;

E. For fiberglass-reinforced plastic tanks, all linings mustbe approved by the tank manufacturer and installed in accor-dance with the tank manufacturer’s requirements. If the tankmanufacturer is no longer available or willing to repair the tank,the tank may be lined in accordance with—

(I) The manufacturer’s requirements, or(II) The Fiberglass Tank & Piping Institute T-95-1.

Remanufacturing of Fiberglass Reinforced Plastic (FRP)Underground Storage Tanks, Revised 1995. This document isincorporated by reference without any later amendments ormodifications. To obtain a copy, contact the Fiberglass Tank andPiping Institute, http://www.fiberglasstankandpipe.com; and

(III) By a technician who is properly certified by NACEInternational, International Code Council (ICC), or theAmerican Composites Manufacturers Association;

F. All linings must be installed, inspected, repaired, andmaintained in accordance with one (1) of the following:

(I) For UL 1856 Lining systems, single-walled, co-struc-tural systems and linings installed prior to January 1, 2020:

(a) A lining may only be repaired if the steel tankpasses an integrity test, including actual steel shell thicknessreadings. Approved integrity test methods are included in section(7) of this rule;

(b) A replacement lining may only be installed if thenew lining meets the UL 1856 specifications and the steel tankpasses an integrity test, including actual steel shell thicknessreadings. Approved integrity test methods are included in sec-tion (7) of this rule;

(c) The lining must be internally inspected at leastevery five (5) years and found to be structurally sound with thelining still performing in accordance with the original designspecifications;

(II) For UL 1856 Upgrade systems, double-walled, co-structural systems:

(a) A lining may only be installed or repaired if thesteel tank passes an integrity test, including actual steel shellthickness readings. Approved integrity test methods are includedin section (7) of this rule; and

(b) The lining must be internally inspected at leastevery five (5) years and found to be structurally sound with thelining still performing in accordance with the original designspecifications; or

(c) The interstitial lining space is electronically mon-itored, with passing sensor status reports for the most recenttwelve (12) months, in accordance with 10 CSR 26-2.043 subsec-tion (1)(H);


Vol. 41, No. 18

(III) For UL 1856 Structural systems, double-walled,self-structural systems—

(a) The lining must be internally inspected at leastevery five (5) years and found to be structurally sound with thelining still performing in accordance with the original designspecifications; or

(b) The interstitial lining space is electronically mon-itored, with passing sensor status reports for the most recenttwelve (12) months, in accordance with 10 CSR 26-2.043 subsec-tion (1)(H);

G. All interior lining inspection reports must include pho-tographs of the tank bottom, a representative tank side wall anda representative tank end, and documentation of the interior lin-ing hardness and thickness readings, in accordance with the eval-uation guidance document used;

(B) Cathodic Protection. A tank may be upgraded by cathodic pro-tection if the cathodic protection system meets the requirements ofthe performance standards for new UST systems in 10 CSR 26-2.020(1)(A)2.B.–D. and the integrity of the tank is ensured usingone (1) of the following methods:

1. The tank is internally inspected and assessed to ensure thatthe tank is structurally sound and free of corrosion holes prior toinstalling the cathodic protection system. Structural integrity evalua-tions must include steel shell thickness readings and confirmationthat the steel shell does not have any holes or perforations. Approvedintegrity test methods are included in section [(6)] (7) of this rule;

2. The tank has been installed for less than ten (10) years andis monitored monthly for releases in accordance with release detec-tion methods in 10 CSR 26-2.043(1)(E)–(I);

3. The tank has been installed for less than ten (10) years andis assessed for corrosion holes by conducting two (2) tightness teststhat meet the requirement of release detection method in 10 CSR 26-2.043(1)(D). The first tightness test must be conducted prior toinstalling the cathodic protection system. The second tightness testmust be conducted between three and six (3–6) months following thefirst operation of the cathodic protection system; or

4. The tank is assessed for corrosion holes by a method that isdetermined by the department to prevent releases in a manner that isno less protective of human health and the environment than para-graphs (3)(B)1.–3. of this rule; and

(4) Piping Upgrading Requirements. Metal piping that routinelycontains regulated substances and is in contact with an electrolyte,including but not limited to, soil, backfill, and/or water, must becathodically protected [in accordance with a code of practicedeveloped by a nationally-recognized association or indepen-dent testing laboratory] and must meet the requirements of 10CSR 26-2.020(1)(B)3.B.–[D.]E.

(5) Spill and Overfill Prevention Equipment. To prevent spilling andoverfilling associated with product transfer to the UST system, allexisting UST systems must comply with new UST system spill andoverfill prevention equipment requirements specified in 10 CSR 26-2.020(1)(C) and 10 CSR 26-2.030.

(6) Dispenser Systems. Any new dispenser installed after July 1,2017, must have a containment sump beneath it, in accordancewith 10 CSR 26-2.020(1)(E).

[(6)](7) The following codes and standards may be used to complywith this rule:

(A) American Petroleum Institute Standard 1631, Interior Liningand Periodic Inspection of Underground Storage Tanks, revised2001. This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact theAmerican Petroleum Institute, 1220 L Street NW, Washington, DC20005, (202) 682-8000, www.api.org/standards/;

(B) NACE International RP 0285-2002, Corrosion Control of

Underground Storage Tank Systems by Cathodic Protection, revised2002. This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact NACEInternational, Box 218340, Houston, TX 77218-8340, (713) 492-0535, www.nace.org;

(C) American Petroleum Institute Publication 1632, CathodicProtection of Underground Petroleum Storage Tanks and PipingSystems, revised 2002. This document is incorporated by referencewithout any later amendments or modifications. To obtain a copy,contact the American Petroleum Institute, 1220 L Street NW,Washington, DC 20005, (202) 682-8000, www.api.org/standards/;

(D) American Society for Testing and Materials G158-98 (2010)Standard Guide for Three Methods of Assessing Buried Steel Tanks,revised 2010, Method B only. Methods A and C may not be used toevaluate the integrity of a steel tank. This document is incorporatedby reference without any later amendments or modifications. Toobtain a copy, contact the American Society for Testing andMaterials, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, (610) 832-9500, www.astm.org; [and]

(E) National Leak Prevention Association Standard 631, SpillPrevention, Minimum 10 Year Life Extension of Existing SteelUnderground Tanks by Lining Without the Addition of CathodicProtection, revised 1999. This standard may only be used for inte-rior lining application and inspection, not for inspection of the steeltank integrity. This document is incorporated by reference withoutany later amendments or modifications. To obtain a copy, contact theNational Leak Prevention Association, (815) 301-2785, www.nlpa-online.org[.]; and

(F) Ken Wilcox Associates Recommended Practice,Recommended Practice for Inspecting Buried Lined Steel TanksUsing a Video Camera, September 28, 1999. This document isincorporated by reference without any later amendments ormodifications. To obtain a copy, contact Ken Wilcox Associates,1125 Valley Ridge Drive, Grain Valley, MO 64029, (816) 443-2494, www.kwaleak.com.


PUBLIC COST: The state changes in this rule are expected to coststate agencies or political subdivisions five hundred sixty dollars($560) one (1) time and one hundred twenty-six dollars ($126) annu-ally thereafter to comply with the new requirements of this rule. Adetailed fiscal note has been filed with the secretary of state. Thepublic entity fiscal cost impacts for compliance with the federal stan-dards that are being incorporated into this rule are accounted for inthe federal rulemakings.

PRIVATE COST: The state changes in this rule are expected to costprivate entities seven thousand four hundred forty dollars ($7,440)one (1) time and one thousand six hundred seventy-four dollars($1,674) annually thereafter to comply with the new requirements ofthis rule. A detailed fiscal note has been filed with the secretary ofstate. The private entity fiscal cost impacts for compliance with thefederal standards that are being incorporated into this rule areaccounted for in the federal rulemakings.

NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of the


Hazardous Waste Management Commission at (573) 751-2747.Any person may submit written comments on this rule action.

Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. Tobe accepted, written comments must be postmarked by midnight onOctober 27, 2016. Email comments shall be sent [email protected]. Please direct all inquiries to the RulesCoordinator of the Hazardous Waste Program, at 1730 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.


Vol. 41, No. 18









Regulations

PROPOSED AMENDMENT

10 CSR 26-2.022 Notification Requirements. The commission isproposing to amend sections (1) and (2) of this rule.


The second reason is to incorporate state-specific changes. Thedepartment will also take this opportunity to clarify ambiguous orconfusing language and update industry standard referenced in theregulations.

(1) Any owner who brings an underground storage tank (UST) sys-tem in-operation must, within thirty (30) days of bringing the tank[into] in-operation, register the completed UST system on formsprovided by the department. Note: Owners and operators of USTsystems that were in the ground on or after May 8, 1986, unlesstaken out-of-use on or before January 1, 1974, were required to noti-fy the state in accordance with the Hazardous and Solid WasteAmendments of 1984, P.L. 98-616, on a form published byEnvironmental Protection Agency (EPA) on November 8, 1985 (50FR 46602), unless notice was given pursuant to section 103(c) ofComprehensive Environmental Response, Compensation, andLiability Act of 1980 (CERCLA). Owners and operators who havenot complied with the notification requirements [may] must use aform[s provided] approved by the department.

(2) [Notices required to be submitted under section (1) ofthis rule must provide all of the information requested in aform approved by the department for each UST.] No laterthan July 1, 2019, owners of previously deferred UST systemsmust register their UST system(s) on forms approved by thedepartment.

AUTHORITY: sections 319.103, 319.105, 319.107, 319.111, 319.114,and 319.123, RSMo 2000, and section 319.137, RSMo Supp. [2010]2013. This rule originally filed as 10 CSR 20-10.022. Original rulefiled April 2, 1990, effective Sept. 28, 1990. For intervening history,please consult the Code of State Regulations. Amended: Filed Aug.15, 2016.



NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-

MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.




Regulations

PROPOSED AMENDMENT

10 CSR 26-2.030 Spill and Overfill Control for In-UseUnderground Storage Tank Systems. The commission is proposingto amend the title of this rule, adding new sections (3) through (8),and renumbering accordingly.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed new system instal-lation requirements, and incorporate new technologies. The depart-ment will also take this opportunity to clarify ambiguous or confusinglanguage and update industry standard referenced in the regulations.

(3) Owners and operators must meet one (1) of the followingrequirements to ensure their spill prevention equipment is oper-ating properly and will prevent releases to the environment:

(A) Have double-walled spill prevention equipment and moni-tor the space between the walls at least once every thirty (30)days; or

(B) The spill prevention equipment is tested at least trienniallyto ensure the spill prevention equipment is liquid tight by usingvacuum, pressure, or liquid testing in accordance with one (1) ofthe following:

1. Requirements developed by the manufacturer (Note: Thisoption may only be used if the manufacturer has developed test-ing requirements. Self-testing apparatus may only be used if pre-approved by the department as a valid functionality test.); or

2. Interstitial test (for double-walled spill basins only) orspill containment test listed by the National Work Group on Leak


Detection Evaluations. To obtain copies of equipment certifica-tions, contact the National Work Group for Leak DetectionEvaluations, www.nwglde.org; or

3. Petroleum Equipment Institute RP 1200-12, RecommendedPractices for the Testing and Verification of Spill, Overfill, LeakDetection and Secondary Containment Equipment at UST Facilities.This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact thePetroleum Equipment Institute, Box 2380, Tulsa, OK 74101-2380,(918) 494-9696, www.pei.org; or

4. Other methods approved by the department, which mayinclude a code of practice developed by a nationally recognizedassociation or independent testing laboratory, determined to beno less protective of human health and the environment than therequirements listed in paragraphs 1. through 3. of this subsec-tion.

(4) Spill basins may not be repaired with a partial or spot, field-applied repair kit, or product. Repairs must either be a manu-facturer-designed replacement insert or a complete factory-built,field-installed complete spill basin repair kit. Other repairs maybe approved by the department if they are determined to be noless protective of human health and the environment.

(5) Owners and operators must ensure their overfill preventionequipment is operating properly and will prevent releases to theenvironment. Overfill prevention equipment must be inspectedor tested at least triennially. At a minimum, the test or inspectionmust ensure that overfill prevention equipment is set to activateat the correct level specified in 10 CSR 26-2.020 and will activatewhen the regulated substance reaches that level. Tests or inspec-tions must be conducted in accordance with one (1) of the follow-ing criteria:

(A) Requirements developed by the manufacturer, but only ifthe test or inspection confirms that all portions of the overfilldevice are intact and functional. (Note: This option may be usedif the manufacturer has developed testing requirements. Self-test-ing apparatus may only be used if approved by the departmentas a valid functionality test); or

(B) Petroleum Equipment Institute RP 1200-12, RecommendedPractices for the Testing and Verification of Spill, Overfill, LeakDetection and Secondary Containment Equipment at USTFacilities. This document is incorporated by reference withoutany later amendments or modifications. To obtain a copy, con-tact the Petroleum Equipment Institute, Box 2380, Tulsa, OK74101-2380, (918) 494-9696, www.pei.org; or

(C) Other methods approved by the department, which mayinclude a code of practice developed by a nationally recognizedassociation or independent testing laboratory, determined to beno less protective of human health and the environment than therequirements listed in paragraphs 1. through 3. of subsection(3)(B).

(6) The first test of the spill equipment and the first test orinspection of the overfill prevention equipment required by thisrule is due no later than January 1, 2020.

(7) If a tank has been out of use for more than twelve (12)months, equipment must be confirmed operational with a test ofthe spill prevention equipment and an inspection or test of theoverfill prevention equipment, prior to bringing it back in-use.

(8) Owners and operators must maintain the following records,in accordance with 10 CSR 26-2.034, for spill and overfill preven-tion equipment:

(A) Test and/or inspection records must be maintained forthree (3) years; and/or

(B) When using interstitial monitoring, records must be main-

tained for twelve (12) months.

[(3)](9) Guidance on spill and overfill prevention appears in the—(A) American Petroleum Institute Publication 1621, Recommended

Practice for Bulk Liquid Stock Control at Retail Outlets, revised 2001.This document is incorporated by reference without any later amend-ments or modifications. To obtain a copy, contact the AmericanPetroleum Institute, 1220 L Street NW, Washington, DC 20005,(202) 682-8000, www.api.org/standards/; [and]

(B) National Fire Protection Association Standard 30, Flammableand Combustible Liquids Code, revised 2008. This document isincorporated by reference without any later amendments or modifi-cations. To obtain a copy, contact the National Fire ProtectionAssociation, 1 Batterymarch Park, Box 9101, Quincy, MA 02269-9101, (617) 770-3000, www.nfpa.org[.];

(C) Petroleum Equipment Institute RP 1200-12, RecommendedPractices for the Testing and Verification of Spill, Overfill, LeakDetection and Secondary Containment Equipment at USTFacilities. This document is incorporated by reference withoutany later amendments or modifications. To obtain a copy, con-tact the Petroleum Equipment Institute, Box 2380, Tulsa, OK74101-2380, (918) 494-9696, www.pei.org;

(D) National Fire Protection Association Standard 385,Standard for Tank Vehicles for Flammable and CombustibleLiquids, revised 2012. This document is incorporated by refer-ence without any later amendments or modifications. To obtaina copy, contact the National Fire Protection Association, 1Batterymarch Park, Box 9101, Quincy, MA 02269-9101, (617)770-3000, www.nfpa.org; and

(E) American Petroleum Institute Recommended Practice1007, Loading and Unloading of MC 306/DOT Cargo Tank MotorVehicles, revised 2011. This document is incorporated by refer-ence without any later amendments or modifications. To obtaina copy, contact the American Petroleum Institute, 1220 L StreetNW, Washington, DC 20005, (202) 682-8000, www.api.org/stan-dards.





Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. To


Vol. 41, No. 18

be accepted, written comments must be postmarked by midnight onOctober 27, 2016. Email comments shall be sent [email protected]. Please direct all inquiries to the RulesCoordinator of the Hazardous Waste Program, at 1730 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.031 Operation and Maintenance of CorrosionProtection. The commission is proposing to amend sections (1), (2),and (3) of the rule.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The department will also take thisopportunity to clarify ambiguous or confusing language and updateindustry standard referenced in the regulations.

(1) All owners and operators of [steel] metal underground storagetank (UST) systems with corrosion protection must comply with thefollowing requirements to ensure that releases due to corrosion areprevented [for as long as the UST system is used to store reg-ulated substances] until the system is permanently closed or hasan out-of-use site assessment conducted in accordance with 10CSR 26-2.060 through 10 CSR 26-2.064.

(D) For UST systems using cathodic protection, records of theoperation of the cathodic protection system must be maintained [(]inaccordance with 10 CSR 26-2.034[)] to demonstrate compliance withthe performance standards in this rule. These records must providethe following:

1. The results of the last three (3) inspections required in sub-section (1)(C) of this rule; and

2. The results of testing from the last two (2) inspectionsrequired in subsection (1)(B) of this rule.

(2) The following codes and standards may be used to comply withthis rule:

(A) NACE International RP 0285-2002, Corrosion Control ofUnderground Storage Tank Systems by Cathodic Protection, revised2002. This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact NACEInternational, Box 218340, Houston, TX 77218-8340, (713) 492-0535, www.nace.org; [or]

(B) NACE International TM0101-2001, Standard Test Method,Measurement Techniques Related to Criteria for Cathodic Protectionon Underground or Submerged Metallic Tank Systems, 2001 edition.This document is incorporated by reference without any later amend-ments or modifications. To obtain a copy, contact NACEInternational, Box 218340, Houston, TX 77218-8340, (713) 492-0535, www.nace.org; [or]

(C) NACE International SP-0169-2007, Control of ExternalCorrosion on Submerged Metallic Piping Systems, revised 2007.This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact NACEInternational, Box 218340, Houston, TX 77218-8340, (713) 492-0535, www.nace.org;

(D) NACE International TM0497-2012, MeasurementTechniques Related to Criteria for Cathodic Protection onUnderground or Submerged Metallic Piping Systems, revised 2012.This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact NACEInternational, Box 218340, Houston, TX 77218-8340, (713) 492-0535, www.nace.org;

[(C)](E) Steel Tank Institute Cathodic Protection TestingProcedures for sti-P3 USTs, R051, January 2006. This document isincorporated by reference without any later amendments or modifi-cations. To obtain a copy, contact the Steel Tank Institute, 944Donata Court, Lake Zurich, IL 60047, (708) 438-8265,www.steeltank.com; [or]

[(D)](F) Steel Tank Institute Recommended Practice for theAddition of Supplemental Anodes to sti-P3 USTs, R972, December2010. This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact the SteelTank Institute, 944 Donata Court, Lake Zurich, IL 60047, (708)438-8265, www.steeltank.com[.]; or

(G) Steel Tank Institute Recommended Practice for CorrosionProtection of Underground Piping Networks Associated with LiquidStorage and Dispensing Systems, R892, Revised January 2006. Toobtain a copy, contact the Steel Tank Institute, 944 Donata Court,Lake Zurich, IL 60047, (708) 438-8265, www.steeltank.com.

(3) If cathodic protection is being used to protect all or part of a USTsystem from corrosion, and the electric system energizing the cathod-ic protection has been off, unhooked, or damaged for more thanninety (90) days, the owner/operator must—

(A) Conduct a[n] tank integrity test, documenting adequate tankshell integrity and thickness, as required in 10 CSR 26-2.021(3)(B);and

(B) Have a corrosion expert or design engineer re-evaluate theUST system, cathodic protection system, and surrounding structuresand design and/or make changes to the existing cathodic protectionsystem to meet the standards in 10 CSR 26-2.020(1)(A)2.B.–D.;

(C) Replace metal piping components;[(C)](D) The owner/operator may request an additional ninety (90)

days to repair the systems by submitting a request, including the jus-tification for the extension; or

[(D)](E) Permanently close the tank, in accordance with 10 CSR26-2.060 through 10 CSR 26-2.064.




NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commission


will hold a public hearing on this rule action and others beginningat 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.




Regulations

PROPOSED AMENDMENT

10 CSR 26-2.032 Compatibility. The commission is proposing toadd new sections (2) and (3) and renumbering accordingly.



(2) Owners and operators must notify the department at leastthirty (30) days prior to switching to a regulated substance con-taining greater than ten percent (10%) ethanol and/or greaterthan twenty percent (20%) biodiesel.

(3) Owners and operators may use one (1) or more of the follow-ing methods to demonstrate UST system compatibility with theregulated substance stored:

(A) Certification or listing of UST system components by anationally recognized, independent testing laboratory for usewith the regulated substance stored; or

(B) Equipment or component manufacturer approval. Themanufacturer’s approval must be in writing, indicate an affirma-tive statement of compatibility and functionality, specify therange of product blends with which the component is compatible,and be from the equipment or component manufacturer; or

(C) Another method determined by the department to be noless protective of human health and the environment than themethods listed in subsection (A) or (B) of this section.

[(2)](4) Owners and operators storing alcohol blends may use thefollowing codes to comply with this rule:

(A) American Petroleum Institute [Publication] RecommendedPractice 1626, Storing and Handling Ethanol and Gasoline-EthanolBlends at Distribution Terminals and Service Stations, [revised2001] 2010 Edition with 2012 Addendum. This document isincorporated by reference without any later amendments or modifi-cations. To obtain a copy, contact the American Petroleum Institute,1220 L Street NW, Washington, DC 20005, (202) 682-8000,www.api.org/standards/; or

[(B) American Petroleum Institute Publication 1627,Storage and Handling of Gasoline-Methanol/Cosolvent Blendsat Distribution Terminals and Service stations, revised 2001.This document is incorporated by reference without any lateramendments or modifications. To obtain a copy, contact theAmerican Petroleum Institute, 1220 L Street NW,Washington, DC 20005, (202) 682-8000, www.api.org/stan-dards/; or]

[(C)](B) Other standards or publications approved by the depart-ment.

AUTHORITY: section 319.105, RSMo 2000, and section 319.137,RSMo Supp. [2010] 2013. This rule originally filed as 10 CSR 20-10.032. Original rule filed April 2, 1990, effective Sept. 28, 1990.Moved and amended: Filed April 15, 2011, effective Dec. 30, 2011.Amended: Filed Aug. 15, 2016.







Regulations

PROPOSED AMENDMENT

10 CSR 26-2.033 Repairs Allowed. The commission is proposing to


Vol. 41, No. 18

amend section (2) of this rule.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that tanks are still functionalenough to remain in use. The changes would better prevent anddetect leaks, help provide better repairs, and incorporate new tech-nologies. The department will also take this opportunity to clarifyambiguous or confusing language and update industry standard ref-erenced in the regulations.

(2) The repairs must meet the following requirements: (A) Repairs to UST systems must be properly conducted in accor-

dance with a code of practice developed by a nationally-recognizedassociation or an independent testing laboratory.

1. The following codes and standards may be used to complywith subsection (2)(A) of this rule:

A. National Fire Protection Association Standard 30,Flammable and Combustible Liquids Code, revised 2008. This doc-ument is incorporated by reference without any later amendments ormodifications. To obtain a copy, contact the National Fire ProtectionAssociation, 1 Batterymarch Park, Box 9101, Quincy, MA 02269-9101, (617) 770-3000, www.nfpa.org;

B. National Fire Protection Association Standard 326,Standard for the Safeguarding of Tanks and Containers for Entry,Cleaning, or Repair, revised 2015. This document is incorporatedby reference without any later amendments or modifications. Toobtain a copy, contact the National Fire Protection Association, 1Batterymarch Park, Box 9101, Quincy, MA 02269-9101, (617)770-3000, www.nfpa.org;

[B.]C. American Petroleum Institute Publication 2200,Repairing Crude Oil, Liquefied Petroleum Gas, and ProductPipelines, revised 2001. This document is incorporated by referencewithout any later amendments or modifications. To obtain a copy,contact the American Petroleum Institute, 1220 L Street NW,Washington, DC 20005, (202) 682-8000, www.api.org/standards/;

[C.]D. American Petroleum Institute Standard 1631, InteriorLining and Periodic Inspection of Underground Storage Tanks,revised 2001. This document is incorporated by reference withoutany later amendments or modifications. To obtain a copy, contact theAmerican Petroleum Institute, 1220 L Street NW, Washington, DC20005, (202) 682-8000, www.api.org/standards/; [and]

[D.]E. National Leak Prevention Association Standard 631,Spill Prevention, Minimum 10-Year Life Extension of Existing SteelUnderground Tanks by Lining Without the Addition of CathodicProtection, revised 1999. This standard may only be used for inte-rior lining application and inspection, not for integrity testing of thesteel shell. This document is incorporated by reference without anylater amendments or modifications. To obtain a copy, contact theNational Leak Prevention Association, (815) 301-2785, www.nlpa-online.org; and

F. Fiberglass Tank and Piping Institute T-95-1,Remanufacturing of Fiberglass Plastic (FRP) Underground StorageTanks, Revised 1995. This document is incorporated by referencewithout any later amendments or modifications. To obtain acopy, contact the Fiberglass Tank and Piping Institute,http://www.fiberglasstankandpipe.com;

(C) Metal pipe sections and fittings that have released a regulated

substance as a result of corrosion or other damage must be replaced.For cathodically protected metal piping, the entire length of electri-cally-continuous metal pipe must be replaced. [Fiberglass] Non-corrodible pipes and fittings may be repaired in accordance with themanufacturer’s specifications;

(E) Repaired tanks and/or piping must be tightness tested in accor-dance with release detection methods listed in 10 CSR 26-2.043(1)(D) and 10 CSR 26-2.044(1)(B) within thirty (30) days fol-lowing the date of the completion of the repair, [except as providedin the following paragraphs:] unless tested using anothermethod that is determined by the department to be no less pro-tective of human health and the environment;

[1. The repaired tank is internally inspected in accor-dance with a code of practice developed by a nationally-rec-ognized association or an independent testing laboratory;

2. The repaired portion of the UST system is monitoredmonthly for releases by one (1) of the release detectionmethods listed in 10 CSR 26-2.043(1)(B) and (E)–(I); or

3. Another test method is used that is determined bythe department to be no less protective of human health andthe environment than those listed in paragraphs (2)(E)1. and2. of this rule;]

(F) Repairs of UST systems, or any portion of a UST system,required to be double-walled, must be tested to confirm theintegrity of both walls of the repaired tank or piping system with-in thirty (30) days following the completion of any repair;

(G) Repairs to any required containment sumps must be testedusing a method specified in 10 CSR 26-2.035(1)(B) within thirty(30) days following the completion of any repair;

(H) Within thirty (30) days following any repair to spill or pre-vention equipment, the repaired spill or overfill preventionequipment must be tested in accordance with 10 CSR 26-2.030 toensure it is operating properly;

[(F)](I) Within six (6) months following the repair of any cathod-ically protected UST system, the cathodic protection system must betested with the methods of operation and maintenance of corrosionprotection in 10 CSR 26-2.031(1)(B) and (C) to ensure that it is oper-ating properly. Repair may include, but is not limited to, adjust-ments, maintenance, replacement, or changes to cathodic protectionequipment and/or tank repairs; [and]

[(G)](J) If a tank is repaired by installation of an interior lining,the lining must be properly maintained and inspected, in accordancewith 10 CSR 26-2.021(3)(A), for the life of the tank; and

[(H)](K) UST system owners and operators must maintain records[of] demonstrating compliance with this rule for each repair forthe remaining operating life of the UST system [that demonstratecompliance with the requirement of this rule].




NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginning


at 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.




Regulations

PROPOSED AMENDMENT

10 CSR 26-2.034 Reporting and Record Keeping. The commissionis proposing to amend section (1) of this rule.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, outline the requirements for recordkeeping in the newrules, and incorporate new technologies. The department will alsotake this opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

(1) Owners and operators of underground storage tank (UST) sys-tems must cooperate fully with inspections, monitoring, and testingconducted by the department, or the department’s authorized repre-sentative, as well as requests for document submission, testing, andmonitoring [by the owner or operator].

(A) Reporting. Owners and operators must submit the followinginformation to the department:

1. Notification for all UST systems [by] subject to the notifi-cation requirements in 10 CSR 26-2.022;

2. Reports of all releases including suspected releases (10 CSR26-2.050), spills and overfills (10 CSR 26-2.053), and confirmedreleases (10 CSR 26-2.071);

3. Corrective actions planned or taken including initial abate-ment measures (10 CSR 26-2.072), initial site characterization (10CSR 26-2.074), free product removal (10 CSR 26-2.075), investiga-tion of soil and groundwater cleanup (10 CSR 26-2.078), and correc-tive action plan (10 CSR 26-2.082); and

4. A notification before permanent closure or change in service(10 CSR 26-2.061).

(B) Record Keeping. Owners and operators must maintain the fol-

lowing information: 1. [A corrosion expert’s analysis of site corrosion poten-

tial if corrosion protection equipment is not used (10 CSR26-2.020(1)(A)4. and (1)(B)4.);] Installation records for sec-ondary containment of double-walled equipment, includingtanks, piping, containment sumps, and spill basins, installedafter July 1, 2017;

2. Documentation of operation of corrosion protection equip-ment (10 CSR 26-2.031);

3. Documents demonstrating compatibility of UST systems,including tanks, piping, release detection equipment, and allother ancillary equipment with the regulated substance beingstored (10 CSR 26-2.032);

[3.]4. Documentation of UST system repairs (10 CSR 26-2.033[(2)(H)]);

5. Documentation demonstrating spill and overfill preven-tion equipment is being properly maintained, inspected, and test-ed (10 CSR 26-2.030);

6. Documentation of containment sump testing results (10CSR 26-2.035);

7. Documentation of periodic walk-through inspections (10CSR 26-2.036);

[4.]8. Recent compliance with release detection requirements(10 CSR 26-2.04[5]8); [and]

[5.]9. Results of the site investigation conducted at permanentclosure (10 CSR 26-2.064)[.]; and

10. Documentation demonstrating compliance with the oper-ator training rule (10 CSR 100-6).

AUTHORITY: sections 319.107 and 319.111, RSMo 2000, and section319.137, RSMo Supp. [2010] 2013. This rule originally filed as 10CSR 20-10.034. Original rule filed April 2, 1990, effective Sept. 28,1990. Amended: Filed Aug. 3, 1993, effective April 9, 1994. Movedand amended: Filed April 15, 2011, effective Dec. 30, 2011.Amended: Filed Aug. 15, 2016.






Vol. 41, No. 18



Regulations

PROPOSED RULE

10 CSR 26-2.035 Testing of Containment Sumps

PURPOSE: This rule contains the requirements for testing the newlyrequired containment sumps associated with underground storagetank systems.

PUBLISHER’S NOTE: The secretary of state has determined thatthe publication of the entire text of the material which is incorporatedby reference as a portion of this rule would be unduly cumbersomeor expensive. This material as incorporated by reference in this ruleshall be maintained by the agency at its headquarters and shall bemade available to the public for inspection and copying at no morethan the actual cost of reproduction. This note applies only to the ref-erence material. The entire text of the rule is printed here.

(1) Owners and operators of underground storage tank (UST) sys-tems with containment sumps required by 10 CSR 26-2.020 and/or10 CSR 26-2.021, must ensure the continued integrity of requiredcontainment sumps by meeting one (1) of the following requirements:

(A) The containment sump has two (2) walls and the integrity ofboth walls is monitored annually; or

(B) The containment sump primary wall is tested at least trienni-ally to ensure the equipment is liquid-tight by using vacuum, pres-sure, or liquid testing in accordance with one (1) of the following cri-teria:

1. Requirements developed by the manufacturer (Note: Ownersand operators may use this option only if the manufacturer has devel-oped testing requirements.);

2. An interstitial test or containment sump test listed by theNational Work Group on Leak Detection Evaluations. To obtaincopies of equipment certifications, contact the National Work Groupfor Leak Detection Evaluations, www.nwglde.org; or

3. Petroleum Equipment Institute RP 1200-12, RecommendedPractices for the Testing and Verification of Spill, Overfill, LeakDetection and Secondary Containment Equipment at UST Facilities.This document is incorporated by reference without any later amend-ments or modifications. To obtain a copy, contact the PetroleumEquipment Institute, Box 2380, Tulsa, OK 74101-2380, (918) 494-9696, www.pei.org; or

4. Another method approved by department, including code(s)of practice developed by a nationally recognized association(s) orindependent testing laboratory(ies), determined to be no less protec-tive of human health and the environment than the requirements list-ed in paragraphs 1. through 3. of this subsection.

(2) Owners and operators must maintain record(s) of the requiredcontainment sump monitoring for twelve (12) months or test(s)required by this rule until the next test is performed.

AUTHORITY: sections 319.105 and 319.107, RSMo 2000, and section319.137, RSMo Supp. 2015. Original rule filed Aug. 15, 2016.


PRIVATE COST: This proposed rule will not cost private entitiesmore than five hundred dollars ($500) in the aggregate. The privateentity fiscal cost impacts for compliance with the federal standardsare accounted for in the federal rulemakings.





Regulations

PROPOSED RULE

10 CSR 26-2.036 Operation and Maintenance WalkthroughInspections

PURPOSE: This rule contains the new requirements for walkthroughinspections of underground storage tank systems.

PUBLISHER’S NOTE: The secretary of state has determined that thepublication of the entire text of the material which is incorporated byreference as a portion of this rule would be unduly cumbersome orexpensive. This material as incorporated by reference in this ruleshall be maintained by the agency at its headquarters and shall bemade available to the public for inspection and copying at no morethan the actual cost of reproduction. This note applies only to the ref-erence material. The entire text of the rule is printed here.

(1) To properly operate and maintain underground storage tank(UST) systems, owners and operators must ensure the followingrequirements are met by the timeframes outlined in section (2):

(A) Conduct a walkthrough inspection that, at a minimum, checksthe following equipment as specified below:

1. Every thirty (30) days, owners and operators must—A. For spill prevention equipment - visually check for any

damage; remove liquid or debris; check for and remove obstructionsin the fill pipe, check the fill cap to make sure it is securely on thefill pipe; and for double-walled spill prevention equipment with inter-stitial monitoring, check for a leak in the interstitial area;

B. For release detection systems - check to make sure therelease detection system is operating with no alarms or other unusualoperating conditions present; and ensure records of release detectiontesting are reviewed monthly and are current;

2. Annually, owners and operators must—A. For containment sumps required in 10 CSR 26-2.020 or

10 CSR 26-2.021, including tank top or submersible turbine pump,under-dispenser, and transition or intermediate sumps - visuallycheck for any damage, leaks to the containment sump area, or releas-es to the environment; remove any liquid or debris; and for double-walled containment sumps, check for a leak in the interstitial area;

B. For hand held release detection equipment - check devicessuch as tank gauge sticks for operability and serviceability.


(2) The first walkthrough inspections in section (1) are due—(A) Immediately upon installation for new UST systems installed

after July 1, 2017; or(B) No later than January 1, 2020, for existing UST systems.

(3) Owners and operators may use the following codes to complywith this rule:

(A) Petroleum Equipment Institute RP 500-11, RecommendedPractices for Inspection and Maintenance of Motor Fuel DispensingEquipment. This document is incorporated by reference without anylater amendments or modifications. To obtain a copy, contact thePetroleum Equipment Institute, Box 2380, Tulsa, OK 74101-2380,(918) 494-9696, www.pei.org;

(B) Petroleum Equipment Institute RP 900-08, RecommendedPractices for Inspection and Maintenance of UST Systems. This doc-ument is incorporated by reference without any later amendments ormodifications. To obtain a copy, contact the Petroleum EquipmentInstitute, Box 2380, Tulsa, OK 74101-2380, (918) 494-9696,www.pei.org.

(4) Owners and operators must maintain records (in accordance with10 CSR 26-2.034) of operation and maintenance walkthrough inspec-tions for one (1) year. The record must include a listing of each areachecked, whether each area checked was acceptable or needed tohave any action taken, and a description of any actions taken to cor-rect an issue.





Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the Hazardous WasteProgram at PO Box 176, Jefferson City, MO 65102-0176. To be accept-ed, written comments must be postmarked by midnight on October 27,2016. Email comments shall be sent to [email protected] direct all inquiries to the Rules Coordinator of the HazardousWaste Program, at 1730 E. Elm, Jefferson City, MO 65102, telephone(573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.040 General Requirements for Release Detection for

All Underground Storage Tank Systems. The commission isproposing to amend sections (1) and (2) of this rule.



(1) Owners and operators of underground storage tank (UST) sys-tems that are in use must use a method, or combination of methods,[or] of release detection that—

(B) Is installed, calibrated, operated, tested, and maintained inaccordance with the manufacturer’s instructions, including routinemaintenance and service checks for operability or running condi-tion[; and]. If manufacturer’s test methods are not available, theannual operability test may be conducted in accordance with acode of practice developed by a nationally recognized associationor independent testing laboratory or a method approved by thedepartment. Operability test reports must, at a minimum,include facility name and address, components tested, model andserial number (if legible), testing date, test method, technicianname and affiliation, and a certification of results;

(C) For existing sites, the first test is due not later thanJanuary 1, 2020. Electronic and mechanical release detectionequipment must be tested annually for proper operation, inaccordance with subsection (B) of this section. A test of the prop-er operation must be performed at least annually and, at a min-imum and as applicable to the facility, cover the following com-ponents and criteria:

1. Automatic tank gauge and other controllers: test alarm;verify system configuration; test battery backup;

2. Probes and sensors: inspect for residual buildup; ensurefloats move freely; ensure shaft is not damaged; ensure cables arefree of kinks, bends, and breaks; test alarm operability and com-munication with controller; and

3. Vacuum pumps and pressure gauges: ensure proper com-munication with sensors and controller;

[(C)](D) Meets the performance requirements for tanks in 10 CSR26-2.043 or 10 CSR 26-2.046 for field constructed tanks, or forpiping in 10 CSR 25-2.044 or 10 CSR 26-2.047 for bulk piping,with any performance claims and their manner of determinationdescribed in writing by the equipment manufacturer or installer. Inaddition, all release detection methods must be capable of detectingthe leak rate or quantity specified for [that tank] the method in 10CSR 26-2.043, [or piping method in] 10 CSR 26-2.044, 10 CSR26-2.046, or 10 CSR 26-2.047, as appropriate, with a probabilityof detection of ninety-five percent (95%) and a probability of falsealarm of five percent (5%); and

[(D)](E) All release detection methods and equipment must beconducted and operated in accordance with the applicable NationalWork Group on Leak Detection Evaluations [(NWGLDE) certifica-tion] listing, unless otherwise approved by the department. To obtaincopies of equipment [certifications] listings, contact the NationalWork Group [for] on Leak Detection Evaluations, www.nwglde.org.


Vol. 41, No. 18

(2) When a release detection method for tanks in 10 CSR 26-2.043or 10 CSR 26-2.046 or for piping in 10 CSR 26-2.044 or 10 CSR26-2.047 indicates a release may have occurred, owners and opera-tors must notify the department in accordance with 10 CSR 26-2.050–10 CSR 26-2.053.

AUTHORITY: sections 319.105, 319.107, and 319.111, RSMo 2000,and section 319.137, RSMo Supp. [2010] 2013. This rule originallyfiled as 10 CSR 20-10.040. Original rule filed April 2, 1990, effectiveSept. 28, 1990. Amended: Filed Aug. 3, 1993, effective April 9,1994. Moved and amended: Filed April 15, 2011, effective Dec. 30,2011. Amended: Filed Aug. 15, 2016.







Regulations

PROPOSED AMENDMENT

10 CSR 26-2.041 Requirements for Petroleum UndergroundStorage Tank Systems. The commission is proposing to amend sec-tions (1) and (2) of this rule.



(1) Owners and operators of petroleum underground storage tanks(UST) systems that are in use must provide release detection fortanks and piping as follows:

(A) Tanks. Tanks must be monitored at least every thirty (30) daysfor releases using one (1) of the methods listed in 10 CSR 26-2.043(1)(B)–(I), except that—

1. UST systems that meet new or upgraded standards in 10 CSR26-2.020 or 10 CSR 26-2.021 and the monthly inventory controlrequirements in 10 CSR 26-2.043(1)(A) may use tank tightness test-ing (10 CSR 26-2.043(1)(D)) at least every five (5) years untilDecember 22, 1998, or until ten (10) years after the tank is installedor upgraded under 10 CSR 26-2.021(3), whichever is later;

2. Tanks with a capacity of [five hundred fifty (550)] twothousand (2,000) gallons or less may use manual tank gauging (10CSR 26-2.043(1)(C)); [and]

3. Field-constructed tanks greater than fifty thousand(50,000) gallons may use the alternative release detection require-ments in 10 CSR 26-2.046;

4. Groundwater monitoring (10 CSR 26-2.043 subsection(1)(G)) will no longer be valid to monitor for releases after July1, 2020;

5. Vapor monitoring (10 CSR 26-2.043 subsection (1)(F))will no longer be valid to monitor for releases after July 1, 2020,if used with an added tracer chemical and listed by the NationalWork Group on Leak Detection Evaluations as a tank tightnesstest; and

6. Tanks installed after July 1, 2017, must be monitored forleaks at least every thirty (30) days in accordance with 10 CSR26-2.043(H);

(B) Piping. Underground piping that routinely contains regulatedsubstances must be monitored for releases in a manner that meetsone (1) of the following requirements:

1. Pressurized piping. Underground piping that conveys regulat-ed substances under pressure must—

A. Be equipped with an automatic line leak detector in 10CSR 26-2.044(1)(A); [and]

B. Have an annual line tightness test conducted in accordancewith 10 CSR 26-2.044(1)(B) or have monthly monitoring conductedin accordance with 10 CSR 26-2.044(1)(C); and

C. New or replaced piping installed after July 1, 2017,must be monitored for releases at least every thirty (30) days inaccordance with 10 CSR 26-2.043 subsection (1)(H);

2. Suction piping. Underground piping that conveys regulatedsubstances under suction must either have a line tightness test con-ducted at least every three (3) years and in accordance with 10 CSR26-2.044(1)(B) or use a monthly monitoring method conducted inaccordance with 10 CSR 26-2.044(1)(C). New or replaced pipinginstalled after July 1, 2017, must be monitored for releases atleast every thirty (30) days in accordance with 10 CSR 26-2.043subsection (1)(H). No release detection is required for suction pip-ing that is designed and constructed to meet the following standards:

A. The below-grade piping operates at less than atmosphericpressure;

B. The below-grade piping is sloped so that the contents ofthe pipe will drain back into the storage tank if the suction isreleased;

C. Only one (1) check valve is included in each suction line; D. The check valve is located directly below and as close as

practical to the suction pump; and E. A method is provided that allows compliance with sub-

paragraphs (1)(B)2.A.–D. of this rule to be readily determined (for


example, the check valve can be visually inspected); and3. Gravity piping and remote fill piping are exempt from the

piping line leak detection requirements in this section[.]; and4. Underground bulk piping associated with airport hydrant

fuel distribution systems and field-constructed tanks must meetone (1) of the following release detection requirements:

A. The requirements in subsection (B) of this section; orB. The alternative release detection requirements in 10

CSR 26-2.047;C. Underground bulk piping installed after July 1, 2017,

must meet the requirements in paragraph 1. or 2. of this subsec-tion.

(2) High-throughput Facilities. In addition to the requirements out-lined in section (1) of this rule, any owner of a tank or a multi-tankconnected or manifolded system that dispenses more than eight hun-dred thousand (800,000) gallons of any regulated substance in one(1) calendar month must use at least one (1) of the following tanksystem release detection methods:

(B) Vapor monitoring, including introduced chemical marker mon-itoring, [approved] listed by the National Work Group [for] onLeak Detection Evaluations (NWGLDE) for the substance stored atleast once every fifteen (15) days. To obtain copies of equipment[certifications] listings, contact the National Work Group [for] onLeak Detection Evaluations, www.nwglde.org; or

(C) Continuous in-tank release detection, which must include con-tinual reconciliation of tank system inventory. Standard statisticalinventory control is not acceptable. The method used must meet cri-teria established by the National Work Group [for] on LeakDetection Evaluations (NWGLDE) for continuous in-tank leak detec-tion methods. To obtain copies of equipment [certifications] list-ings, contact the National Work Group [for] on Leak DetectionEvaluations, www.nwglde.org; or





Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on October 27, 2016.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. Tobe accepted, written comments must be postmarked by midnight onOctober 27, 2016. Email comments shall be sent [email protected]. Please direct all inquiries to the Rules

Coordinator of the Hazardous Waste Program, at 1730 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.042 Requirements for Hazardous SubstanceUnderground Storage Tank Systems. The commission is proposingto amend section (1) of this rule and adding a new section (3).



(1) Owners and operators of in-use hazardous substance undergroundstorage tank (UST) systems must use a release detection method thatmeets the requirements of 10 CSR 26-2.041 and 10 CSR 26-2.043subsection (1)(H), except for the electronic monitoring require-ment in 10 CSR 26-2.043 paragraph (1)(H)2. with approval fromthe department.

(3) All new or replaced hazardous substance UST systemsinstalled after July 1, 2017, must also comply with the contain-ment sump testing requirements in 10 CSR 26-2.035.




NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is not


Vol. 41, No. 18

required. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.




Regulations

PROPOSED AMENDMENT

10 CSR 26-2.043 Methods of Release Detection for Tanks. Thecommission is proposing to amend section (1) of this rule and add anew section (2).


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed leak detection sys-tem requirements, and incorporate new technologies. The departmentwill also take this opportunity to clarify ambiguous or confusing lan-guage and update industry standard referenced in the regulations.

(1) Methods of release detection for underground storage tanks(USTs) used to meet the requirements in 10 CSR 26-2.041 must beconducted as follows:

(B) Statistical Inventory Reconciliation (SIR), which is a statisticalinventory analysis method that tests for the loss of a regulated sub-stance. SIR must meet the following requirements:

1. Report a quantitative result with a calculated leak rate;[1.]2. Be able to detect a two-tenths (0.2) gallon-per-hour leak

rate from any portion of the tank system that routinely contains a reg-ulated substance;

[2.]3. Must be conducted for each independent tank system;[3.]4. Be done in conjunction with inventory control that meets

the requirements in 10 CSR 26-2.043(1)(A); [and]5. Use a threshold that does not exceed one-half (1/2) the

minimum detectible leak rate;[4.]6. Be conducted in accordance with the National Work

Group on Leak Detection Evaluations [certification] listing and themanufacturer’s requirements. To obtain copies of equipment [certi-fications] listings, contact the National Work Group [for] on LeakDetection Evaluations, www.nwglde.org; and

[5. Owners and operators must maintain all supportingdata, including regulated substance and water stick read-

ings, for at least twelve (12) months.] [6.]7. The SIR analysis report must [be completed and sent

to the owner or operator within fifteen (15) days of the endof each calendar month;] include the daily data, inventorymeasurements of the regulated substance and water, deliverydata, and analysis or reporting date;

(C) Manual Tank Gauging. Manual tank gauging must meet thefollowing requirements:

1. Tank liquid level measurements are taken at the beginningand ending of a period of at least thirty-six (36) hours during whichno liquid is added to or removed from the tank;

2. Level measurements are based on an average of two (2) con-secutive stick readings at both the beginning and ending of the peri-od;

3. The equipment used is capable of measuring the level of reg-ulated substance over the full range of the tank’s height to the nearestone-eighth inch (1/8");

4. A leak is suspected and subject to the requirements of 10CSR 26-2.050–10 CSR 26-2.053 if the variation between beginningand ending measurements exceeds the following weekly or monthlystandards:

A. Tanks of five hundred fifty (550)-gallon capacity or lessare allowed a weekly standard of ten (10) gallons per reading and amonthly average of five (5) gallons per reading, with a minimumtest duration of thirty-six (36) hours;

B. Five hundred fifty-one to one thousand (551–1,000)-galloncapacity tanks are allowed a difference of thirteen (13) gallons perweek and a monthly average of seven (7) gallons, with a minimumtest duration of thirty-six (36) hours, and when combined with atank tightness test in accordance with subsection (D) of this sec-tion;

C. One thousand one to two thousand (1,001–2,000)-galloncapacity tanks are allowed a difference of twenty-six (26) gallons perweek and a monthly average of thirteen (13) gallons, with a mini-mum test duration of thirty-six (36) hours, and when combinedwith a tank tightness test in accordance with subsection (D) ofthis section;

D. Five hundred fifty-one to one thousand (551–1,000)-gal-lon capacity tanks with [dimensions] a diameter no greater thansixty-four inches (64") [by seventy-three (64"x73")] are alloweda difference of nine (9) gallons per week and monthly average of four(4) gallons, provided that a period of at least forty-four (44) hoursduring which no liquid is added to or removed from the tank isallowed to pass between tank liquid level measurements, withoutrequiring an additional tank tightness test; and

E. [One thousand (1,000)-gallon capacity tanks withdimensions of] Five hundred fifty-one to one thousand (551–1,000)-gallon capacity tanks with a diameter no greater thanforty-eight inches [by one hundred twenty-eight inches(48”x28”)] (48") are allowed a difference of twelve (12) gallons perweek and a monthly average of six (6) gallons, provided that a periodof at least fifty-eight (58) hours during which no liquid is added toor removed from the tank is allowed to pass between tank liquid levelmeasurements, without requiring an additional tank tightnesstest; and

[5. Use of manual tank gauging must comply with thefollowing size restrictions:

A. Tanks of five hundred fifty (550) gallons or lessnominal capacity may use this as the sole method of releasedetection;

B. Tanks of five hundred fifty-one to one thousand(551-1,000)- gallon capacity with dimensions no greaterthan sixty-four by seventy-three inches (64”x73”) and tanksof one thousand (1,000)-gallon capacity with dimensions offorty-eight inches by one hundred twenty-eight inches(48”x128”) may use this as the sole method of releasedetection;

C. Tanks of five hundred fifty-one to two thousand


(551-2,000) gallons may use the method in place of inven-tory control in 10 CSR 26-2.043(1)(A); and]

[D.]F. Tanks of greater than two thousand (2,000) gallonsnominal capacity may not use this method for release detection;

(E) Automatic Tank Gauging. Equipment for automatic tank gaug-ing that tests for the loss of regulated substance and conducts inven-tory control must meet the following requirements:

1. The automatic regulated substance level monitor test candetect a two-tenths (0.2)-gallon-per-hour leak rate from any portionof the tank that routinely contains a regulated substance; [and]

2. The test must be performed with the system operating inone of the following modes:

A. In-tank static testing conducted at least once everythirty (30) days; or

B. Continuous in-tank leak detection operating on anuninterrupted basis or operating within a process that allows thesystem to gather incremental measurements to determine theleak status of the tank at least once every thirty (30) days; and

[2.]3. Inventory control (or equivalent test) meeting the require-ments in 10 CSR 26-2.043(1)(A) is conducted;

(F) Vapor Monitoring. Testing or monitoring for vapors within thesoil gas of the excavation zone must meet the following requirements:

1. The materials used as backfill are sufficiently porous andpermeable (for example, gravel, sand, or crushed rock) to readilyallow diffusion of vapors from releases into the excavation area;

2. The stored regulated substance, or a tracer compound placedin the tank system, is sufficiently volatile (for example, gasoline) toresult in a vapor level that is detectable by the monitoring deviceslocated in the excavation zone in the event of a release from the tank;

3. The measurement of vapors by the monitoring device is notrendered inoperative by the groundwater, rainfall, or soil moisture orother known interferences so that a release could go undetected formore than thirty (30) days;

4. The level of background contamination in the excavation zonewill not interfere with the method used to detect releases from thetank;

5. The vapor monitors are designed and operated to detect anysignificant increase in concentration above background of the regu-lated substance stored in the tank system, a component(s) of that sub-stance, or a tracer compound placed in the tank system;

6. In the UST excavation zone, the site is assessed to ensurecompliance with the requirements in paragraphs (1)(F)1.–4. of thisrule and to establish the number and positioning of monitoring wellsthat will detect releases within the excavation zone from any portionof the tank that routinely contains a regulated substance; [and]

7. Monitoring wells are clearly marked and secured to avoidunauthorized access and tampering; and

8. After July 1, 2020, use a tracer chemical and the methodis listed by the National Work Group on Leak DetectionEvaluations as a tank tightness test;

(G) Groundwater Monitoring. Testing or monitoring for liquids onthe groundwater may only be used as a release detection methoduntil July 1, 2020, and must meet the following requirements:

1. The regulated substance stored is immiscible in water and hasa specific gravity of less than one (1);

2. The groundwater is within twenty feet (20') from the groundsurface and the hydraulic conductivity of the soil(s) between the USTsystem and the monitoring wells or devices is at least one hundredthcentimeter per second (0.01 cm/sec) (for example, the soil shouldconsist of gravels, coarse to medium sands, coarse silts, or other per-meable materials);

3. The slotted portion of the monitoring well casing must bedesigned to prevent migration of natural soils or filter pack into thewell and to allow entry of regulated substance on the water table intothe well under both high and low groundwater conditions;

4. Monitoring wells shall be sealed from the ground surface tothe top of the filter pack;

5. Monitoring wells or devices shall intercept the excavation

zone or are as close to it as is technically feasible; 6. The continuous monitoring devices or manual methods used

can detect the presence of at least one-eighth inch (1/8") of free prod-uct on top of the groundwater in the monitoring wells;

7. The site is assessed within and immediately below the USTsystem excavation zone to ensure compliance with the requirementsin paragraphs (1)(G)1.–5. of this rule. The site assessment alsoestablishes the number and positioning of monitoring wells ordevices that will detect releases from any portion of the tank that rou-tinely contains a regulated substance; and

8. Monitoring wells are clearly marked and secured to avoidunauthorized access and tampering;

(H) Interstitial Monitoring. Interstitial monitoring [between theUST system and a secondary barrier immediately around orbeneath it may be used, but only if the system is designed,constructed, and] must monitor between the walls of a double-walled tank or, for piping, is designed to detect a release from theprimary piping, including all fittings, and contain it until it canbe detected. The entire piping secondary containment must beleak tight. Interstitial monitoring must be installed to detect aleak from any portion of the tank that routinely contains a regulatedsubstance and also meets [one (1) of] the following requirements:

[1. For double-walled UST systems, the sampling ortesting method can detect a release through the inner wallin any portion of the tank that routinely contains a regulatedsubstance;

2. For UST systems with a secondary barrier within theexcavation zone, the sampling or testing method used candetect a release between the UST system and the secondarybarrier.

A. The secondary barrier around or beneath the USTsystem consists of artificially constructed material that issufficiently thick and impermeable (less than one millionthcentimeter per second (10-6 cm/sec) for the regulated sub-stance stored) to direct a release to the monitoring point andpermits its detection.

B. The barrier is compatible with the regulated sub-stance stored so that a release from the UST system will notcause a deterioration of the barrier allowing a release to passthrough undetected.

C. For cathodically protected tanks the secondary bar-rier must be installed so that it does not interfere with theproper operation of the cathodic protection system.]

[D.]1. The groundwater, soil moisture, or rainfall will not ren-der the testing or sampling method used inoperative so that a releasecould go undetected for more than thirty (30) days;

[E. The site is assessed to ensure that the secondarybarrier is always above the groundwater and not in a twen-ty-five (25)-year flood plain, unless the barrier and monitor-ing designs are for use under these conditions.

F. Monitoring wells are clearly marked and secured toavoid unauthorized access tampering;

3. For tanks with an internally fitted liner, an automateddevice can detect a release between the inner wall of thetank and the liner is compatible with the substance stored;and

4. The provisions outlined in the Steel Tank Institute’sStandard for Dual Wall Underground Storage Tanks may beused as guidance for aspects of the design and constructionof underground steel double-walled tanks; and]

2. For new UST systems installed after July 1, 2017, inter-stitial monitoring must be conducted electronically by a systemwith a report-generating capability; and

3. For UST systems using continuous vacuum, pressure, orliquid-filled methods of interstitial monitoring, the method mustbe capable of detecting a breach in both the inner and outer wallsof the tank and/or piping; and


Vol. 41, No. 18

(2) Owners and operators of field-constructed or airport hydrantfuel distribution system tanks may not use vapor monitoring orgroundwater monitoring, described in subsections (F) and (G) ofthis rule as their sole method of detection, but may use them inconjunction with 10 CSR 26-2.046.

AUTHORITY: sections 319.105 and 319.107, RSMo 2000, and section319.137, RSMo Supp. [2010] 2013. This rule originally filed as 10CSR 20-10.043. Original rule filed April 2, 1990, effective Sept. 28,1990. Amended: Filed Aug. 3, 1993, effective April 9, 1994. Movedand amended: Filed April 15, 2011, effective Dec. 30, 2011.Amended: Filed Aug. 15, 2016.







Regulations

PROPOSED AMENDMENT

10 CSR 26-2.044 Methods of Release Detection for Piping. Thecommission is proposing to amend section (1) of this rule.


The second reason is to incorporate state-specific changes. The

proposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, establish clearer and more detailed release detectionsystem requirements, and incorporate new technologies. The depart-ment will also take this opportunity to clarify ambiguous or confusinglanguage and update industry standard referenced in the regulations.

(1) Each method of release detection for piping used to meet therequirements of release detection for underground storage tanks(USTs) in 10 CSR 26-2.041 must be conducted in the following man-ner:

(A) Automatic Line Leak Detectors. Methods which alert theoperator to the presence of a leak by restricting or shutting off theflow of regulated substances through piping or triggering an audibleor visual alarm may be used only if they detect leaks of three (3) gal-lons per hour at ten (10) pounds per square-inch line pressure withinone (1) hour and are [certified] listed by the National Work Groupon Leak Detection Evaluations. To obtain copies of equipment [cer-tifications] listings, contact the National Work Group [for] on LeakDetection Evaluations, www.nwglde.org. A test of the operation ofthe leak detector must be conducted at least annually. The annualtest must be conducted in accordance with the manufacturer’sapproved testing procedures[.] and simulate a leak of at least three(3) gallons per hour at ten (10) pounds per square inch pressure,or equivalent, in the system under normal operating conditions.

1. Line leak detectors must monitor all pressurized piping,including pressurized piping beyond the first or master dispenser butnot including other piping above the shear valve inside the dispenseror dispenser hoses to the nozzle[.];

[2. Line leak detector operability test reports mustinclude facility name and address, line leak detector manu-facturer, model and serial number, if legible, testing date,test method, technician name and affiliation, and a certifica-tion of results;]

(C) Applicable Tank Methods. Any of the methods in 10 CSR 26-2.043(1)(B) and (F)-(I) may be used if they are designed to detect arelease from any portion of the underground piping that routinelycontains regulated substances[; and] except—

1. Owners and operators of piping greater than fifty thou-sand (50,000) gallons associated with field-constructed tanks orairport hydrant fuel distribution system tanks may comply with10 CSR 26-2.074 in lieu of the methods of piping leak detectionin this rule;

2. Groundwater monitoring (10 CSR 26-2.043 subsection(1)(G)) can no longer be used after July 1, 2020; and

3. Vapor monitoring (10 CSR 26-2.043 subsection (1)(F)) canno longer be used after July 1, 2020, unless with an added tracerchemical and listed by the National Work Group on LeakDetection Evaluations as a tightness test; and




NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commission


will hold a public hearing on this rule action and others beginningat 10:00 a.m. on October 20, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.




Regulations

PROPOSED AMENDMENT

[10 CSR 26-2.045] 10 CSR 26-2.048 Release Detection RecordKeeping. The commission is proposing to move the rule and amendsection (1) of this rule.


The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, incorporate new technologies and update the releasedetection recordkeeping requirements. The department will also takethis opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

(1) All underground storage tank (UST) system owners and operatorsmust maintain records in 10 CSR 26-2.034 demonstrating compli-ance with applicable release detection requirements in 10 CSR 26-2.040–10 CSR 26-2.04[5]8. These records must include the follow-ing:

(A) All written performance claims of any release detection systemused, and the manner in which these claims have been justified ortested by the equipment manufacturer or installer, must be [main-tained] retained for five (5) years from the date of equipmentinstallation or for another reasonable period of time determined bythe department [from the date of installation];

(B) The results of any sampling, testing, or monitoring must be[maintained] retained for at least one (1) year, or for another rea-sonable period of time determined by the department, except that—

1. [t]The results of tank tightness testing conducted in accor-dance with 10 CSR 26-2.043(1)(D) must be retained until the nexttest is conducted; and

2. The results of annual operability tests of release detection

equipment must be retained until the next test is performed; and (C) Written documentation of all calibration, maintenance, and

repair of release detection equipment permanently located on-sitemust be [maintained] retained for at least one (1) year after the ser-vicing work is completed. Any schedules of required calibration andmaintenance provided by the release detection equipment manufac-turer must be retained for five (5) years from the date of installation.








Regulations

PROPOSED RULE

10 CSR 26-2.046 Alternative Methods of Release Detection forField-Constructed Tanks

PURPOSE: This rule contains the new options for release detectionfor the previously deferred field-constructed tanks and airporthydrant fuel distribution systems.

(1) Owners and operators of field-constructed tanks with a capacitygreater than fifty thousand (50,000) gallons may use one (1) or acombination of the following alternative methods of release detec-tion:

(A) Conduct an annual tank tightness test that can detect a one-half (0.5) gallon per hour leak rate;

(B) Use an automatic tank gauging system to perform release


Vol. 41, No. 18

detection at least every thirty (30) days that can detect a leak rate lessthan or equal to one (1) gallon per hour. This method must be com-bined with a tank tightness test that can detect a two-tenths (0.2) gal-lon per hour leak rate performed at least every three (3) years;

(C) Use an automatic tank gauging system to perform releasedetection at least every thirty (30) days that can detect a leak rate lessthan or equal to two (2) gallons per hour. This method must be com-bined with a bulk tank tightness test that can detect a two-tenths (0.2)gallon per hour leak rate performed at least every two (2) years;

(D) Perform vapor monitoring, with an added tracer chemical,conducted in accordance with 10 CSR 26-2.043 subsection (1)(F),capable of detecting a one-tenth (0.1) gallon per hour leak rate atleast every two (2) years;

(E) Perform inventory control, conducted in accordance withDepartment of Defense Directive 4140.25; ATA Airport Fuel FacilityOperations and Maintenance Guidance Manual, at least every thirty(30) days that can detect a leak equal to or less than one-half percent(0.5%) of flow-through. When using this method, the followingmust also be met:

1. Perform a tank tightness test that can detect a one-half (0.5)gallon per hour leak rate at least every two (2) years; or

2. Perform vapor monitoring or groundwater monitoring inaccordance with 10 CSR 26-2.043 subsection (1)(F) or (G), respec-tively, at least every thirty (30) days; and

(F) Another method approved by the department if the owner andoperator can demonstrate that the method can detect a release aseffectively as any of the methods allowed in subsections (A) through(C) of this section. In comparing methods, the department shall con-sider the size of release that the method can detect and the frequencyand reliability of detection. If the method is approved, the owner andoperator must comply with any conditions imposed by the depart-ment on its use.




NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 10:00 a.m. on June 16, 2011, at the Elm Street Conference Center,1738 East Elm Street, Jefferson City, Missouri. Any interested personwill have the opportunity to testify. Advance notice is not required.However, anyone who wants to make arrangements to testify may doso prior to the hearing by contacting the secretary of the HazardousWaste Management Commission at (573) 751-2747.

Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on June 23, 2011.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. Tobe accepted, written comments must be postmarked by midnight onJune 23, 2011. Email comments shall be sent [email protected]. Please direct all inquiries to the RulesCoordinator of the Hazardous Waste Program, at 1738 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED RULE

10 CSR 26-2.047 Alternative Methods of Release Detection forBulk Underground Piping

PURPOSE: This rule contains the new options for release detectionfor the previously deferred field-constructed tanks and airporthydrant fuel distribution piping systems.

(1) Owners and operators of bulk underground piping associated withany airport hydrant fuel distribution systems and field-constructedtanks greater than fifty thousand (>50,000) gallons may use one (1)or a combination of the following alternative methods of releasedetection:

(A) Perform a biannual or annual bulk line tightness test at orabove operating pressure in accordance with the table below. Bulkpiping segments greater than or equal to one hundred thousand(≥100,000) gallons not capable of meeting the maximum three (3.0)gallons per hour leak rate for the biannual test may be tested at a leakrate up to six (6.0) gallons per hour:

(B) Perform vapor monitoring, with an added tracer chemical,conducted in accordance with 10 CSR 26-2.043(F), capable ofdetecting a one-tenth (0.1) gallon per hour leak rate at least everytwo (2) years;

(C) Perform inventory control, conducted in accordance withDepartment of Defense Directive 4140.25; ATA Airport Fuel FacilityOperations and Maintenance Guidance Manual, at least every thirty(30) days that can detect a leak equal to or less than one-half percent(0.5%) of flow-through. When using this method, the following mustalso be met:

1. Perform a line tightness test in accordance with the biannualtest threshold in subsection (A) of this section at least every two (2)years; or

2. Perform vapor monitoring or groundwater monitoring inaccordance with 10 CSR 26-2.043 subsection (1)(F) or (G), respec-tively, at least every thirty (30) days;

(D) Another method approved by the department if the owner andoperator can demonstrate that the method can detect a release aseffectively as any of the methods allowed in subsections (A) through(C). In comparing methods, the department shall consider the size ofrelease that the method can detect and the frequency and reliabilityof detection. If the method is approved, the owner and operator mustcomply with any conditions imposed by the department on its use.


PUBLIC COST: This proposed rule will not cost state agencies or


Maximum Detectable Leak Rate Per Test Section Volume

Test Section Volume (Gallons)

Biannual Test Maximum Detectable Leak Rate (Gallons Per Hour)

Annual Test Maximum Detectable Leak Rate (Gallons Per Hour)

< 50,000 1.0 0.5

50,000 to < 75,000 1.5 0.75

75,000 to < 100,000 2.0 1.0

100,000 3.0 1.5

political subdivisions more than five hundred dollars ($500) in theaggregate. The public entity fiscal cost impacts for compliance withthe federal standards are accounted for in the federal rulemakings.


NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 10:00 a.m. on June 16, 2011, at the Elm Street Conference Center,1738 East Elm Street, Jefferson City, Missouri. Any interested per-son will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.

Any person may submit written comments on this rule action. besent to the director of the Hazardous Waste Program at PO Box 176,Jefferson City, MO 65102-0176. To be accepted, written commentsmust be postmarked by midnight on June 23, 2011. Email commentsshall be sent to [email protected]. Please direct allinquiries to the Rules Coordinator of the Hazardous Waste Program,at 1738 E. Elm, Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED AMENDMENT

10 CSR 26-2.050 Reporting of Suspected Releases. The commis-sion is proposing to amend section (1) of this rule.



(1) Owners and operators of underground storage tank (UST) sys-tems must report to the department within twenty-four (24) hoursand follow the procedures for release investigation and confirmationin 10 CSR 26-2.052 upon discovery of one (1) or more of the follow-ing conditions:

(B) Unusual operating conditions observed by owners and opera-tors (such as the erratic behavior of product dispensing equipment,the sudden loss of a regulated substance from the UST system, anunexplained presence of water in the tank, liquid in the interstitialspace of secondarily contained systems, or visible leaks fromaboveground piping or ancillary equipment connected to a UST),unless system equipment is found to be defective but not [leaking]

releasing regulated substance from the UST system and is imme-diately repaired or replaced; or

(C) Monitoring results, including investigations of leak alarms,from a release detection method required under 10 CSR 26-2.041[and] through 10 CSR 26-2.04[2]7 that indicate a release may haveoccurred unless—

1. The monitoring device is found to be defective and is imme-diately repaired, recalibrated, or replaced and additional monitoringdoes not confirm the initial result; or

2. The leak alarm was investigated and determined to havebeen caused by an event other than a release (for example, apower surge or delivery to the tank during release detection test-ing); or

[2.]3. In the case of inventory control, a second month of datadoes not confirm the initial result.

AUTHORITY: section 319.109, RSMo Supp. [2010] 2013. This ruleoriginally filed as 10 CSR 20-10.050. Original rule filed April 2,1990, effective Sept. 28, 1990. Moved and amended: Filed April 15,2011, effective Dec. 30, 2011. Amended: Filed Aug. 15, 2016.







Regulations

PROPOSED AMENDMENT

10 CSR 26-2.052 Release Investigation and Confirmation Steps.The commission is proposing to amend section (1) of this rule.

PURPOSE: There are two (2) primary purposes for this rulemaking.The first is to open UST rules in Title 10, Division 26 of the Code ofState Regulations to make the necessary changes required by theU.S. Environmental Protection Agency (EPA). The 2005 Energy


Vol. 41, No. 18

Policy Act required either financial responsibility for UST installersand manufacturers or secondary containment for all new systems. Inaddition, last October, EPA adopted changes to the federal UST reg-ulations that need to be incorporated into state regulation. This rule-making will make the necessary changes to comply with these EPAgrant requirements and to incorporate the changes made to the fed-eral regulations.

The second reason is to incorporate state-specific changes. Theproposed changes would better ensure that old tanks are still func-tional enough to remain in use. The changes would better prevent anddetect leaks, outline the requirements for responding to suspectedreleases, and incorporate new technologies. The department will alsotake this opportunity to clarify ambiguous or confusing language andupdate industry standard referenced in the regulations.

(1) Unless corrective action is initiated in accordance with 10 CSR26-2.070–10 CSR 26-2.083, owners and operators must immediatelyinvestigate and confirm all suspected releases of regulated substancesrequiring reporting under 10 CSR 26-2.050 within seven (7) days oranother reasonable time period specified by the department usingeither the following steps or another procedure approved by thedepartment:

(A) System Test. Owners and operators must conduct tests [(tight-ness testing of tanks in 10 CSR 26-2.043(1)(D) and pipingin 10 CSR 26-2.044(1)(B))] appropriate for the suspectedrelease, using tightness tests listed by the National Work Groupon Leak Detection Evaluations and/or approved by the depart-ment, or for containment sumps, a test method included in 10CSR 26-2.035, to determine whether a leak exists in that portion ofthe tank system that routinely contains a regulated substance [or theattached delivery piping] or [both] a breach of the interstitialspace has occurred. To obtain copies of equipment listings, con-tact the National Work Group on Leak Detection Evaluations,www.nwglde.org.

1. If the system test confirms a leak into the interstice or arelease, [O]owners and operators must repair, replace, [or] upgrade,or close the underground storage tank (UST) system[, and]. Ownersand operators must begin a site check in accordance with subsec-tion (1)(B) and corrective action in accordance with 10 CSR 26-2.070–10 CSR 26-2.083 if the test results for the system, tank, ordelivery piping indicate that a [leak] release [exists] has occurred.

2. Further investigation is not required if the test results for thesystem, tank, and delivery piping do not indicate that a [leak] releaseexists and if environmental contamination is not the basis for sus-pecting a release.

3. Owners and operators must conduct a site check as describedin subsection (1)(B) of this rule if the test results for the system, tank,and delivery piping do not indicate that a leak exists but environmen-tal contamination is the basis for suspecting a release; or

AUTHORITY: sections 319.105 and 319.107, RSMo 2000, and sec-tions 319.109 and 319.137, RSMo Supp. [2010] 2013. This ruleoriginally filed as 10 CSR 20-10.052. Original rule filed April 2,1990, effective Sept. 28, 1990. Amended: Filed Aug. 3, 1993, effec-tive April 9, 1994. Moved and amended: Filed April 15, 2011, effec-tive Dec. 30, 2011. Amended: Filed Aug. 15, 2016.





Title 13—DEPARTMENT OF SOCIAL SERVICESDivision 70—MO HealthNet DivisionChapter 10—Nursing Home Program

PROPOSED AMENDMENT

13 CSR 70-10.030 Prospective Reimbursement Plan for Nonstate-Operated Facilities for ICF/[MR]IID Services. The division isamending sections (1)–(7) and adding new subparagraphs (4)(A)1.O.and (4)(A)1.P.

PURPOSE: This amendment changes the terminology of the servicesaddressed in this regulation from “nonstate-operated intermediatecare facility/mentally retarded (ICF/MR) services” to “nonstate-operated intermediate care facility for individuals with intellectualdisabilities (ICF/IID) services” and provides for trend factors to beapplied to adjust per diem rates for nonstate-operated ICF/IID facil-ities participating in the MO HealthNet program.

PURPOSE: This rule establishes a payment plan for nonstate-oper-ated intermediate care facility[/mentally retarded] for individualswith intellectual disabilities services. The plan describes principlesto be followed by Title XIX intermediate care facility[/mentallyretarded] for individuals with intellectual disabilities providers inmaking financial reports and presents the necessary procedures forsetting rates, making adjustments, and auditing the cost reports.

(1) Objectives. This rule establishes a payment plan for nonstate-operated intermediate care facility[/mentally retarded] for individ-uals with intellectual disabilities (ICF/[MR]IID) services.

(2) General Principles.(A) The MO HealthNet program shall reimburse qualified

providers of ICF/[MR]IID services based solely on the individualMO HealthNet participant’s days of care (within benefit limitations)multiplied by the facility’s Title XIX per diem rate less any paymentsmade by participants.

(B) Effective November 1, 1986, the Title XIX per diem rate forall ICF/[MR]IID facilities participating on or after October 31,1986, shall be the lower of—

1. The average private pay charge;2. The Medicare per diem rate, if applicable;3. The rate paid to a facility on October 31, 1986, as adjusted by

updating its base year to its 1985 fiscal year. Facilities which do nothave a full twelve- (12-) month 1985 fiscal year shall not have theirbase years updated to their 1985 fiscal years. Changes in ownership,management, control, operation, leasehold interests by whatever form


Volume 41, Number 19Pages 1253–1458October 3, 2016

M I S S O U R IR E G I S T E R

Jason KanderSecretary of State

S A L U S P O P U L I S U P R E M A L E X E S T O“ T h e w e l f a r e o f t h e p e o p l e s h a l l b e t h e s u p r e m e l a w . ”

Page 1308 Proposed RulesOctober 3, 2016Vol. 41, No. 19

8. Liberty (Fountain Bluff Park Ponds Nos. 1, 2, 3, 4, 5, 6, 7,and 8);

9. Macon County (Fairgrounds Lake);10. Mineral Area College (Quarry Pond);11. Overland (Wild Acres Park Lake);12. Potosi (Roger Bilderback Lake);13. Raymore (Johnston Lake);14. St. Charles (Fountain Lakes Pond, Kluesner Lake, Moore

Lake, Skate Park Lake);15. St. Louis (Benton Park Lake, Boathouse Lake, Fairgrounds

Park Lake, Horseshoe Lake, Hyde Park Lake, Jefferson Lake,Lafayette Park Lake, North Riverfront Park Lake, O’Fallon ParkLake, North Lake, South Lake);

16. St. Louis County (Bee Tree Park Lake, Blackjack Lake,Carp Lake, Creve Coeur Park Lake, Fountain Lake, Island Lake,Jarville Lake, Simpson Park Lake, Spanish Lake, Sunfish Lake,Tilles Park Lake);

17. Sedalia (Clover Dell Park Lake, Liberty Park Pond);18. Sedalia Water Department (Spring Fork Lake);19. Warrensburg (Lions Lake);20. Watershed Committee of the Ozarks (Valley Water Mill

Lake);21. Wentzville (Community Club Lake, Heartland Lake); and22. Windsor (Farrington Park Lake).

AUTHORITY: sections 40 and 45 of Art. IV, Mo. Const. and section252.040, RSMo 2000. This rule previously filed as 3 CSR 10-4.116.Original rule filed April 30, 2001, effective Sept. 30, 2001. For inter-vening history, please consult the Code of State Regulations.Amended: Filed Aug. 29, 2016.


PRIVATE COST: This proposed amendment will not cost private enti-ties more than five hundred dollars ($500) in the aggregate.

NOTICE TO SUBMIT COMMENTS: Anyone may file a statement insupport of or in opposition to this proposed amendment withRegulations Committee Chairman, Department of Conservation, POBox 180, Jefferson City, MO 65102-0180, or via the department’swebsite at http://short.mdc.mo.gov/Z49. To be considered, com-ments must be received within thirty (30) days after publication ofthis notice in the Missouri Register. No public hearing is scheduled.



Regulations

PROPOSED RULE

10 CSR 26-2.046 Alternative Methods of Release Detection forField-Constructed Tanks

PURPOSE: This rule contains the new options for release detectionfor the previously deferred field-constructed tanks and airporthydrant fuel distribution systems.

(1) Owners and operators of field-constructed tanks with a capacitygreater than fifty thousand (50,000) gallons may use one (1) or acombination of the following alternative methods of release detec-tion:

(A) Conduct an annual tank tightness test that can detect a one-half (0.5) gallon per hour leak rate;

(B) Use an automatic tank gauging system to perform releasedetection at least every thirty (30) days that can detect a leak rate lessthan or equal to one (1) gallon per hour. This method must be com-bined with a tank tightness test that can detect a two-tenths (0.2) gal-lon per hour leak rate performed at least every three (3) years;

(C) Use an automatic tank gauging system to perform releasedetection at least every thirty (30) days that can detect a leak rate lessthan or equal to two (2) gallons per hour. This method must be com-bined with a bulk tank tightness test that can detect a two-tenths (0.2)gallon per hour leak rate performed at least every two (2) years;

(D) Perform vapor monitoring, with an added tracer chemical,conducted in accordance with 10 CSR 26-2.043 subsection (1)(F),capable of detecting a one-tenth (0.1) gallon per hour leak rate atleast every two (2) years;

(E) Perform inventory control, conducted in accordance withDepartment of Defense Directive 4140.25; ATA Airport Fuel FacilityOperations and Maintenance Guidance Manual, at least every thirty(30) days that can detect a leak equal to or less than one-half percent(0.5%) of flow-through. When using this method, the followingmust also be met:

1. Perform a tank tightness test that can detect a one-half (0.5)gallon per hour leak rate at least every two (2) years; or

2. Perform vapor monitoring or groundwater monitoring inaccordance with 10 CSR 26-2.043 subsection (1)(F) or (G), respec-tively, at least every thirty (30) days; and

(F) Another method approved by the department if the owner andoperator can demonstrate that the method can detect a release aseffectively as any of the methods allowed in subsections (A) through(C) of this section. In comparing methods, the department shall con-sider the size of release that the method can detect and the frequencyand reliability of detection. If the method is approved, the owner andoperator must comply with any conditions imposed by the depart-ment on its use.




NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 9:30 a.m. on November 3, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.

Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on November 10, 2016.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. Tobe accepted, written comments must be postmarked by midnight onNovember 10, 2016. Email comments shall be sent [email protected]. Please direct all inquiries to the RulesCoordinator of the Hazardous Waste Program, at 1730 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.



Regulations

PROPOSED RULE

10 CSR 26-2.047 Alternative Methods of Release Detection forBulk Underground Piping

PURPOSE: This rule contains the new options for release detectionfor the previously deferred field-constructed tanks and airporthydrant fuel distribution piping systems.

(1) Owners and operators of bulk underground piping associated withany airport hydrant fuel distribution systems and field-constructedtanks greater than fifty thousand (>50,000) gallons may use one (1)or a combination of the following alternative methods of releasedetection:

(A) Perform a biannual or annual bulk line tightness test at orabove operating pressure in accordance with the table below. Bulkpiping segments greater than or equal to one hundred thousand(≥100,000) gallons not capable of meeting the maximum three (3.0)gallons per hour leak rate for the biannual test may be tested at a leakrate up to six (6.0) gallons per hour:

(B) Perform vapor monitoring, with an added tracer chemical,conducted in accordance with 10 CSR 26-2.043(F), capable ofdetecting a one-tenth (0.1) gallon per hour leak rate at least everytwo (2) years;

(C) Perform inventory control, conducted in accordance withDepartment of Defense Directive 4140.25; ATA Airport Fuel FacilityOperations and Maintenance Guidance Manual, at least every thirty(30) days that can detect a leak equal to or less than one-half percent(0.5%) of flow-through. When using this method, the following mustalso be met:

1. Perform a line tightness test in accordance with the biannualtest threshold in subsection (A) of this section at least every two (2)years; or

2. Perform vapor monitoring or groundwater monitoring inaccordance with 10 CSR 26-2.043 subsection (1)(F) or (G), respec-tively, at least every thirty (30) days;

(D) Another method approved by the department if the owner andoperator can demonstrate that the method can detect a release aseffectively as any of the methods allowed in subsections (A) through(C). In comparing methods, the department shall consider the size ofrelease that the method can detect and the frequency and reliabilityof detection. If the method is approved, the owner and operator mustcomply with any conditions imposed by the department on its use.


PUBLIC COST: This proposed rule will not cost state agencies or

political subdivisions more than five hundred dollars ($500) in theaggregate. The public entity fiscal cost impacts for compliance withthe federal standards are accounted for in the federal rulemakings.


NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: The Missouri Hazardous Waste Management Commissionwill hold a public hearing on this rule action and others beginningat 9:30 a.m. on November 3, 2016, at the Elm Street ConferenceCenter, 1730 East Elm Street, Jefferson City, Missouri. Any interest-ed person will have the opportunity to testify. Advance notice is notrequired. However, anyone who wants to make arrangements to tes-tify may do so prior to the hearing by contacting the secretary of theHazardous Waste Management Commission at (573) 751-2747.

Any person may submit written comments on this rule action.Interested persons, whether or not heard, may submit a written oremail statement of their views until midnight on November 10, 2016.Written comments shall be sent to the director of the HazardousWaste Program at PO Box 176, Jefferson City, MO 65102-0176. Tobe accepted, written comments must be postmarked by midnight onNovember 10, 2016. Email comments shall be sent [email protected]. Please direct all inquiries to the RulesCoordinator of the Hazardous Waste Program, at 1730 E. Elm,Jefferson City, MO 65102, telephone (573) 751-3176.

Title 11—DEPARTMENT OF PUBLIC SAFETYDivision 45—Missouri Gaming Commission

Chapter 1—Organization and Administration

PROPOSED AMENDMENT

11 CSR 45-1.100 Waivers and Variances. The commission isamending section (1).

PURPOSE: This amendment adds references to a new Code of StateRegulations chapter and a new Missouri Revised Statutes section.

(1) The commission may waive or grant a variance from the provi-sions of Title 11, Division 45, Chapters 1–[31] 40 of the Code ofState Regulations upon a licensee’s written application, if the com-mission determines that the waiver or variance is in the best interestsof the public. Any waiver or variance granted pursuant to this sectionconstitutes an order of the commission pertaining to gaming, viola-tion of which subjects a licensee to discipline under section313.812.14(2) and 313.1010, RSMo.

AUTHORITY: section[s] 313.004, RSMo Supp. 2014, [and] section313.805, RSMo [2000] Supp. 2013, and section 313.1010, HB1941, Second Regular Session, Ninety-eighth General Assembly,2016. Original rule filed Aug. 27, 2004, effective March 30, 2005.Emergency amendment filed Aug. 29, 2016, effective Sept. 8, 2016,expires March 6, 2017. Amended: Filed Aug. 29, 2016.


PRIVATE COST: This proposed amendment will not cost private enti-ties more than five hundred dollars ($500) in the aggregate.

NOTICE OF PUBLIC HEARING AND NOTICE TO SUBMIT COM-MENTS: Anyone may file a statement in support of or in oppositionto this proposed amendment with the Missouri Gaming Commission,

Page 1309October 3, 2016Vol. 41, No. 19 Missouri Register

Maximum Detectable Leak Rate Per Test Section Volume

Test Section Volume (Gallons)

Biannual Test Maximum Detectable Leak Rate (Gallons Per Hour)

Annual Test Maximum Detectable Leak Rate (Gallons Per Hour)

< 50,000 1.0 0.5

50,000 to < 75,000 1.5 0.75

75,000 to < 100,000 2.0 1.0

100,000 3.0 1.5

COMMENTS RECEIVED

1

Peters, Heather

From: Ronald J. Leone <[email protected]>

Sent: Thursday, October 27, 2016 10:35 AM

To: Peters, Heather; Sturgess, Steve

Subject: Tank Rules

Steve & Heather: As you know, the Missouri Petroleum Marketers and Convenience Store Association (MPCA) is a 300+ member statewide trade association which represents most of Missouri’s convenience stores, gas stations, truck stops, petroleum marketers and their suppliers. Please accept this email as a formal comment on the UST rules. MPCA fully supports, and fully incorporates herein by reference, the written comments being submitted by the Petroleum Storage Tank Insurance Fund (PSTIF). We also mirror and herein incorporate the concerns detailed by the 10/24/16 email from Donnie Greenwalt, Wallis Companies, printed in full below. Thank you for all of your hard work on this important issue. Please respond and verify receipt. Best, Ron Ronald J. Leone, Esq. Executive Director Missouri Petroleum Marketers & Convenience Store Ass ociation (MPCA) 205 East Capitol Avenue, Suite 200 • Jefferson City, MO 65101 | p: 573.635.7117, ext 160 | c: 573.864.5189 PACE 2017 • February 24 & February 25 • Kansas City, MO

PACE 2018 • February 22 & February 23 • Kansas City, MO www.PACEshow.com

From: Greenwalt, Donnie [mailto:[email protected]]

Sent: Monday, October 24, 2016 10:17 AM

To: Peters, Heather Cc: [email protected]; PSTIF Office

Subject: Sump Testing and Other Questions Importance: High

Good morning Heather!

I just got back from the PEI show at NACs and had a question for you after a session with Carolyn, Mark and Tim.

After 2017, as I understood it, we will have to install sumps on tank tops and under dispensers and they have to be

tested every three years. Following the presentation with EPA, I now understand that we will only have to test sumps if

we are using interstitial monitoring as our primary form of line leak detection? If we are using PLLD as primary, we

shouldn’t have to test. Is this correct? I don’t see where the new Missouri rule make this distinction.

Also, some interesting information about effective dates and compliance deadlines was also revealed (clarified). I know

we had to meet the DW requirement next year, however, according to Carolyn, we did not have to meet the same

deadlines as the EPA published in the new tanks rule. It sounded like we could have had up to three years from the

effective date of EPA’s rule to start our rulemaking process as a SPA state. Also, the SPA would not have been

2

withdrawn as long as we showed demonstrable progress towards compliance with EPA’s rule. Furthermore, I learned

that the SPA withdrawal process is not over night but a rather lengthy process. On top of that, we then could have built

in a similar 3-year compliance date into our own rule effectively pushing the first compliance deadlines for MO out at

least 6 years. Is this correct? Speaking with other operators, this is the first time this clarification has been made by

EPA.

Please let me know your thoughts. Thanks!

Donnie

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Verify that the link points to the correct file and location.

Donnie Greenwalt Environmental Comp. Mgr 106 E Washington, Cuba, MO 65453 P: (636)549-1611 | F: (636)549-1617 www.wallisco.com

This message contains confidential information and is intended only for the individual(s) addressed in the message. If you are not the named addressee, you

should not disseminate, distribute, or copy this e-mail. If you are not the intended recipient, you are notified that disclosing, distributing, or copying this e-mail

is strictly prohibited.

1

Peters, Heather

From: Ronald J. Leone <[email protected]>

Sent: Thursday, October 27, 2016 3:27 PM

To: Greenwalt, Donnie

Cc: Peters, Heather; Sturgess, Steve; [email protected]; Andreasson, Rachel;

Wallis, Lynn; PSTIF Office

Subject: Re: Comments on Proposed UST Rule Changes

Steve & Heather: MPCA supports these comments and incorporates them into our email of earlier today.

Thanks,

Ronald J. Leone, Esq.

MPCA Executive Director

573.864.5189

On Oct 27, 2016, at 3:03 PM, Greenwalt, Donnie <[email protected]> wrote:

Good afternoon,

Please accept this email correspondence as Wallis Companies’ formal comment on Missouri’s proposed

changes to the Underground Storage Tank Rules.

Wallis greatly appreciates the efforts that the Missouri Department of Natural Resources has made

working with stakeholders to implement the provisions of EPA’s revised rules. Missouri has a uniquely

collaborative regulatory environment that few other states enjoy. This collaboration offers stakeholders

and regulators the chance to have constructive dialogue on the rules that govern our industry and the

opportunity to ultimately produce a rule package that satisfies the interests of both.

In general, we find the substance of the rule to be agreeable with no major issues. We do, however,

offer the following:

1) Wallis Companies (Wallis) has concerns regarding the definition of “connected piping” and

“underground storage tank”. Although we do not have alternative language to propose, we

would like to have some clarification and suggest that the shear-valve be used as a line of

regulatory demarcation in lieu of the terms “above” and “below” ground.

2) Wallis is concerned with the lack of fiscal analysis provided by the Department regarding the

new equipment testing requirements. Although, the Federal EPA provided their own fiscal

analysis, we do not feel as though it is an accurate representation of the true costs of

compliance. This ultimately has left a large portion of the regulated community uninformed.

3) Wallis would appreciate clarification or a published policy regarding the Department’s position

or treatment of failed equipment tests. If it is not the intent of the Department to consider

failed equipment tests as “suspected releases” we would like to have that documented as such.

4) 10 CSR 26-2.040 (1)(C)1 states that we must test “Automatic tank gauge and other controllers:

test alarm; verify system configuration; test battery backup;”. Wallis would like to see an

2

exception to the testing of the battery backup system when information from a tank gauge is

stored remotely through a connection with an off-site monitoring system.

If you have any questions or concerns regarding these comments, please do not hesitate to contact me.

Thank you,

Donnie Greenwalt

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Verify that the link points to the correct file and location.


This message contains confidential information and is intended only for the individual(s) addressed in the message. If you are not the

named addressee, you should not disseminate, distribute, or copy this e-mail. If you are not the intended recipient, you are notified that

disclosing, distributing, or copying this e-mail is strictly prohibited.

Landreth

Law Firm

October 27, 2016 E-Mail; [email protected]

VIA U.S. AND ELECTRONIC MAIL

Director, Hazardous Waste ProgramMissouri Department of Natural ResourcesP.O. Box 176

Jefferson City, MO 65102-0176

c/o

Heather Peters

UST Compliance and TechnologyMissouri Department of Natural [email protected]

Re: Lambert- St. Louis International Airport Hydrant Fueling System/STL Fuel Comments toMDNR Proposed UST Technical Regulations Amendments - MO Register V. 41, No. 18,September 15, 2016

Dear Heather:

Following this letter, please find the questions and comments of STL Fuel Company LLC, who isthe Lessee and operator of the fuel system at Lambert- St. Louis International Airport®, regardingthe amendments to the UST Technical Regulations as published in the Missouri Register. Thesecomments have been reviewed by representatives of Lambert-St. Louis International Airport,which is owned and operated by The City of St. Louis.

Thank you very much for your cooperation and support regarding the unique fuel system issues atthe airport.

Sincerely,

Lloyd W. Landreth^^

L WL/dmk

Environnioiital and Natural Resource Law

801 East 13 Sirrei, Jeiiks, Oklahoma 740.37-4.'50"

Tel: (918) 296-0460 • Tax: (918) 296-0404 • www.i.-tndrcihiaw.coin

1

Redline Edits and Comments of STL Fuel Company LLC to 092016 Proposed UST Rules (Chronologically by Section #)

Section Proposed Edit Comment

26‐2.010(4)(A), (B) (B) Option 2. Permanent closure of the UST system no later than July 1, 2019, or alternative agreement with MDNR prior to July 1. 2019, to close the UST system.

While STL Fuel plans to have the new tank farm operational by July 2019, it is very possible that due to permitting and construction issues, the project cannot be completed by July 2019. It is also important to keep in‐mind that the new tank farm will also require a new fuel supply pipeline from the new tank farm to the airport. Because the existing tank farm cannot be decommissioned until the new farm is fully operational, the term “permanent closure” as applied to decommissioning of the existing tank farm, is unclear. As MDNR can appreciate, pulling all tanks and conducting any necessary remediation of the existing tank farm is a significant effort, and will take months to complete after the existing fuel farm is ready for abandonment. The main goal of STL Fuel is to have the new tank farm operational and the existing one defueled by July 2019. Can STL Fuel assume that if we have an ongoing dialogue with MDNR, should the existing tank farm need to be used post‐July 2019, MDNR will not initiate an enforcement action?

26.2.012(1)(A) “Abandonment” means in the context of underground pipelines the use of all reasonable means to remove petroleum from the pipe, physical separation of the pipe from any active fuel system, and the placement of

This definition is important to have with regard to AHS. If in the future AHS not currently under the UST rules are later placed under the rules, then this

2

inert gas or inert material in the abandoned pipe.

definition will allow abandonment of fuel lines which are often under several feet of concrete in active ramp or taxiway areas.

26.2.012(1)(B)(5) “Connected piping” means all underground piping including valves, elbows, joints, flanges, and flexible connectors attached to a UST system through which regulated substances flow. For the purpose of determining how much piping is connected to any individual UST system, the piping that joins two (2) UST systems should be allocated equally between them.

For a UST system, aboveground piping is not included.

26.2.012(1)(D)(6) Airport hydrant system pipelines are not amenable to being double‐walled, versus the typical double‐walled application for smaller UST systems at gas stations. STL Fuel requests clarification in the rules that double‐walled pipe applications do not include airport hydrant systems.

26.2.012(P) “Permanent Closure” means solely in the context of airport hydrant systems the permanent termination of use, and implementation of work to ensure the subject tanks, pipelines and related facilities are removed or otherwise decommissioned in an approved manner and planning for any required environmental investigation and remediation is implemented.

There is not a definition for permanent closure, or at least in the context of the July 1, 2019 date. Our comment on 26‐2.010(4) (B) above relates to this definition.

26.2.013(2)(B) By July 1, 2019 for existing systems, except where such requirements are specifically excluded or amended by this rule, or solely in the case of airport hydrant systems, as may otherwise be agreed to by the Owner and the Department.

This addition allows for STL Fuel to exceed the July 2019 date assuming we have worked with MDNR on a final decommissioning schedule in light of construction timing.

26.2.013(5) Walkthrough inspections. Unless otherwise agreed‐to with the department, Iin addition to the

The inspection frequency called out (once every 30 days if no confined space entry and

3

walkthrough inspections in 10 CSR 26‐2.036, owners and operators must inspect the following additional areas for airport hydrant fuel distribution systems at least once every thirty (30) days if confined space entry according to the Occupational Safety and Health Administration under 29 CFR Part 1910 is not required, or at least annually if confined space entry is required, and must keep documentation of these walkthrough inspections in accordance with 10 CSR 26‐2.036:

(A) Hydrant pits—visually check for any damage, remove any liquid or debris, and check for any leaks; and

(B) Hydrant piping vaults—check for any hydrant piping leaks.

annually with confined space entry) cannot be achieved without significant disruption to the schedules of tenant airlines. The Airport has 136 hydrant pits. Logistically, such an inspection frequency cannot be achieved without gate closures and other actions. The proposed regulations should include a special exception for airport hydrant systems, calling out instead a site‐specific work plan, approved by the Department.

26.2.013(6) Applicability of closure requirements to previously closed UST systems.” The requirements of 10 CSR 26‐2.060 through 2.064 cannot be achieved in all cases at an active airport without significant disruption of essential airport functions. Suggest exempting the Airport hydrant system from the referenced requirements and substituting requirements as presented in a site‐specific work plan, approved by the Department.

26.2.013 PRIVATE COST

Will cost many multiples of $500.00.

26.2.020(1)(A) To the extent STL Fuel might have to exceed the July 1, 2019 deadline for some period of time while the new tank farm is finished, we cannot meet the double‐walled requirement for some or the existing USTs at the old tank farm. Please confirm this rule will not apply to existing UST systems, but only new

4

systems. We interpret the rule as not applying to the existing tanks at STL.

26.2.030(3) (C) For Airport Hydrant System pipelines, leak testing on at least an annual basis with an industry‐standard pressure test method.

Does (4) allow for specific leak test methods for AHS piping? If not, we prefer to be explicit and offer a new subparagraph (3)(C).

26.2.034(1)(A)(3) The new rule cites 10 CSR 26‐2.078 as a requirement for investigation of soil and groundwater. 2.078 in turn cites the Missouri Risk‐Based Corrective Action Process for Petroleum Storage Tanks Guidance Document as providing requirements for investigations. The requirements of the Guidance Document could not be implemented without significant disruption of essential functions at the Airport. Suggest revising the proposed rule to allow investigation of airport hydrant systems in accordance with a site‐specific work plan, approved by the Department. Similarly, any reference to the Missouri Risk‐Based Corrective Action Process for Petroleum Storage Tanks guidance document elsewhere in the proposed rule should include a special exception for airport hydrant systems, calling out instead a site‐specific work plan, approved by the Department.

26.2.041(1)(B)(4)(A) 4. Underground bulk piping associated with airport hydrant fuel distribution systems and field‐constructed tanks must meet one (1) of the following release detection requirements:

A. The requirements in subsection (B)1.B. of this section; or

Subparagraph (4)(A) should have 1.B. added, as for AHS it is the Annual or biennial leak testing for pipelines.

5

10 CSR 26‐2.034 Reporting and Record Keeping or elsewhere where regulatory compliance inspections are cited? Regulatory Compliance Inspections Scope & Frequency

Annual regulatory compliance inspections of Airport Hydrant systems

The 2015 Federal UST rules require annual compliance inspections of airport hydrant systems by regulatory authorities. To the extent MDNR can modify those inspection requirements based upon inability to conduct inspections in areas of active airport operations STL Fuel believes such change would not be less stringent than Federal requirements. Instead STL Fuel recommends a site‐specific Regulatory Compliance Inspection Plan, approved by the Department.

1

Peters, Heather

From: Greenwalt, Donnie <[email protected]>

Sent: Thursday, October 27, 2016 3:04 PM

To: Peters, Heather; Sturgess, Steve

Cc: [email protected]; Andreasson, Rachel; Wallis, Lynn; PSTIF Office; Leone, Ron

Subject: Comments on Proposed UST Rule Changes

Importance: High

Good afternoon,

Please accept this email correspondence as Wallis Companies’ formal comment on Missouri’s proposed changes to the

Underground Storage Tank Rules.

Wallis greatly appreciates the efforts that the Missouri Department of Natural Resources has made working with

stakeholders to implement the provisions of EPA’s revised rules. Missouri has a uniquely collaborative regulatory

environment that few other states enjoy. This collaboration offers stakeholders and regulators the chance to have

constructive dialogue on the rules that govern our industry and the opportunity to ultimately produce a rule package

that satisfies the interests of both.

In general, we find the substance of the rule to be agreeable with no major issues. We do, however, offer the following:

1) Wallis Companies (Wallis) has concerns regarding the definition of “connected piping” and “underground

storage tank”. Although we do not have alternative language to propose, we would like to have some

clarification and suggest that the shear-valve be used as a line of regulatory demarcation in lieu of the terms

“above” and “below” ground.

2) Wallis is concerned with the lack of fiscal analysis provided by the Department regarding the new equipment

testing requirements. Although, the Federal EPA provided their own fiscal analysis, we do not feel as though it is

an accurate representation of the true costs of compliance. This ultimately has left a large portion of the

regulated community uninformed.

3) Wallis would appreciate clarification or a published policy regarding the Department’s position or treatment of

failed equipment tests. If it is not the intent of the Department to consider failed equipment tests as “suspected

releases” we would like to have that documented as such.

4) 10 CSR 26-2.040 (1)(C)1 states that we must test “Automatic tank gauge and other controllers: test alarm; verify

system configuration; test battery backup;”. Wallis would like to see an exception to the testing of the battery

backup system when information from a tank gauge is stored remotely through a connection with an off-site

monitoring system.

If you have any questions or concerns regarding these comments, please do not hesitate to contact me.

Thank you,

Donnie Greenwalt

2

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auto matic download of this pictu re from the In ternet.WallisCompanies


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is strictly prohibited.

1

Peters, Heather

From: Beverly Wright <[email protected]>

Sent: Tuesday, October 11, 2016 7:27 PM

To: Peters, Heather

Subject: Changes to DNR ground monitoring regulations

To Whom It May Concern: My name is Bob Wright and I am writing concerning pending changes to the Department of Natural Resources Regulations concerning ground water monitoring. These changes will affect my operations. My family has owned our station since 1953. We are a full service station in a town of just over 800 people. In 1998 we made changes to our operations to comply with the then regulations. We were assured that the changes we made would be good and we would not have to change anything again. Now, we are facing having to make another large investment to comply with changing regulations again. We installed top of the line equipment, and we have kept all equipment in perfect condition. I respectfully ask that, at the very least, you consider grandfathering in my station. I complied with the changes in 1998 in good faith that this would not have to be changed again. Thank you for your consideration of the very important issue. Bob Wright Wright's Station and Garage Alton, MIssouri

RESPONSE TO

COMMENTS

Title 10—DEPARTMENT OF NATURAL RESOURCES Division 26—Petroleum and Hazardous Substance Storage Tanks Chapter 2—Underground Storage Tanks- Technical Regulations

ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.100; 319.105; 319.107; 319.109; 319.111; 319.114; and 319.137 RSMo, the commission hereby amends a rule as follows:

10 CSR 26-2.010 is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1133). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal

assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above. RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey testified and stated in her written comments (PSTIF letter comment #6) that they oppose the requirement for tank systems to be double-walled. Ms. Eighmey also stated that there would be an increased cost, making double-walled tanks a disincentive for system replacement. Furthermore, she indicated that no data has been provided to indicate this requirement will reduce the frequency or severity of leaks. And she also stated that this requirement would be a “de facto ban on steel tanks” for a number of reasons. Her comments also indicate that “we know fiberglass tanks [sic] are being deformed…by devices on vent stacks…” Additional, supporting comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above.

RESPONSE: In 2013, the department worked closely with the Missouri Petroleum Marketers and Convenience Store Association (MPCA) to establish a plan to comply with EPA’s requirements for secondary containment. At that time, the MPCA supported the plan to require double-walled systems, including double-walled tanks, as was documented in e-mails from the Executive Director on January 23, 2013. In regards to the comment about increased cost for double-walled tanks, the department proposed rule does not require implementation of this requirement until July 1, 2017. Failure to promulgate these rules will almost certainly lead to revocation of our SPA, which would mean the federal rules would be effective as written, with an implementation date for this specific requirement of April 13, 2016. As such, failure to promulgate this rule could potentially lead to more sites becoming subject to the requirement, sites with tanks already installed. This requirement will become effective in Missouri- either under this regulation or EPA’s. In response to Ms. Eighmey’s comments about a double-walled tank requirement being a “de facto ban on steel tanks,” it is key to note that, even though this requirement is not yet effective in Missouri, more double-walled steel tanks are being installed here than single-walled tanks (over twice as many double-walled steel tanks were installed thus far in 2016). It is also relevant to note that only about 11% of tanks installed in the past 4 years were steel tanks, which demonstrates that, even with the single-walled option in place, steel tanks are not the preferred tank system. At this time, I have not been provided with any data that demonstrates or proves that fiberglass tanks are being deformed by vapor recovery equipment. We are aware that a vacuum is being created on all tanks. We have proof that the vacuum affects product levels, in both steel and fiberglass tanks. We understand that fiberglass is a plastic that “moves,” even with simple temperature and pressure changes in and around the tank. We do not “know” that the tanks are being “deformed” or damaged by vapor recovery equipment. And as this regulation is not a “de facto” ban on steel tanks, this concern does not appear to be directly impacted by this regulation. The comment also noted that no proof has been provided that this requirement will reduce the number or severity of leaks. As this is a federal mandate, and EPA has already promulgated this rule without contestation, this requirement will be effective with or without this proposed rule. But in response to this specific comment, these double-walled tanks are designed so that a “leak” from a primary tank is contained by the secondary, meaning a release to the environment is prevented. In 2014, an owner/operator found liquid between the two walls of their double-walled tank. Upon removal, a hole was found in the primary wall. The product, though, was contained by the secondary wall, meaning that no release of fuel to the environment was found in association with a corrosion hole in the primary wall. The specific example I use is not an isolated event; each year, the department addresses leaks from portions of the UST’s primary system that do not result in releases because the leak was contained in the secondary system. Ironically, the department, EPA, and PSTIF regularly track and report on “releases” from UST systems. We do not report on ‘near releases,’ leaks or failures that could have been releases to the environment were it not for the second wall. Furthermore, perhaps there is even support in the data that proves an increased number of double-walled tanks are in use, but the number of releases from tanks has decreased substantially over the years.

COMMENT #3: Ms. Eighmey provided written comments, suggesting language changes and rearrangement of the proposed rule. RESPONSE AND EXPLANATION OF CHANGE: In the first of these comments, Ms. Eighmey suggests that the title of Section (4) is confusing and that some of the language in this rule is unnecessary. This language, including the list of requirements for previously deferred tanks, is a mirror of the format and requirements of the EPA language. Since this is not a substantive change being suggested, but a preferred reading language change, and as the current language reflects EPA’s format, no changes are being made in response to these comments, except as noted in the next paragraph. One of the comments indicated that a compliance date was missing. That missing date was an accidental omission. The compliance dates are detailed, by rule, in 10 CSR 26-2.013. As such, to ensure the correct compliance dates are reflected in this rule, the language for existing systems will be amended to include the reference to compliance dates. The department has made this change in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #4: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth commented that a plan is in place to permanently close the UST systems at this airport, but the closure might not be complete by July 1, 2019. He requested alternative language to allow extra time. RESPONSE AND EXPLANATION OF CHANGE: The language Mr. Landreth provided indicated that the system must be closed by July 1, 2019, or a plan must be in place for closure. This option for “a plan” is unacceptable because it does not require follow-through on that plan or completion of the closure, under the rule language. That being said, the department is willing to build into the rule an additional six (6) months to grant extra time, making the compliance date for closure December 31, 2016. In addition, please note that the department could potentially use “enforcement” discretion when it comes to meeting this specific deadline. If the plan is actually being enacted, work is being conducted, and it is evident that closure is moving forward, but will simply miss this specific target date by a relatively short time, the department can agree to not take any enforcement action, but continue to work with the facility to ensure continued steps towards compliance. This site has many factors that would facilitate that decision, including the size of the project, the cost of the project, and that this is a new requirement. As this project begins and continues, please keep the department updated on the status of your progress. That being said, the department has made change in the text of the Order of Rulemaking to include the extension for compliance. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #5: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth commented that a definition of “permanent closure” is not found in 10 CSR 26-2.012 (the definitions rule).

RESPONSE AND EXPLANATION OF CHANGE: Permanent closure and what is required at permanent closure are covered in 10 CSR 26-2.060 through 10 CSR 26-2.064. As such, a reference to these closure rules will be incorporated into 10 CSR 26-2.010 to enhance clarity. The department has made change in the text of the Order of Rulemaking to include the extension for compliance. The revised text is reprinted below as it will be published in the Code of State Regulations.

(4) Previously deferred UST systems. Previously deferred airport hydrant fuel distribution systems, tank systems, and field constructed tanks systems must meet one (1) of the following options for compliance:

(A) Option 1. Owners and operators must document that the previously deferred UST is appropriate for continued use by providing proof of compliance with 10 CSR 26-2.020 through 10 CSR 26-2.048, in accordance with the timeframes allowed in 10 CSR 26-2.013; or

(B) Option 2. Permanent closure of the UST system no later than [July 1, 2019]December 31, 2019, in accordance with 10 CSR 26-2.060 through 10 CSR 26-2.064. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.

REVISED FISCAL NOTE PRIVATE COST

I. RULE NUMBER Rule Number and Name

10 CSR 26-2.010 Applicability

Type of Rulemaking

Amendment

II. SUMMARY OF FISCAL IMPACT Classification by types of the business entities which would likely be affected:

Estimate of the number of entities by class which would likely be affected by the adoption of the proposed rule:

Estimate in the aggregate as to the cost of compliance with the rule by the affected entities:

• Convenience Stores/Gas Stations

• Garages/ Service Centers

• Government facilities: fuel dispensing, generator fuel storage

• Fleet/shipping/trucking facilities

• Hospitals, Nursing or Health Care facilities

• Communication facilities and structures (e.g. cellular phone companies)

• Banks • Food storage facilities • Data storage facilities • Other owners and

operators of underground storage tank systems

There are approximately 3,420 underground storage

tank facilities

We estimate that 92% of those facilities are owned

by private entities

We estimate that 8% are owned by public entities:

federal, state or local governments

$715 annually per facility for compliance with all of

the new, federal regulations

Combined annual rule total $715 per facility x 3,420 facilities x

92% privately owned = $2,249,676 annually

III. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. IV. ASSUMPTIONS

1. As of October 31, 2016, the number of UST facilities with at least one tank not yet permanently closed is 3,420 facilities. The department assumes that this number will continue to decrease slowly, as it has done for many years. For the “annual” cost calculation, though, we assumed a steady number of facilities, which should be a conservative estimate.

2. The number of facilities provided includes sites that have all tanks out-of-use. As of October 31, 2016, 250 facilities out of the 3,420 facilities referenced have all of the tanks out-of-use. Most of these new requirements apply only to tanks that are in-use. Theoretically, any of the out-of-use facilities could re-open. Many do not, but for the

purposes of these calculations, we included all of these facilities. As such, again, this number of facilities is a conservative number.

3. The number of publically owned and privately owned facilities was reviewed, based on

data available November 2016. Publically owned facilities include sites owned by the federal government, state government, and county or city governments. The calculated percentage of sites owned by government owners was approximately 8%. As this is simply a percentage, and we are aware of no reason that the number of these owners should dramatically change, we assumed a constant ownership of facilities to be approximately 92% private entities.

4. EPA is required to provide a fiscal assessment for any rule amendments or additions, at least a stringent as the state requirement for fiscal assessments. This fiscal note assumes EPA’s fiscal assessment and cost estimates are reasonable.

5. EPA also calculated potential savings in their final assessment. These savings, for both public and private entities, include the reduced number of leaks, earlier detection resulting in smaller leaks, which should result in lower release investigation and response activity-related costs. The EPA included other potential savings in their assessment as well. For the purposes of this fiscal note, those savings are only mentioned here, but are not included in the calculated cost above.

REVISED FISCAL NOTE PUBLIC COST


10 CSR 26-2.010 Applicability

Type of Rulemaking

Amendment





• Garage/Service Centers • Government facilities • Fleet/shipping/trucking

facilities • Hospitals, Nursing or

Health Care facilities • Communication

facilities and structures • Banks • Food storage facilities • Data storage facilities • Other owners/operators

of underground storage tank systems


tank facilities

We estimate that 92% of those facilities are owned by

private entities





___

Combined annual rule total $715 per facility x

3,420 facilities x 8% publically owned =

$195,624 annually

• Missouri Department of Natural Resources

The Department of Natural Resources staff review

compliance documents for these UST facilities

Estimated $1,621.44 annually additional costs associated with the new

federal regulations • Missouri Petroleum

Storage Tank Insurance Fund (PSTIF)

PSTIF also reviews compliance documents for

these UST facilities

Estimated $18,504.90 annually

+ $102,000 one-time for costs associated with implementing the new

federal regulations Total annual public cost: $215,750.34/year

+ one-time $102,000 added cost

III. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. The additional costs to the state for implementation were calculated based upon the Missouri Department of Natural Resource’s expected additional costs. The Missouri Petroleum Storage Tank Insurance Fund (PSTIF) was asked to provide their expected costs as well. For the department’s costs, the department assumed that the new federal requirements would add approximately three (3) extra hours per week of documentation review. The new equipment test and inspections should require only simple documentation. Some of the tests or inspections are only required every three (3) years, but some are required annually. The department reviews this documentation in conjunction with the triennial UST facility inspections. As the department already requests the facility’s compliance documentation, these test reports will simply be extra documentation to review as part of the current records review process. With this part of an existing process, and with the reports for these new requirements expected to be relatively simple

and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process. IV. ASSUMPTIONS


2. The number of facilities provided includes sites that have all tanks out-of-use. As of October 31, 2016, 250 facilities out of the 3,420 facilities referenced have all of the tanks out-of-use. Most of these new requirements apply only to tanks that are in-use. Theoretically, any of the out-of-use facilities could re-open. Many do not, but for the purposes of these calculations, we included all of these facilities. As such, again, this number of facilities is a conservative number.





6. The state agency implementation costs used the assumption that the Environmental Specialist IV costs would be the highest, and therefore the most conservative number for the fiscal note. As such, this fiscal note does not attempt to include any routine cost of living raises, as the annual personnel cost is using the highest salary already; the cost of living calculation increase is offset by the reduction the department could have calculated using a lower-salaried position. These costs also assume that any facility providing the newly required documentation would have already regularly been providing compliance documentation upon request.


ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105 and 319.137 RSMo, the commission hereby amends a rule as follows:

10 CSR 26-2.011 is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1134). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters, noted above.

RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment were challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey provided written comments, suggesting language changes and/or deletion of the proposed amended rule. Ms. Eighmey’s comment indicates that, as previously deferred tanks are not subject to this rule, and as the requirements for the previously deferred USTs are outlined in other rules, this rule is no longer needed. RESPONSE: Ms. Eighmey’s comments identify a problem with the language in the title of this rule. Upon EPA’s changes to the list of USTs previously deferred, they amended their rules to include requirements for previously deferred tanks and a new category of UST systems listed under “Partial Exclusions” in 10 CSR 26-2.010. In following EPA’s language and rule changes, the title of this rule should have been amended, just as EPA’s corresponding rule title was, to indicate that this rule applies to “partially excluded” UST systems, previously known as

deferred. Changing the language should alleviate the confusion the existing title creates. As such, to reflect the changes in EPA’s rules and to avoid confusion, the title of this rule will be amended as noted below.

RESPONSE AND EXPLANATION OF CHANGE: In response to this comment, the department has made the requested changes in the title of the rule in the Order of Rulemaking. The revised title is reprinted below as it will be published in the Code of State Regulations. 10 CSR 26-2.011 Installation requirements for partially excluded UST systems REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.011 Installation requirements for partially excluded UST systems

Type of Rulemaking

Amendment













tank facilities


by private entities









2. The number of facilities provided includes sites that have all tanks out-of-use. As of October 31, 2016, 250 facilities out of the 3,420 facilities referenced have all of the tanks out-of-use. Most of these new requirements apply only to tanks that are in-use.

Theoretically, any of the out-of-use facilities could re-open. Many do not, but for the purposes of these calculations, we included all of these facilities. As such, again, this number of facilities is a conservative number.







10 CSR 26-2.011 Installation requirements for partially excluded UST systems

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually













III. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. The additional costs to the state for implementation were calculated based upon the Missouri Department of Natural Resource’s expected additional costs. The Missouri Petroleum Storage Tank Insurance Fund (PSTIF) was asked to provide their expected costs as well. For the department’s costs, the department assumed that the new federal requirements would add approximately three (3) extra hours per week of documentation review. The new equipment test and inspections should require only simple documentation. Some of the tests or inspections are only required every three (3) years, but some are required annually. The department reviews this documentation in conjunction with the triennial UST facility inspections. As the department already requests the facility’s compliance documentation, these test reports will simply be extra documentation to review as part of the current records review process. With this part of an

existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process. IV. ASSUMPTIONS

1. As of October 31, 2016, the number of UST facilities with at least one tank not yet permanently closed is 3,420 facilities. The department assumes that this number will continue to decrease slowly, as it has done for many years. For the “annual” cost

calculation, though, we assumed a steady number of facilities, which should be a conservative estimate.








ORDER OF RULEMAKING



assessment. Similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey suggested changes to definitions related to the use of “underground” with piping in her written comments (PSTIF comment #1 and 2.012 Definitions). A similar comment was submitted by Mr. Greenwalt and Mr. Landreth, commenters noted above. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: The definition of “underground storage tank” or UST has not changed since 1989, which is when the Missouri Statutory definition of

underground storage tank was written in 319.100(16). While many other EPA definitions were included in the Missouri rule by reference, this specific definition was not. Instead the rule referenced the Missouri statute. The original (circa 1986) federal definition of underground storage tank, as provided in 40 CFR 280.12, “means any one or combination of tanks (including underground pipes connected thereto) that is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is 10% or more beneath the surface of the ground.” (Emphasis added) The original (established 1989) Missouri statutory definition of underground storage tank is “any one or combination of tanks, including pipes connected thereto, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is 10% or more beneath the surface of the ground.” There is one word different between the two definitions- the word in question discussed in Ms. Eighmey’s comments. As statute supersedes rule, and as the statutory definition was incorporated by reference into the state rule, it is clear that the definition included in this draft is, in fact, the same definition provided in 319.100 of the Revised Statutes of Missouri. In this respect we agree with Ms. Eighmey’s comments: the definition has not changed in 27 years. The definition has remained the same since written into statute in 1989. Since the definition is not actually changing, Missouri’s implementation is not changing. To clarify this, though, please note the following:

1) Both the department and the PSTIF have actually regulated aboveground piping associated with UST systems. For example, if an underground tank has pressurized piping that is aboveground, so long as 10% or more of the entire system is belowground, the department requires ‘gross monitoring’ of the line. Both DNR and PSTIF regularly exempt these types of piping from being equipped with line leak detector, but specifically provide a waiver indicating that aboveground pressurized piping that is easily visible while operating could meet this requirement with simple visual detection (meaning that a person in the area would immediately notice a 3.0 gallon per hour leak, as required by the piping release detection regulation).

2) DNR and the Missouri Department of Agriculture have an informal understanding that, as the Missouri Department of Agriculture inspects dispenser areas two times and as the fire code, which they enforce, provides extensive and thorough requirements in the dispenser area, DNR does not typically conduct extensive inspections in the dispenser cabinet, above the shear valve. That being said, though, the department regularly responds to releases from equipment above the shear valve in the dispenser area; PSTIF has claims for releases from equipment in the dispenser area. In Federal Fiscal Year 2016 alone, the department reported five new releases from the dispenser areas. The PSTIF has corresponding claims associated with these five releases.

As repeatedly stated herein, the department does not believe there to be any change in the definition for regulated underground storage tanks. It was previously found only in the statute, but incorporated by reference into the regulation. At this time, the proposed change is simply including the actual statutory language in the rule, so that the definitions may be found in one location. As such, since we are not “changing” the definition, we also disagree that this proposed rule will make significant changes to how the department implements the rule, nor is a fiscal assessment required, either in the rule or the regulatory impact report. This is not a change in definition, merely a change in location for clarity. Ms. Eighmey did note concerns with the definition of dispenser. We can understand that confusion in the language. To ensure that the new definition of dispenser is clear, though, the department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #3: Ms. Eighmey suggested changes to definitions related to the use of “underground” with piping in her written comments (PSTIF comments 2.012 Definitions). These comments are associated with Comment #2 above, and include the definition or ancillary equipment, connected piping, petroleum storage tank and tank system. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Please see the response to Comment #2 above. For the reasons noted above, the definition of underground storage tank is not changing. As such, the comments associated with this change will not result in changes to the other, related definitions. COMMENT #4: Ms. Eighmey suggested deleting “belowground release,” “underground release,” “overfill release,” and “underground release” as they are confusing and not used. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Both of these definitions are EPA definitions. Considering the confusion over the definition of “underground storage tank” as noted in Comment #2 above, maintaining these terms, if not directly used in regulations, does appear to be helpful in general conversation and in the application of the suspected release and release response regulations. The term “release” is regularly referred to in the regulations. The different types of “releases” being defined in this rule would appear to be beneficial. Furthermore, as they are EPA definitions which have always been incorporated by reference, this is not a change. Changing the federal language could potentially require new EPA review. As such, no change is proposed in response to this comment. COMMENT #5: In Ms. Eighmey’s written comments, she opposed the definition of corrosion expert. Specifically, she indicated that a corrosion expert should not require the specialized cathodic protection system training and certification that a simple tester would. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above.

RESPONSE: While this definition seems independent of the definition of cathodic protection tester, a definition supported by Ms. Eighmey that does require appropriate training and certification by the industry experts on UST cathodic protection systems, it is actually not as independent a definition as it appears. The current use of corrosion experts is to provide re-certification of a previously upgraded, cathodically protected tank. It is important to note that these tanks had to meet the upgrade standard no later than 1998. New, cathodically protected tanks have not been installed in many years, but, per the manufacturer, require the same training and certifications to install. So the use of a corrosion expert is limited, and, as it applies to today’s UST systems, is used where the corrosion expert is also in a position that s/he must test the system upon completion. If an existing system is repaired or a new system is installed, a passing test is required. Per regulations, and the current definition of tester, that tester must meet certain certification requirements. If these definitions are not consistent, and consistent with the rules under which they are currently, actually applied, then someone without the required training could advertise themselves as experts and then not actually be able to complete the final step of any assessment- the test itself showing the installation or repair is valid. It seems counterintuitive, and was not the intention of the initial certification and training requirement, to confuse or otherwise mislead an owner or operator as he is selecting his corrosion expert. In short, under the currently proposed regulations, the department envisions no situation under which a corrosion expert must not also be a tester, required to meet the training and certification requirements Ms. Eighmey supported in her comments. As such, no change is proposed in response to this comment. COMMENT #6: Ms. Eighmey suggested deleting the “leak-tight” term from the definition of a containment sump. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE: First, this is an EPA definition. Secondly, Ms. Eighmey indicated that the rules state how these containment sumps must be tested and maintained to be “leak-tight.” She further stated, though, that it is an operating condition, not a definition. As such, the language should be changed to “designed to be leak-tight.” A containment sump is a system or basin that is designed to catch a leak. If it is not “leak-tight,” it isn’t serving its function or meeting the requirements of a “containment sump.” In other words, if it isn’t containing the leak, it isn’t a containment sump. It’s not simply an operating condition- it is part of the definition. Furthermore, the regulations require containment sumps, which by their nature must contain a leak, in certain circumstances as defined in the rules. We feel this definition is appropriate and matches the new federal definition in this area. As such, no change is proposed in response to this comment. COMMENT #7: Ms. Eighmey suggested incorporating a definition for double-walled tank. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: This comment points out an omission in the rules, specifically a term key in the new regulations. In conjunction with tank manufacturers and tank construction standards, a definition of double-walled tank was added.

The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #8: Ms. Eighmey suggested deleting “the field or” from the definition of field-constructed tank. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE: While we understand the root of this comment, and agree that EPA’s use of the term “field” in the definition of “field-constructed tank” may not be the best definition, removal of the term field could have potential ramifications. A non-field constructed tank is typically a tank that has a manufacturer, a manufacturing process, a factory, and/or related industry standards. A field-constructed tank is or was a tank that, often, did not meet such rigorous requirements. They were typically concrete-poured or steel plates sealed and erected to create a large tank. The difference is the construction method, not strictly the location. So if the concrete was poured into forms on the adjacent property and then fitted into the ground at its final location, it would still be considered “field-constructed,” even though it was actually completely made at the location where it will be used to store a regulated substance. Removing these words, then, could limit the intended application of the definition. As such, no change is proposed in response to this comment. COMMENT #9: Ms. Eighmey indicated that it was unclear whether a UST containing a mixture or petroleum and a hazardous substance is a “petroleum storage tank” or a hazardous substance UST system. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE: While we also understand this comment, this ambiguity has been in place since the statutory definition was created. The flexibility, though, allows the department to treat a gasoline tank that contains an additive that may be a hazardous substance as a gasoline tank. Alternatively, there may be hazardous substance tanks that may contain a small amount of diesel, gasoline or other petroleum product, but are used and handled as hazardous substances. The determination typically considers the amount of each substance and the product’s final use. As such, no change is proposed in response to this comment. COMMENT #10: Ms. Eighmey suggested deleting some terms from the definition that she indicated are not used in the rule, specifically “liquid trap,” “noncommercial purposes,” and “underground area.” A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE: These terms are EPA definitions. They are not currently used in the rule, but they are currently used in the statutory definitions found in 319.100 RSMo. These definitions provide clarity, but no changes, to the statutory definitions. As such, no change is proposed in response to this comment. COMMENT #11: Ms. Eighmey commented that the definition of “out-of-service” and “out-of-use” were in bold in the Missouri Register but did not note any changes to the definition. A

comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: This paragraph is in bold simply because it was moved- deleted from one area and moved to the next, because the definitions are numbered but must remain in alphabetical order. This was formally definition 2 under “O’ but is now definition 4. Other than numbering, no changes were made to the content or language in the definition. As such, no change is proposed in response to this comment. COMMENT #12: Ms. Eighmey suggested alternative language on the definition of “owner.” A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: As the language Ms. Eighmey suggests does not change the meaning of the definition and is actually more consistent with the statutory definition, the suggested language will be used. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #13: Ms. Eighmey suggested changes to language in the definition of “petroleum storage tank.” A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The definition of “petroleum storage tank” was originally changed at the suggestion of Ms. Eighmey, specifically to tie the definition only to the rules in this chapter. At the time the suggestion was made, Ms. Eighmey was concerned that using the full statutory definition could potentially tie aboveground storage tanks into this chapter, which was not the intent. Based on the suggestions within Ms. Eighmey’s current, written comments, the department will amend the language slightly. Please note, we are not making the changes exactly as suggested, because those suggestions actually change the definitions and potentially bring hazardous substance tanks into regulations that had not previously applied. The department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #14: Ms. Eighmey commented on the definition and need for the term replaced, specifically as it pertains to the tank portion of the system. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: While we agree and we, too, consider a new tank simply a new tank, regardless of whether they had been one previously located in the same pit, site or location, EPA clearly defined this term to avoid ambiguity and a potential loophole to occur. So while we all agree on Missouri’s intent, and while we all currently agree on what is a “new” tank, we will leave the

EPA language in as drafted, to ensure there are no questions, loopholes or ambiguity for future readers. As such, no change is proposed in response to this comment. COMMENT #15: Ms. Eighmey suggested changes to language in the definition of “upgrade.” The suggestion specifically included the word “or” in the list of equipment included in “upgrade.” A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: Ms. Eighmey’s comment is appreciated as the word “or” was not intentionally omitted. The department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #16: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth provided a comment suggesting a definition of “abandonment” be added. RESPONSE: Mr. Landreth’s definition of abandonment really appears to be a “waiver” from filling the piping portion of the UST system with an inert solid material to be considered permanently closed. He adds this term and appears to use it to ensure that a piping run, permanently closed in place under 10 CSR 26-2.060 through 10 CSR 26-2.064, is “closed” and does not require further closure activities if it is not filled with an inert solid material, but is left in place. The Missouri Risk-Based Corrective Action Process for Petroleum Storage Tanks Guidance Document provides Missouri’s written interpretation that a piping can be considered permanently closed if the ends of the piping are “sealed with cement or concrete grout,” rendering them unusable. If the piping is closed in this manner after being emptied of all fuel, and as long as all applicable closure standards and subsequent investigations and required remediation activities occur, this piping would be considered permanently closed. As such, this definition would be unnecessary. And as the term is abandoned is used to mean something completely unrelated in the UST community, this definition would appear to be confusing. As such, no change is proposed in response to this comment. COMMENT #17: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth provided a comment concerning the definition of “double-walled piping” indicating that airport hydrant system pipelines are not amenable to being double-walled. RESPONSE: Mr. Landreth’s comment pertains to a definition. This definition does not require action and does not require existing airport hydrant systems to change piping. As such, no change is proposed in response to this comment. COMMENT #18: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth commented that a definition of “permanent closure” is not found in 10 CSR 26-2.012 (the definitions rule).

RESPONSE AND EXPLANATION OF CHANGE: Permanent closure and what is required at permanent closure are covered in 10 CSR 26-2.060 through 10 CSR 26-2.064. As such, a reference to these closure rules will be incorporated into 10 CSR 26-2.010 to enhance clarity. The department has made change in the text of the Order of Rulemaking for 10 CSR 26-2.010 in response to this comment. No change is made in the text of 10 CSR 26-2.012(1)(D) in response to this comment.

(1)Many definitions relevant to this rule are set forth in the underground storage tank (UST) law in section 319.100, RSMo.

(D) Definitions beginning with the letter D. 4. “Dispenser” means equipment located above the surface of the ground that dispenses

regulated substances from the UST system. 5. “Dispenser system” means the dispenser and the equipment necessary to connect the dispenser to the underground portions of the piping system. 7. “Double-walled tank” means a tank within a tank, where the inner tank is contained within the outer tank to a minimum of 95% containment, and the outer wall and inner walls have an interstitial space capable of being monitored for a leak from either tank.

(O) Definitions beginning with the letter O. 6. “Owner” means any person who owned an underground storage tank immediately before the discontinuation of its use if not in used on August 28, 1989, or any person who owns and underground storage tank in use on August 28, 1989, excluding persons who hold indicia of ownership primarily to protect a security interest or lienholders exempted under section 319.100(9) RSMo.

P) Definitions beginning with the letter P. 3. “Petroleum storage tank,” as it pertains to the authority in this chapter, means an underground storage tank system used to contain an accumulation of petroleum.

U) Definitions beginning with the letter U. 5. “Upgrade,” means the addition or retrofit of some systems, such as cathodic protection, lining, or spill and overfill controls to improve the ability of an underground storage tank system to prevent the release of regulated substance. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-

owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.012 Definitions

Type of Rulemaking

Amendment













tank facilities


by private entities

















10 CSR 26-2.012 Definitions

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.100; 319.103; 319.105; 319.107; 319.109; 319.111; 319.114; 319.117; 319.120; 319.123; and 319.137 RSMo, the commission hereby adopts a rule as follows:

10 CSR 26-2.013 is adopted. A notice of proposed rulemaking containing the text of the proposed rule was published in the Missouri Register on September 15, 2016 (41 MoReg 1138). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed new rule becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal

assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above. RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #3) concerns about the new testing requirements. Specifically, she indicated a lack of flexibility in the rules pertaining to the new requirements. She also requested postponement of the rules until alternatives can be found. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE: The “new” requirements noted in this comment are the new EPA rules. In her comments, Ms. Eighmey indicated that “states are not required to implement EPA’s rules

verbatim, and EPA specifically allows more flexibility in the UST program than in its other regulatory programs.” Ms. Eighmey is correct that, in some areas, the state is allowed to be more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #5) concerns about the department’s response to equipment that fails the new testing requirements. She indicated that “no information has been provided indicating what the department’s response will be when equipment that has never had to be tested before fails a test”. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above.

RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on a broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey testified and stated in her written comments (PSTIF letter comment #6) that they oppose the requirement for tank systems to be double-walled. Ms. Eighmey also stated that there would be an increased cost, making double-walled tanks a disincentive for system replacement. Furthermore, she indicated that no data has been provided to indicate this requirement will reduce the frequency or severity of leaks. And she also stated that this requirement would be a “de facto ban on steel tanks” for a number of reasons. Her comments also indicate that “we know fiberglass tanks [sic] are being deformed…by devices on vent stacks…” Additional, supporting comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE: In 2013, the department worked closely with the Missouri Petroleum Marketers and Convenience Store Association (MPCA) to establish a plan to comply with EPA’s requirements for secondary containment. At that time, the MPCA supported the plan to require double-walled systems, including double-walled tanks, as was documented in e-mails from the Executive Director on January 23, 2013. In regards to the comment about increased cost for double-walled tanks, the department proposed rule does not require implementation of this requirement until July 1, 2017. Failure to promulgate these rules will almost certainly lead to revocation of our SPA, which would mean the federal rules would be effective as written, with an implementation date for this specific requirement of April 13, 2016. As such, failure to promulgate this rule could potentially lead to

more sites becoming subject to the requirement, sites with tanks already installed. This requirement will become effective in Missouri- either under this regulation or EPA’s. In response to Ms. Eighmey’s comments about a double-walled tank requirement being a “de facto ban on steel tanks,” it is key to note that, even though this requirement is not yet effective in Missouri, more double-walled steel tanks are being installed here than single-walled tanks (over twice as many double-walled steel tanks were installed thus far in 2016). It is also relevant to note that only about 11% of tanks installed in the past 4 years were steel tanks, which demonstrates that, even with the single-walled option in place, steel tanks are not the preferred tank system. At this time, I have not been provided with any data that demonstrates or proves that fiberglass tanks are being deformed by vapor recovery equipment. We are aware that a vacuum is being created on all tanks. We have proof that the vacuum affects product levels, in both steel and fiberglass tanks. We understand that fiberglass is a plastic that “moves,” even with simple temperature and pressure changes in and around the tank. We do not “know” that the tanks are being “deformed” or damaged by vapor recovery equipment. And as this regulation is not a “de facto” ban on steel tanks, this concern does not appear to be directly impacted by this regulation. The comment also noted that no proof has been provided that this requirement will reduce the number or severity of leaks. As this is a federal mandate, and EPA has already promulgated this rule without contestation, this requirement will be effective with or without this proposed rule. But in response to this specific comment, these double-walled tanks are designed so that a “leak” from a primary tank is contained by the secondary, meaning a release to the environment is prevented. In 2014, an owner/operator found liquid between the two walls of their double-walled tank. Upon removal, a hole was found in the primary wall. The product, though, was contained by the secondary wall, meaning that no release of fuel to the environment was found in association with a corrosion hole in the primary wall. The specific example I use is not an isolated event; each year, the department addresses leaks from portions of the UST’s primary system that do not result in releases because the leak was contained in the secondary system. Ironically, the department, EPA, and PSTIF regularly track and report on “releases” from UST systems. We do not report on ‘near releases,’ leaks or failures that could have been releases to the environment were it not for the second wall. Furthermore, perhaps there is even support in the data that proves an increased number of double-walled tanks are in use, but the number of releases from tanks has decreased substantially over the years. COMMENT #5: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth commented a special exclusion should be created in 10 CSR 26-2.013(2)(B) for airport hydrant fuel distribution systems. RESPONSE AND EXPLANATION OF CHANGE: The rule that Mr. Landreth provided comments on is a rule specifically designed for airport hydrant fuel distribution systems and field-constructed tank systems. This language, which is from the new federal UST rules, was specifically designed for and applies to airport hydrant fuel distribution systems. The department cannot create language less stringent than the federal requirements in this area. That being said,

the department is willing to build into 10 CSR 26-2.010 an additional six (6) months to grant extra time, making the compliance date for closure December 31, 2016. In addition, please note that the department could potentially use “enforcement” discretion when it comes to meeting this specific deadline. If the plan is actually being enacted, work is being conducted, and it is evident that closure is moving forward, but will simply miss this specific target date by a relatively short time, the department can agree to not take any enforcement action, but continue to work with the facility to ensure continued steps towards compliance. This site has many factors that would facilitate that decision, including the size of the project, the cost of the project, and that this is a new requirement. As this project begins and continues, please keep the department updated on the status of your progress. That being said, the department has made change in the text of the Order of Rulemaking for 10 CSR 26-2.010 and no change is proposed in this rule in response to this comment. COMMENT #6: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth commented a special exclusion should be created in 10 CSR 26-2.013(5) for airport hydrant fuel distribution systems. RESPONSE: The rule that Mr. Landreth provided comments on is a rule specifically designed for airport hydrant fuel distribution systems and field-constructed tank systems. This language, which is from the new federal UST rules, specifically mentions airport hydrant pits and airport hydrant piping vaults. As such, it is clear that these federal requirements were designed for and apply to airport hydrant fuel distribution systems. The department cannot create language less stringent than the federal requirements in this area. As such, no change is proposed in response to this comment. COMMENT #7: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth commented on 10 CSR 26-2.013 (applicability of closure requirements to previously closed tanks) that the closure requirements in 10 CSR 26-2.060 through 10 CSR 26-2.064 cannot be met at an airport without significant disruption. RESPONSE: The department is unclear about which specific part of the closure rules Mr. Landreth is including in his statement. He provided another comment on another rule that indicated they would like the option to not completely fill in place all piping that is being permanently closed. His comment seemed to be requesting confirmation that a piping run, permanently closed in place under 10 CSR 26-2.060 through 10 CSR 26-2.064, is “closed” and does not require further closure activities if it is not filled with an inert solid material, but is left in place. The Missouri Risk-Based Corrective Action Process for Petroleum Storage Tanks Guidance Document provides Missouri’s written interpretation that a piping can be considered permanently closed if the ends of the piping are “sealed with cement or concrete grout,” rendering them unusable. If the piping is closed in this manner after being emptied of all fuel and cleaned, and as long as all applicable closure standards and subsequent investigations and required remediation activities occur, this piping would be considered permanently closed. If this comment on applicability of closure requirements to previously closed tanks is in reference

to this issue, the current practices and documents in place in Missouri appear to address this issue. As such, no change is proposed in response to this comment.

(4) Previously deferred UST systems. Previously deferred airport hydrant fuel distribution systems, tank systems, and field constructed tanks systems must meet one (1) of the following options for compliance:

(A) Option 1. Owners and operators must document that the previously deferred UST is appropriate for continued use by providing proof of compliance with 10 CSR 26-2.020 through 10 CSR 26-2.048, in accordance with the timeframes allowed in 10 CSR 26-2.013; or

(B) Option 2. Permanent closure of the UST system no later than [July 1, 2019]December 31, 2019, in accordance with 10 CSR 26-2.060 through 10 CSR 26-2.064. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.013 UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems

Type of Rulemaking

New Rule













tank facilities


by private entities







II. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. III. ASSUMPTIONS










10 CSR 26-2.013 UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems

Type of Rulemaking New Rule











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105 RSMo, the commission hereby amends a rule as follows:

10 CSR 26-2.019 is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1139). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above.

RESPONSE AND EXPLANATION OF CHANGE: The definition of “underground storage tank” or UST has not changed since 1989, which is when the Missouri Statutory definition of underground storage tank was written in 319.100(16). While many other EPA definitions were included in the Missouri rule by reference, this specific definition was not. Instead the rule referenced the Missouri statute. The original (circa 1986) federal definition of underground storage tank, as provided in 40 CFR 280.12, “means any one or combination of tanks (including underground pipes connected thereto) that is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is 10% or more beneath the surface of the ground.” (Emphasis added) The original (established 1989) Missouri statutory definition of underground storage tank is “any one or combination of tanks, including pipes connected thereto, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is 10% or more beneath the surface of the ground.” There is one word different between the two definitions- the word in question discussed in Ms. Eighmey’s comments. As statute supersedes rule, and as the statutory definition was incorporated by reference into the state rule, it is clear that the definition included in this draft is, in fact, the same definition provided in 319.100 of the Revised Statutes of Missouri. In this respect we agree with Ms. Eighmey’s comments: the definition has not changed in 27 years. The definition has remained the same since written into statute in 1989. Since the definition is not actually changing, Missouri’s implementation is not changing. To clarify this, though, please note the following:


2) DNR and the Missouri Department of Agriculture have an informal understanding that, as the Missouri Department of Agriculture inspects dispenser areas two times and as the fire code, which they enforce, provides extensive and thorough requirements in the dispenser area, DNR does not typically conduct extensive inspections in the dispenser cabinet, above the shear valve. That being said, though, the department regularly responds to releases from equipment above the shear valve in the dispenser area; PSTIF has claims for releases from equipment in the dispenser area. In Federal Fiscal Year 2016 alone, the department reported five new releases from the dispenser areas. The PSTIF has corresponding claims associated with these five releases.

As repeatedly stated herein, the department does not believe there to be any change in the definition for regulated underground storage tanks. It was previously found only in the statute, but incorporated by reference into the regulation. At this time, the proposed change is simply including the actual statutory language in the rule, so that the definitions may be found in one location. As such, since we are not “changing” the definition, we also disagree that this proposed rule will make significant changes to how the department implements the rule, nor is a fiscal assessment required, either in the rule or the regulatory impact report. This is not a change in definition, merely a change in location for clarity. COMMENT #2: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #3) concerns about the new testing requirements. Specifically, she indicated a lack of flexibility in the rules pertaining to the new requirements. She also requested postponement of the rules until alternatives can be found. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE: The “new” requirements noted in this comment are the new EPA rules. In her comments, Ms. Eighmey indicated that “states are not required to implement EPA’s rules verbatim, and EPA specifically allows more flexibility in the UST program than in its other regulatory programs.” Ms. Eighmey is correct that, in some areas, the state is allowed to be more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language.

More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #5) concerns about the department’s response to equipment that fails the new testing requirements. She indicated that “no information has been provided indicating what the department’s response will be when equipment that has never had to be tested before fails a test”. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey testified and stated in her written comments (PSTIF letter comment #6) that they oppose the requirement for tank systems to be double-walled. Ms. Eighmey also stated that there would be an increased cost, making double-walled tanks a disincentive for system replacement. Furthermore, she indicated that no data has been provided to indicate this requirement will reduce the frequency or severity of leaks. And she also stated

that this requirement would be a “de facto ban on steel tanks” for a number of reasons. Her comments also indicate that “we know fiberglass tanks [sic] are being deformed…by devices on vent stacks…” Additional, supporting comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE: In 2013, the department worked closely with the Missouri Petroleum Marketers and Convenience Store Association (MPCA) to establish a plan to comply with EPA’s requirements for secondary containment. At that time, the MPCA supported the plan to require double-walled systems, including double-walled tanks, as was documented in e-mails from the Executive Director on January 23, 2013. In regards to the comment about increased cost for double-walled tanks, the department proposed rule does not require implementation of this requirement until July 1, 2017. Failure to promulgate these rules will almost certainly lead to revocation of our SPA, which would mean the federal rules would be effective as written, with an implementation date for this specific requirement of April 13, 2016. As such, failure to promulgate this rule could potentially lead to more sites becoming subject to the requirement, sites with tanks already installed. This requirement will become effective in Missouri- either under this regulation or EPA’s. In response to Ms. Eighmey’s comments about a double-walled tank requirement being a “de facto ban on steel tanks,” it is key to note that, even though this requirement is not yet effective in Missouri, more double-walled steel tanks are being installed here than single-walled tanks (over twice as many double-walled steel tanks were installed thus far in 2016). It is also relevant to note that only about 11% of tanks installed in the past 4 years were steel tanks, which demonstrates that, even with the single-walled option in place, steel tanks are not the preferred tank system. At this time, I have not been provided with any data that demonstrates or proves that fiberglass tanks are being deformed by vapor recovery equipment. We are aware that a vacuum is being created on all tanks. We have proof that the vacuum affects product levels, in both steel and fiberglass tanks. We understand that fiberglass is a plastic that “moves,” even with simple temperature and pressure changes in and around the tank. We do not “know” that the tanks are being “deformed” or damaged by vapor recovery equipment. And as this regulation is not a “de facto” ban on steel tanks, this concern does not appear to be directly impacted by this regulation. The comment also noted that no proof has been provided that this requirement will reduce the number or severity of leaks. As this is a federal mandate, and EPA has already promulgated this rule without contestation, this requirement will be effective with or without this proposed rule. But in response to this specific comment, these double-walled tanks are designed so that a “leak” from a primary tank is contained by the secondary, meaning a release to the environment is prevented. In 2014, an owner/operator found liquid between the two walls of their double-walled tank. Upon removal, a hole was found in the primary wall. The product, though, was contained by the secondary wall, meaning that no release of fuel to the environment was found in association with a corrosion hole in the primary wall. The specific example I use is not an isolated event; each year, the department addresses leaks from portions of the UST’s primary system that do not result in releases because the leak was contained in the secondary system. Ironically, the department, EPA, and PSTIF regularly track and report on “releases” from UST

systems. We do not report on ‘near releases,’ leaks or failures that could have been releases to the environment were it not for the second wall. Furthermore, perhaps there is even support in the data that proves an increased number of double-walled tanks are in use, but the number of releases from tanks has decreased substantially over the years. COMMENT #5: In her verbal testimony and written comments, Ms. Eighmey opposed the proposed, state-specific proposal that would require installers to provide notification prior to installing new piping systems. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: Ms. Eighmey noted that this is not required under the new federal regulations, which is correct. With the new federal regulations, though, the requirements that apply to these new or replaced piping systems are more stringent. If the department is present during the installation, we can address any concerns or necessary changes prior to the piping system being buried and covered. If an installer fails to provide notification, the Department could potentially require changes that would necessitate removal of concrete, shutting down an operating site, and/or more work to the piping, all of which would have been much easier had they been noted at installation rather than after completion. That being said, most installers, owners, and operators already realize the benefit of the installation inspection and provide a courtesy notification. While the department notes the potential problems with not providing notification, we are willing to allow that choice to installers, owners and operators, so long as they understand the risks associated with not providing the courtesy notification. Fixing a problem after completion of installation is typically more costly and more complicated. With that information on record, the department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. The fiscal note has been amended. (1) Any installer who intends to install an underground storage tank (UST) or piping associated with a UST [or piping associated with a UST] system for storage of a regulated substance must, at least fourteen (14) days before installing the tank or before piping replacement [or before piping replacement], notify the department by approved form transmitted via email of intent to install a UST, except that this fourteen (14) day notice requirement may be waived by the department when a release is suspected or in other similarly urgent circumstances. The notification must provide the tank owner’s name, installer name, the name and location of the facility where the UST or piping [or piping] will be installed, the date that the installation is expected to commence, the date that the tank is expected to be brought in use, UST system information, including tank material, size, manufacturer, piping material, piping type, and manufacturer, release detection equipment, and spill and overfill equipment. The installation notice is valid for one hundred eighty (180) days from receipt by the department and only for the UST system(s) listed on the notice. If installation does not commence within one hundred eighty (180) days of the date on which the department received the notice, a new installation notice must be submitted prior to commencing installation activities. REVISED PUBLIC COST: In response to comments received, the department withdrew the proposed language requiring notification of piping replacement or installation. As such, the fiscal note was revised to remove the costs associated with this state-specific amendment; the

cost for the public sector to comply with the proposed state-specific requirements is $600 annually for this rule. Additionally, the changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: In response to comments received, the department withdrew the proposed language requiring notification of piping replacement or installation. As such, the fiscal note was revised to remove the costs associated with this state-specific amendment. As such, the fiscal note was revised to remove the costs associated with this state-specific amendment; the cost for the private sector to comply with the proposed state-specific requirements is $29,400 annually for this rule. Additionally, the changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.019 New Installation Requirements

Type of Rulemaking

Amendment












Anticipate less than 15 tanks each year that will need to be tied down that would not have otherwise

been tied down

Specific for this rule

$2,000 per tank for a total of $30,000 annually

___

Combined annual rule total

less than $30,000 x 98% privately owned =

$29,400 annually There are approximately

3,420 underground storage tank facilities


by private entities



Covers 25 rules


the new, federal regulations ___


$715 per facility x 3,420 facilities x


TOTAL ANNUAL COST: $2,279,076 annually

III. WORKSHEET See calculations in Section IV below for the rule-specific changes, specifically the cost to tie-down underground storage tanks (UST) at installation. Additionally, in this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. IV. ASSUMPTIONS The department is withdrawing the proposal to require installation notifications for piping installations. The rest of the proposed amendments to this rule remain unchanged. A proposed change is to require new marinas to comply with the Petroleum Equipment Institute’s Recommended Practice 1000-2009, Recommended Practices for the Installation of Marina Fueling Systems. These tanks are in environmentally sensitive areas, where a leak would impact water ecosystems almost immediately. In addition, these systems are uniquely

configured, with the tanks typically above the dispensers, which could allow the tank to be siphoned by the dispensers. These configurations can lead to significant leaks in environmentally sensitive areas. The department has been recommending the use of this guidance document since its publication in 2009. The Missouri Department of Agriculture has been requiring compliance with almost all, if not all of its significant pieces as well. The department is not aware of any marina UST installations that have not complied with this guidance document in the last four years. As such, we do not believe that compliance with this proposed change has a new cost associated with it, but do believe it will ensure clear requirements and environmental protection in the future. The department is also adding an option for post-installation tightness testing. Currently the regulations only provide one option for testing the tank after installation, a tank tightness test. The proposed regulation will add a second option, testing the tank using the automatic tank gauge with the tank 95% full. As this is a new, second option, it does not add a cost, but instead lowers the cost by creating a new, potentially less costly option for compliance. The final proposed change in this regulation is to require all new tanks be tied down. In the last three years, we have typically seen less than 10% of the tanks that are not tied down at install. With an average of 155 new tanks installed each year, that means that typically 15 tanks are not tied down. These tanks can float, leak product, cause damage to the site, hinder property sales, cause safety issues, and be a general nuisance. Based on information from installation contractors, the cost of a contractor- manufactured tie-down system is approximately $2,000. Please note, though, that the costs to address tanks that float are much higher than $2,000 per tank. They must be removed and leaks addressed. In addition, a tank that has floated can pose a significant safety hazard: it juts out of the ground; they can be difficult to see; they may cause vehicular damage; there are often open holes associated with them. Of the 386 tanks installed since January 1, 2014, 9 of them (or approximately 2%) were publically/government owned. The remaining 98% were privately owned. For the purposes of this fiscal note, we will use these percentages for the calculations of public and privates shares of the costs to the underground storage tank owners for only the state proposed changes within this installation rule. Please note, the percentage of active sites privately and publically owned is different. The following assumptions were used in calculating the cost of implementing all of the federal rule package requirements, which includes 25 amended and added rules in this state rule package:


2. The number of facilities provided includes sites that have all tanks out-of-use. As of October 31, 2016, 250 facilities out of the 3,420 facilities referenced have all of the tanks out-of-use. Most of these new requirements apply only to tanks that are in-use. Theoretically, any of the out-of-use facilities could re-open. Many do not, but for the

purposes of these calculations, we included all of these facilities. As such, again, this number of facilities is a conservative number.



4. EPA is required to provide a fiscal assessment for any rule amendments or additions, at

least a stringent as the state requirement for fiscal assessments. This fiscal note assumes EPA’s fiscal assessment and cost estimates are reasonable.

5. EPA also calculated potential savings in their final assessment. These savings, for both

public and private entities, include the reduced number of leaks, earlier detection resulting in smaller leaks, which should result in lower release investigation and response activity-related costs. The EPA included other potential savings in their assessment as well. For the purposes of this fiscal note, those savings are only mentioned here, but are not included in the calculated cost above.

REVISED FISCAL NOTE

PUBLIC COST


10 CSR 26-2.019 New Installation Requirements

Type of Rulemaking

Amendment










Anticipate less than 15 tanks each year that will need to be tied down that would not have otherwise

been tied down


$2,000 per tank for a total of $30,000 annually

___

Combined annual rule total less than $30,000 x

2% privately owned = $600 annually


tank facilities


by private entities


federal, state or local governments Covers 25 rules



___


8% publically owned = $195,624 annually




Covers 25 rules


federal regulations

• Missouri Petroleum Storage Tank Insurance



Fund (PSTIF)


Covers 25 rules


federal regulations Total annual public cost: $216,350.34 annually

+ $102,000 one-time cost

III. WORKSHEET For the calculations on the cost of the state proposed changes in this rule, specifically the requirement to tie-down new UST systems at installation, please see the calculations below in Section IV. Additionally, in this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note.

The additional costs to the state for implementation were calculated based upon the Missouri Department of Natural Resource’s expected additional costs. The Missouri Petroleum Storage Tank Insurance Fund (PSTIF) was asked to provide their expected costs as well. For the department’s costs, the department assumed that the new federal requirements would add approximately three (3) extra hours per week of documentation review. The new equipment test and inspections should require only simple documentation. Some of the tests or inspections are only required every three (3) years, but some are required annually. The department reviews this documentation in conjunction with the triennial UST facility inspections. As the department already requests the facility’s compliance documentation, these test reports will simply be extra documentation to review as part of the current records review process. With this part of an existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually.

This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process. IV. ASSUMPTIONS The department is withdrawing the proposal to require installation notifications for piping installations. The rest of the proposed amendments to this rule remain unchanged. A proposed change is to require new marinas to comply with the Petroleum Equipment Institute’s Recommended Practice 1000-2009, Recommended Practices for the Installation of Marina Fueling Systems. These tanks are in environmentally sensitive areas, where a leak would impact water ecosystems almost immediately. In addition, these systems are uniquely configured, with the tanks typically above the dispensers, which could allow the tank to be siphoned by the dispensers. These configurations can lead to significant leaks in environmentally sensitive areas. The department has been recommending the use of this guidance document since its publication in 2009. The Missouri Department of Agriculture has been requiring compliance with almost all, if not all of its significant pieces as well. The department is not aware of any marina UST installations that have not complied with this guidance document in the last four years. As such, we do not believe that compliance with this proposed change has a new cost associated with it, but do believe it will ensure clear requirements and environmental protection in the future. The department is also adding an option for post-installation tightness testing. Currently the regulations only provide one option for testing the tank after installation, a tank tightness test. The proposed regulation will add a second option, testing the tank using the automatic tank gauge with the tank 95% full. As this is a new, second option, it does not add a cost, but instead lowers the cost by creating a new, potentially less costly option for compliance. The final proposed change in this regulation is to require all new tanks be tied down. In the last three years, we have typically seen less than 10% of the tanks that are not tied down at install. With an average of 155 new tanks installed each year, that means that typically 15 tanks are not tied down. These tanks can float, leak product, cause damage to the site, hinder property sales, cause safety issues, and be a general nuisance. Based on information from installation contractors, the cost of a contractor- manufactured tie-down system is approximately $2,000. Please note, though, that the costs to address tanks that float are much higher than $2,000 per tank. They must be removed and leaks addressed. In addition, a tank that has floated can pose a significant safety hazard: it juts out of the ground; they can be difficult to see; they may cause vehicular damage; there are often open holes associated with them. Of the 386 tanks installed since January 1, 2014, 9 of them (or approximately 2%) were publically/government owned. The remaining 98% were privately owned. For the purposes of this fiscal note, we will use these percentages for the calculations of public and privates shares of the costs to the underground storage tank owners for only the state proposed changes within this installation rule. Please note, the percentage of active sites that are privately and publically owned is different.

The following assumptions were used in calculating the cost of implementing all of the federal rule package requirements, which includes 25 amended and added rules in this state rule package:









ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107 and 319.137 RSMo, the commission hereby amends a rule as follows:

10 CSR 26-2.020 is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1147). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above.

RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #3) concerns about the new testing requirements. Specifically, she indicated a lack of flexibility in the rules pertaining to the new requirements. She also requested postponement of the rules until alternatives can be found. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above. RESPONSE: The “new” requirements noted in this comment are the new EPA rules. In her comments, Ms. Eighmey indicated that “states are not required to implement EPA’s rules verbatim, and EPA specifically allows more flexibility in the UST program than in its other regulatory programs.” Ms. Eighmey is correct that, in some areas, the state is allowed to be

more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #5) concerns about the department’s response to equipment that fails the new testing requirements. She indicated that “no information has been provided indicating what the department’s response will be when equipment that has never had to be tested before fails a test”. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters, noted above.

RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on a broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey testified and stated in her written comments (PSTIF letter comment #6) that they oppose the requirement for tank systems to be double-walled. Ms. Eighmey also stated that there would be an increased cost, making double-walled tanks a disincentive for system replacement. Furthermore, she indicated that no data has been provided to indicate this requirement will reduce the frequency or severity of leaks. And she also stated that this requirement would be a “de facto ban on steel tanks” for a number of reasons. Her comments also indicate that “we know fiberglass tanks [sic] are being deformed…by devices on vent stacks…” Additional, supporting comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters, noted above. RESPONSE: In 2013, the department worked closely with the Missouri Petroleum Marketers and Convenience Store Association (MPCA) to establish a plan to comply with EPA’s requirements for secondary containment. At that time, the MPCA supported the plan to require double-walled systems, including double-walled tanks, as was documented in e-mails from the Executive Director on January 23, 2013. In regards to the comment about increased cost for double-walled tanks, the department proposed rule does not require implementation of this requirement until July 1, 2017. Failure to promulgate these rules will almost certainly lead to revocation of our SPA, which would mean the federal rules would be effective as written, with an implementation date for this specific requirement of April 13, 2016. As such, failure to promulgate this rule could potentially lead to

more sites becoming subject to the requirement, sites with tanks already installed. This requirement will become effective in Missouri- either under this regulation or EPA’s. In response to Ms. Eighmey’s comments about a double-walled tank requirement being a “de facto ban on steel tanks,” it is key to note that, even though this requirement is not yet effective in Missouri, more double-walled steel tanks are being installed here than single-walled tanks (over twice as many double-walled steel tanks were installed thus far in 2016). It is also relevant to note that only about 11% of tanks installed in the past 4 years were steel tanks, which demonstrates that, even with the single-walled option in place, steel tanks are not the preferred tank system. At this time, I have not been provided with any data that demonstrates or proves that fiberglass tanks are being deformed by vapor recovery equipment. We are aware that a vacuum is being created on all tanks. We have proof that the vacuum affects product levels, in both steel and fiberglass tanks. We understand that fiberglass is a plastic that “moves,” even with simple temperature and pressure changes in and around the tank. We do not “know” that the tanks are being “deformed” or damaged by vapor recovery equipment. And as this regulation is not a “de facto” ban on steel tanks, this concern does not appear to be directly impacted by this regulation. The comment also noted that no proof has been provided that this requirement will reduce the number or severity of leaks. As this is a federal mandate, and EPA has already promulgated this rule without contestation, this requirement will be effective with or without this proposed rule. But in response to this specific comment, these double-walled tanks are designed so that a “leak” from a primary tank is contained by the secondary, meaning a release to the environment is prevented. In 2014, an owner/operator found liquid between the two walls of their double-walled tank. Upon removal, a hole was found in the primary wall. The product, though, was contained by the secondary wall, meaning that no release of fuel to the environment was found in association with a corrosion hole in the primary wall. The specific example I use is not an isolated event; each year, the department addresses leaks from portions of the UST’s primary system that do not result in releases because the leak was contained in the secondary system. Ironically, the department, EPA, and PSTIF regularly track and report on “releases” from UST systems. We do not report on ‘near releases,’ leaks or failures that could have been releases to the environment were it not for the second wall. Furthermore, perhaps there is even support in the data that proves an increased number of double-walled tanks are in use, but the number of releases from tanks has decreased substantially over the years. COMMENT #5: In her written comments, Ms. Eighmey suggested deleting the definition of double-walled tank here and creating one in the definitions rule. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: The suggested change is accepted. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations.

COMMENT #6: Ms. Eighmey commented on the use of the word “replaced,” specifically as it pertains to the tank portion of the system. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: While we agree and we, too, consider a new tank simply a new tank, regardless of whether they had been one previously located in the same pit, site or location, EPA clearly defined this term to avoid ambiguity and a potential loophole to occur. So while we all agree on Missouri’s intent, and while we all currently agree on what is a “new” tank, we will leave the EPA language in as drafted, to ensure there are no questions, loopholes or ambiguity for future readers. As such, no change is proposed in response to this comment. COMMENT #7: Ms. Eighmey commented on the double-walled piping language, indicating that it was found in two different places in the rule. In addition, in a separate comment, Ms. Eighmey also noted that the Missouri regulation uses “within any twelve (12) month period” and suggested deleting this language. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Yes, there are two places that discuss double-walled piping. The first place is in subsection (B). This specific language outlines when the requirement is effective for new and replaced piping. It references paragraph 5 of the subsection, which describes the what and how of the requirement- what the piping must include and how it must all be installed. These are two separate pieces that are not contradictory, but are necessary to clarify the when, what and how of the double-walled piping requirements. Ms. Eighmey is correct that the “within any twelve (12) month period” is not in the federal language. The way the federal language is written, if 50% or more of the piping is replaced ever, then the entire run must be secondarily contained. Therefore, under the federal requirements is 30% of the piping is replaced and then a different 25% of the piping is replaced three (3) years later, that final 25% being replaced would trigger the requirement for all of the piping to be replaced. The federal language has open-ended timeframes that could apply over years and years of piping work. The department, owners, operators and contractors would have to track the exact amount of piping repairs each and every time, for the entire operational life of the system, and then potentially be subject to a large, and costly, full replacement at the moment the replacement, over its operational life since the rule became effective, exceeds 50%. The department’s language limits the timespan, reduces tracking, and reduces the number of scenarios that would require full piping replacement (and becoming subject to all of the other secondary containment requirements, like sump testing and monitoring as well). As such, no change is proposed in response to these comments. COMMENT #8: In her written comments, Ms. Eighmey suggested deleting the word “system” from piping systems related to piping replacement. She noted that “piping systems” is not defined. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above.

RESPONSE AND EXPLANATION OF CHANGE: The suggested change is accepted. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #9: Ms. Eighmey commented on the dispenser replacement language, specifically the addition of the word “replaced” as it pertains to equipment installation under the dispenser. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: As noted in response to a previous comment, EPA specifically referenced new or replaced equipment, as it pertains to piping and tank installations, to ensure clarity and avoiding a loophole being created. In this section, the department added the words “or replaced” to ensure consistency with all of the other equipment installation and replacement language, as well to ensure clarity and avoid a potential loophole, satisfying the intent of the federal requirements. Furthermore, this language is different from the federal language, specifically to limit its application (limit the scenarios in which a containment sump is required.) This language was approved by EPA, but they noted it was different from the federal language. The owners/operators requested amended language in this section. Should we opt to change the language at this juncture, we would need to confirm EPA still approves the language. As such, leaving it as is ensures clarity, consistency with the other equipment language, as well as prevents “re-evaluation” of that language by EPA. As such, no change is proposed in response to this comment. COMMENT #10: In her written comments, Ms. Eighmey suggested replacing the “and” with an “or” in the testing and monitoring component of the dispenser replacement language, found in 10 CSR 26-2.020(1)(E)2. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: All of the relevant rules were reviewed in response to this comment, specifically 10 CSR 26-2.020(1)(E), 10 CSR 26-2.035 (containment sump testing rule), and 10 CSR 26-2.036 (walkthrough inspections rule). Please note, the language did not mirror EPA’s exactly because the language in the relevant rules does not mirror EPA’s language. To comply with the EPA rules, a new containment sump required under this rule must comply with the annual walkthrough requirement, which includes required documentation, or comply with the containment sump test requirements. Therefore testing or monitoring is required under the EPA regulations. This comment points out the originally proposed language is too vague. To make the rule more consistent with the federal language and still satisfy the three relevant rules, the department will amend the text in the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #11: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth’s comment appears to be a request for confirmation that these new system requirements do not apply to existing systems and do not require equipment replacement.

RESPONSE: The secondary containment requirements, which include requirements for double-walled tanks, double-walled piping, containment sumps and/or interstitial monitoring, are only effective when a new UST system, tank or piping is installed or when a tank, piping system, and/or dispenser are replaced. As long as all UST equipment remains in place and is functioning properly, these rules do not require upgrading existing equipment to meet the secondary containment standards. As such, no change is proposed in response to this comment.

(1) (A) Tanks.

5. Tanks installed on or after July 1, 2017, must be double-walled. [A double-walled tank is a tank within a tank, where the outer walls and inner walls are separated, the inner tank is contained within the outer tank to a minimum of ninety-five percent (95%) containment and has an interstitial space capable of being monitored.] (D) For new or replaced tanks or piping [systems] installed after July 1, 2017, containment sumps must be installed at each tank top suction piping or submersible turbine pump connection, each piping transition, ball valve or single-walled fitting location, and under each dispenser. The containment sump must be liquid-tight on its sides, bottom, and at any penetrations, with interstitial monitoring in accordance with 10 CSR 26-2.043(1)(H) and sump testing in accordance with 10 CSR 26-2.035; 2. Under-dispenser containment must be liquid-tight on its sides, bottom, and at any penetrations and must [allow for visual inspection and access to the components in the containment sump and] comply with the annual walkthrough inspection requirements in 10 CSR 26-2.036 or be tested or monitored for leaks from the dispenser system in accordance with 10 CSR 26-2.035. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.

REVISED FISCAL NOTE

PRIVATE COST


10 CSR 26-2.020 Performance Standards for New Underground Storage Tank Systems

Type of Rulemaking

Amendment













tank facilities


by private entities

















10 CSR 26-2.020 Performance Standards for New Underground Storage Tank Systems

Type of Rulemaking Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107 and 319.137 RSMo, the commission hereby amends a rule as follows:



more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #5) concerns about the department’s response to equipment that fails the new testing requirements. She indicated that “no information has been provided indicating what the department’s response will be when equipment that has never had to be tested before fails a test”. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters, noted above.

RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey provided comments, both written and in her verbal testimony, opposing a specific component of the interior lining portion of this rule, specifically the requirement to retain more detailed test reports. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: EPA’s new regulations include changes to this interior lining regulation, specifically that any lined tank where the lining cannot simply be patch-repaired must be permanently closed. Missouri UST owners and operators repeatedly expressed their desire to be able to prove that the lined tank was still appropriate for use, even if a complete, new lining is installed. They requested a variance from the EPA requirements. The department discussed with EPA over the course of months options for this specific language. The only way the department is allowed to be different from the EPA, according to the SPA rules for this specific section, is for the department to convince EPA that the Missouri rule will be at least as protective of human health and the environment as the EPA language. That convincing was no small feat on this specific topic. On the contrary, development of “acceptable” language and provisions was a long, thorough process, resulting in the language proposed within this rule. The EPA representatives, though, specifically indicated that the entire interior lining ‘language package’ was the bare minimum that they would accept. That ‘language package’ was required to specifically include better and more thorough documentation of the interior lining inspection. Based on historic and recent conversations with EPA staff, if this requirement for more thorough and better documentation is removed from the interior lining rule language, EPA will likely not accept the language as meeting the SPA requirement. Which means the federal language would

be the only other option. The federal language would eventually become the state requirement. Missouri owners and operators would lose the options that the department worked diligently to create, at their request. As such, there are only two options at this point: 1) the currently proposed Missouri-specific language, which allows options for compliance or 2) EPA’s rule language as they drafted it. We cannot take apart pieces of the proposed language. It seems imprudent to promulgate language that it knows will likely result in the loss of SPA in the future. Knowing that these are the two options, and based upon repeated and numerous UST owner/operator requests for state-specific options in this rule, the department will retain the state-specific, proposed language as requested. As such, no change is proposed in response to this comment. COMMENT #5: Ms. Eighmey provided written comments indicating the proposed language in the interior lining portion of this rule is confusing. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: Based on Ms. Eighmey’s comments about confusion and clarity, the department has opted to make changes to some of the language in the rule. One comment indicated that it was unclear when the requirement in subsection (3)(A) becomes effective, because it appears to only be effective after January 1, 2020. That interpretation is correct and that is what the rule states. The department is giving time to lining manufacturers to get their products UL1856 listed, if not already completed, prior to the requirement going into effect. The rule, though, still requires compliance with all current interior lining standards, at a minimum, until that compliance date. As such, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #6: Ms. Eighmey provided written comments raising concerns about allowing multiple repairs to a lining system. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: The regulation requires demonstration that the lining and tank system meets certain standards, continues to function as installed, basically to demonstrate that it is not leaking. As long as the lining system, whether repaired or replaced, continues to be tested, inspected and documented to be functioning properly, the department did not feel it necessary to limit the number of repairs and/or replacements. This decision was supported by the UST owners and operators in the informal outreach leading up to the proposed rule, as they continually requested the ability to prove their system works. Furthermore, a cost estimate associated with requiring permanent closure after two failed linings was not conducted. This would be a significant cost for many small business owners; it was not included in the regulatory impact report or small business review. This proposal should be reviewed prior to future rulemaking efforts, though. As such, no change is proposed in response to this comment. COMMENT #7: Ms. Eighmey provided a written comment noting that a version of the underwriters laboratory 1856 Outline of Investigation for Underground Fuel Tank Internal

Retrofit Systems did not include the version or publication year. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: Ms. Eighmey is correct, as the UL 1856 reference should have been included in the final list of approved codes and standards, but it was accidentally omitted from the list. The department has added the UL standard, with publication date, in the text of the Order of Rulemaking, specifically in subsection (7) which lists approved standards and codes. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #8: Ms. Eighmey provided written comments providing alternative language for the interior lining rule package. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Ms. Eighmey’s proposed alternative language actually changes the content and requirements of the rule, potentially eliminating some requirements for certain systems. This language is not simply a re-arrangement or change for clarity. As such, no change is proposed in response to this comment. COMMENT #9: Ms. Eighmey provided a written comment that section (6) seemed out of place and redundant, as it was already provided in 10 CSR 26-2.020. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: This rule, 10 CSR 26-2.021, specifically applies to upgraded UST systems. 10 CSR 26-2.020 applies to “new” (non-upgraded) UST systems. These are two different groups of UST systems. The dispenser replacement language must be applicable to both set of UST systems. This language must be included in this rule to ensure that an upgraded UST system is subject to the same dispenser replacement requirements as any other operating UST system. As such, no change is proposed in response to this comment. COMMENT #10: Ms. Eighmey provided a written comment that a period was needed in place of a semi-colon at the end of subparagraph (3)(A)1.G. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: This entire subsection (A) is part of a larger list under section (3), with it being the first in a list that includes subsections (A), (B), and (C). As such, the period goes at the end of the section, not in the middle of the list, in accordance with the Secretary of State’s formatting requirements. As such, no change is proposed in response to this comment. (3) Tank Upgrading Requirements.

(A) Interior lining or Tank Retrofit. A tank may be upgraded by internal lining or retrofit if—

1. The lining is installed in accordance with the requirements of 10 CSR 26-2.033 and the lining or retrofit meets the following additional requirements:

F. All linings must be installed, inspected, repaired and maintained in accordance with one of the following:

(I) For UL 1856 Lining systems, single-walled, co-structural systems and linings installed prior to January 1, 2020: (a) A lining may only be repaired if the [steel] tank passes an integrity test, including actual [steel] shell thickness readings for steel tanks. Approved integrity test methods are included in section (7) of this rule;

(b) A [replacement] lining may only be installed if the new lining meets the UL 1856 specifications and the steel tank passes an integrity test, including actual steel shell thickness readings. Approved integrity test methods are included in section (7) of this rule; (II) For UL 1856 Upgrade systems, double-walled, co-structural systems: (a) A lining may only be installed or repaired if the [steel] tank passes an integrity test, including actual [steel] shell thickness readings for steel tanks. Approved integrity test methods are included in section (7) of this rule; and ([6]7) The following codes and standards may be used to comply with this rule:

(E) National Leak Prevention Association Standard 631, Spill Prevention, Minimum 10 Year Life Extension of Existing Steel Underground Tanks by Lining Without the Addition of Cathodic Protection, revised 1999. This standard may only be used for interior lining application and inspection, not for inspection of the steel tank integrity. This document is incorporated by reference without any later amendments or modifications. To obtain a copy, contact the National Leak Prevention Association, (815) 301-2785, www.nlpa-online.org; [and]

(F) Ken Wilcox Associates Recommended Practice, Recommended Practice for Inspecting Buried Lined Steel Tanks Using a Video Camera, September 28, 1999. This document is incorporated by reference without any later amendments or modifications. To obtain a copy, contact Ken Wilcox Associates, 1125 Valley Ridge Drive, Grain Valley, MO 64029, (816)443-2494, www.kwaleak.com[.]; and

(G) Underwriters Laboratory (UL) 1856 Outline of Investigation for Underground Fuel Tank Internal Retrofit Systems, June 2013. This document is incorporated by reference without any later amendments or modifications. To obtain a copy, contact the Underwriters' Laboratories, 333 Pfingsten Road, Northbrook, IL 60062-2096, (847) 272-8800, www.ul.com. REVISED PUBLIC COST: No changes were made to the costs associated with the state-specific requirements in this rule; as such, the state-specific costs provided in the original fiscal note have not changed, except for correcting the percentage of sites that are privately and publically owned. The cost for the public sector to comply with the proposed state-specific requirements is $144 annually with an additional $640 one-time cost for this rule. The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.

http://www.nlpa-online.org/

http://www.kwaleak.com/

http://www.ul.com/

REVISED PRIVATE COST: No changes were made to the costs associated with the state-specific requirements in this rule; as such, the state-specific costs provided in the original fiscal note have not changed, except for correcting the percentage of sites that are privately and publically owned. The cost for the private sector to comply with the proposed state-specific requirements is $1,656 annually with an additional $7,360 one-time cost for this rule. The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.021 Upgraded Underground Storage Tank Systems

Type of Rulemaking

Amendment












Approximately 900 tanks at 425 facilities

92% are privately owned

Only one contractor indicated he did not meet the training requirements

$8,280 (every 5 years) or $1,656 (annually)

$7,360 one-time cost split between all owners

(92% of the one-time cost to one contractor)


tank facilities


by private entities



Covers 25 rules


the new, federal regulations ___


$715 per facility x 3,420 facilities x


TOTAL ANNUAL COST: $2,251,332 annually + $7,360 one-time cost

III. WORKSHEET See calculations in Section IV below for the rule-specific changes, specifically the cost to tie-down underground storage tanks (UST) at installation. Additionally, in this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. IV. ASSUMPTIONS The Department is proposing changes to old, lined tanks that are typically beyond their warranty and life-expectancy. These regulations are being changed to ensure that these tanks are being inspected and repaired in a way that confirms that they remain leak-free as long as they are operational. EPA’s UST regulation changes include modifications to the interior lining regulations. Specifically, their regulations require interior lined tanks be closed/replaced if the

interior lining fails. The Department’s proposed alternative requirements for interior linings, include: (1) Linings must meet the new UL 1856 installation standard,

(2) Technicians must be certified (technicians must be certified to do work in almost every other aspect of UST service),

(3) Documentation must include photographs, (4) An additional, less costly inspection option,

(5) A new technology that allows repair of a lined tank that might otherwise, under the federal regulations, have to be closed.

While pieces of this regulation may be more costly than the new regulation, the proposed interior lining rule must be considered in its entirety as an alternative to the EPA federal regulation, including the closure requirement. Furthermore, the Department is only aware of four companies that conduct interior lining installation and repair work in Missouri. Of those four companies, three of them already comply or are in the process of complying with the proposed regulations. As such, the proposed regulations have no associated increased costs to three of the four (including the two predominant companies) in Missouri. As the cost to permanently close a tank can be around $15,000-$20,000, the cost for the alternative interior lining rule package, which includes more detailed interior lining requirements, but doesn’t require permanent closure in the event of a failure, is a less costly requirement than the federal version of the same rule package. The one contractor that does not already meet the proposed regulations indicated that it would cost approximately $8,000 total to comply with the training and certification requirements. This is a one-time cost, which we assume will be passed down to the tank owners (split between privately public owners). He indicated that he believed his product is already tested to be certified under UL1856; as such, there would be no additional costs to comply with this requirement for his company. As for the additional documentation requirements, he indicated that he already does the additional documentation at some of the sites where he conducts interior lining inspections and installations. According to state records, he conducted approximately 13% of the interior lining inspections and installation; as he already complies with the additional documentation requirements at some of his sites, the Department used 10% of the lined tanks requiring additional documentation for the purposes of this RIR. The company that would need the additional documentation indicated that this would likely cost around $250 per facility report. As we have about 900 active lined steel tanks at approximately 355 facilities, this would leave approximately 35 lined tank facilities that would need additional documentation for the lining inspections and installations. With an expected 36 facilities needing additional documentation, costing $250 per facility report, we expect a total cost every five years (the interior lining inspection cycle) of $9,000, so the average annual cost is $1,800. Please note, the federal alternative would likely require permanent closure of some of these tanks, which could cost $15,000-$20,000 per tank.

Also included in this proposed rule is an additional, alternative interior lining inspection option. Some facilities opt to use interstitial monitoring to comply with tank release detection requirements. This monitoring could be used to meet the interior lining inspection. If a site is using interstitial monitoring, the Department could accept 12 months of interstitial monitoring records in lieu of the standard interior lining inspection. As an interior lining inspection can cost $2,000-$5,000 per tank, this is a potential significant cost savings per lined tank. Based on our data, it appears that 92% of the sites are privately owned; the remaining 8% are publically owned. The following assumptions were used in calculating the cost of implementing all of the federal rule package requirements, which includes 25 amended and added rules in this state rule package:









10 CSR 26-2.021 Upgraded Underground Storage Tank Systems

Type of Rulemaking

Amendment










Approximately 900 tanks at 425 facilities

92% are privately owned and 8% are publically

owned

Only one contractor indicated he did not meet the training requirements


$720 (every 5 years) or $144 (annual) for the

documentation requirements

$640 one-time cost split

between all owners (8% of the one-time cost to one

contractor)


tank facilities


by private entities


federal, state or local governments Covers 25 rules



___


8% publically owned = $195,624 annually





federal regulations

Covers 25 rules • Missouri Petroleum




Covers 25 rules



federal regulations Total annual public cost: $215,894.34 annually

+ $102,640 one-time cost

II. WORKSHEET For the calculations on the cost of the state proposed changes in this rule, specifically the requirement to tie-down new UST systems at installation, please see the calculations below in Section IV. Additionally, in this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher

costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. The additional costs to the state for implementation were calculated based upon the Missouri Department of Natural Resource’s expected additional costs. The Missouri Petroleum Storage Tank Insurance Fund (PSTIF) was asked to provide their expected costs as well. For the department’s costs, the department assumed that the new federal requirements would add approximately three (3) extra hours per week of documentation review. The new equipment test and inspections should require only simple documentation. Some of the tests or inspections are only required every three (3) years, but some are required annually. The department reviews this documentation in conjunction with the triennial UST facility inspections. As the department already requests the facility’s compliance documentation, these test reports will simply be extra documentation to review as part of the current records review process. With this part of an existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year)

and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process. III. ASSUMPTIONS The department is withdrawing the proposal to require installation notifications for piping installations. The remainder of the proposed amendments to this rule remain unchanged. A proposed change is to require new marinas to comply with the Petroleum Equipment Institute’s Recommended Practice 1000-2009, Recommended Practices for the Installation of Marina Fueling Systems. These tanks are in environmentally sensitive areas, where a leak would impact water ecosystems almost immediately. In addition, these systems are uniquely configured, with the tanks typically above the dispensers, which could allow the tank to be siphoned by the dispensers. These configurations can lead to significant leaks in environmentally sensitive areas. The department has been recommending the use of this guidance document since its publication in 2009. The Missouri Department of Agriculture has been requiring compliance with almost all, if not all of its significant pieces as well. The department is not aware of any marina UST installations that have not complied with this guidance document in the last four years. As such, we do not believe that compliance with this proposed change has a new cost associated with it, but do believe it will ensure clear requirements and environmental protection in the future. The department is also adding an option for post-installation tightness testing. Currently the regulations only provide one option for testing the tank after installation, a tank tightness test. The proposed regulation will add a second option, testing the tank using the automatic tank gauge with the tank 95% full. As this is a new, second option, it does not add a cost, but instead lowers the cost by creating a new, potentially less costly option for compliance. The final proposed change in this regulation is to require all new tanks be tied down. In the last three years, we have typically seen less than 10% of the tanks that are not tied down at install. With an average of 155 new tanks installed each year, that means that typically 15 tanks are not tied down. These tanks can float, leak product, cause damage to the site, hinder property sales, cause safety issues, and be a general nuisance. Based on information from installation contractors, the cost of a contractor- manufactured tie-down system is approximately $2,000. Please note, though, that the costs to address tanks that float are much higher than $2,000 per tank. They must be removed and leaks addressed. In addition, a tank that has floated can pose a significant safety hazard: it juts out of the ground; they can be difficult to see; they may cause vehicular damage; there are often open holes associated with them.

The following assumptions were used in calculating the cost of implementing all of the federal rule package requirements, which includes 25 amended and added rules in this state rule package:









ORDER OF RULEMAKING


10 CSR 26-2.022 is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1159). No changes were made to the text of this rule, but revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal

assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above. RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to

reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.022 Notification Requirements

Type of Rulemaking

Amendment













tank facilities


by private entities







III. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included

in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. IV. ASSUMPTIONS



3. The number of publically owned and privately owned facilities was reviewed, based on data available November 2016. Publically owned facilities include sites owned by the federal government, state government, and county or city governments. The calculated percentage of sites owned by government owners was approximately 8%. As this is simply a percentage, and we are aware of no reason that the number of these owners should dramatically change, we assumed a constant ownership of facilities to be approximately 92% private entities.





10 CSR 26-2.022 Notification Requirements

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; and 319.137 RSMo, the commission hereby amends a rule as follows:



more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #5) concerns about the department’s response to equipment that fails the new testing requirements. She indicated that “no information has been provided indicating what the department’s response will be when equipment that has never had to be tested before fails a test”. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above.

RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: In her written comments, Ms. Eighmey suggested alternative language, active rather than passive terms. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Unfortunately, Ms. Eighmey’s suggestion would require the owner or operator to actually “conduct” something, a test in this scenario. The department is not requiring an owner or operator to do the work themselves; in fact, owners and operators should not do the test or other work themselves unless they are properly trained in the procedures and knowledgeable in the relevant aspects of the UST system. The department uses passive voice because the owner must have systems that have or are being monitored/ tested, not do it themselves. As such, no change is proposed in response to this comment. COMMENT #5: In her written comments, Ms. Eighmey noted a typo in the name of the release detection workgroup, which should be National Work Group on Leak Detection Evaluations. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates Ms. Eighmey’s catch of the typo and has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations.

COMMENT #6: In her written comments, Ms. Eighmey noted a typo in section (4), specifically that the word “complete” was used twice. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates Ms. Eighmey’s catch of the typo and has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #7: In her written comments, Ms. Eighmey suggested alternative language for section (5), active rather than passive terms. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Unfortunately, Ms. Eighmey’s suggestion would require the owner or operator to actually “conduct” something, a test or inspection in this scenario. The department is not requiring an owner or operator do the work themselves; in fact, owners and operators should not do the test, inspection or other work themselves unless they are properly trained in the procedures, by the manufacturer, if required, and are knowledgeable in the relevant aspects of the UST system. The department uses passive voice because the owner/operator must have equipment that have or are being inspected/ tested, not do it themselves. As such, no change is proposed in response to this comment. COMMENT #8: In her written comments, Ms. Eighmey noted that the alternative test method language in (5)(C) referenced section (3) rather than the current section. She recommended that be changed to reference the requirements contained within the same section, section 5. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates Ms. Eighmey’s catch of the typo and has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #9: In her written comments, Ms. Eighmey suggested alternative language for sections (6) and (7), active rather than passive terms. She also suggested changing “out-of-use” to “out-of-operation.” A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Unfortunately, Ms. Eighmey’s first suggestion would require the owner or operator to actually “conduct” something, a test or inspection in this scenario. The department is not requiring an owner or operator do the work themselves; in fact, owners and operators should not do the test, inspection or other work themselves unless they are properly trained in the procedures, certified by the manufacturer, if required, and are knowledgeable in the relevant aspects of the UST system. The department uses passive voice because the owner/operator must have equipment that have or are being inspected/ tested, not do it themselves. As such, no change is proposed in response to this comment.

Ms. Eighmey also suggested changing “out-of-use” to “out-of-operation.” That would create inconsistent language, as the entire rule applies to in-use tanks, at Ms. Eighmey’s specific suggestion. As such, a tank that is “out-of-operation” for an extended period of time, but that still contains fuel, is subject to the inspection and/or testing requirements of this rule. As such, no change is proposed in response to this comment. COMMENT #10: In her written comments, Ms. Eighmey suggested requiring records be maintained for three years or until the next test or inspection is conducted.” A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: The currently proposed language is direct from the EPA regulations. The department used their timeframes and submitted this language for pre-review from EPA. Unfortunately, Ms. Eighmey’s suggestion could potentially be considered less stringent than EPA’s. As such, no change is proposed in response to this comment. COMMENT #11: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth’s comment is a question concerning whether there are “specific leak test methods for AHS piping.” RESPONSE: This is the spill equipment and overfill prevention equipment rule. This rule does not require testing of piping. We realize that spill and overfill prevention equipment may not be in place at this site as the delivery system is hard-piped into the airport hydrant fuel distribution system. This is not entirely unique and a waiver for alternative spill and overfill prevention is allowed. But this comment pertains to test methods. This rule outlines requirements for spill and overfill prevention and equipment testing; as such, the comment about test methods for piping does not appear relevant to this rule. As such, no change is proposed in response to this comment. (3) Owners and operators must meet one (1) of the following requirements to ensure their spill prevention equipment is operating properly and will prevent releases to the environment: (B) The spill prevention equipment is tested at least triennially to ensure the spill prevention equipment is liquid tight by using vacuum, pressure or liquid testing in accordance with one of the following: 2. Interstitial test (for double-walled spill basins only) or spill containment test listed by the National Work Group on Leak Detection Evaluations. To obtain copies of equipment certifications, contact the National Work Group [for]on Leak Detection Evaluations, www.nwglde.org; or (4) Spill basins may not be repaired with a partial or spot, field-applied repair kit or product. Repairs must either be a manufacturer-designed replacement insert or a complete factory-built, field-installed [complete] spill basin repair kit. Other repairs may be approved by the department if they are determined to be no less protective of human health and the environment. (5) Owners and operators must ensure their overfill prevention equipment is operating properly and will prevent releases to the environment. Overfill prevention equipment must be inspected

or tested at least triennially. At a minimum, the test or inspection must ensure that overfill prevention equipment is set to activate at the correct level specified in 10 CSR 26-2.020 and will activate when the regulated substance reaches that level. T e s t s o r i nspections must be conducted in accordance with one of the following criteria: (C) Other methods approved by the department, which may include a code of practice developed by a nationally recognized association or independent testing laboratory, determined to be no less protective of human health and the environment than the requirements listed in [paragraphs 1. through 3. of subsection (3)(B)] subsections (A) or (B) of this section. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.030 Spill and Overfill Control for In-Use Underground Storage Tank Systems

Type of Rulemaking

Amendment













tank facilities


by private entities

















10 CSR 26-2.030 Spill and Overfill Control for In-Use Underground Storage Tank Systems












tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING


10 CSR 26-2.031 is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1161). No changes were made to the text of this rule, but revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above.

RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey provided a written comment that supports the proposal to require replacement of metal piping if the cathodic protection system has been off for more than 90 days. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: The department appreciates the support, but would like to note that the department believes this is clarifying language, not an actual proposed change in application in the field. The rule had and does state that unprotected systems can only be brought back into use if confirmation of integrity is provided. There are ways to verify integrity of tanks, but no industry standard or procedure to verify piping integrity. As such, we believe replacement has always been required, but are providing better language to clarify that intent, but the department does

appreciate the supporting comment. As such, no change is proposed in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.031 Operation and Maintenance of Corrosion Protection

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.031 Operation and Maintenance of Corrosion Protection

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105 and 319.137 RSMo, the commission hereby amends a rule as follows:


RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: Ms. Eighmey provided a written comment, requesting the notice for system changes, under this compatibility rule, be reduced from 30 days to 14 days, like the new installation notification requirement was changed. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE: The notification requirement in this rule, specifically to notify the department at least 30 days prior to switching to storing a biofuel, is a federal requirement, based on the new federal regulations. The new installation notification requirement, and its associated timeframes, is state-specific and, as such, is not subject to the “cannot be any less stringent” than EPA requirement. On the other hand, this regulation must, at a minimum, meet the federal

requirements, including notification timelines. As such, no change is proposed in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.032 Compatibility

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.032 Compatibility

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING





RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: In her written comments, Ms. Eighmey suggested deleting the words “that is” in section (E). A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #5: In her written comments, Ms. Eighmey indicated that “we had not previously seen the proposed language in section (F)...” and suggested a change. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE: Ms. Eighmey published this language in the PSTIF Advisory Committee materials for the meeting held on June 14, 2016, (http://www.pstif.org/agenda_advisory committee.html). The content of the language in her own publication is exactly the same as the rule language published in the Missouri Register on September 15, 2016, with one minor change of a period to a semi-colon made by the Secretary of State’s office. In response to the suggested change, Ms. Eighmey’s suggested language would require the owner or operator to actually “conduct” something, a test or a repair in this scenario. Some of her suggested language changes would result in a rule that only requires post-repair testing if the owner/operator does the repair himself, but not necessarily if a contractor does the repair. The

http://www.pstif.org/agenda_advisory%20committee.html

department is not requiring an owner or operator to do the work themselves; in fact, owners and operators should not do the test, repairs or other work themselves unless they are properly trained in the procedures and knowledgeable in the relevant aspects of the UST system. The department uses passive voice because the owner must have systems that have or are being monitored, tested and properly repaired, not do it themselves. As such, no change is proposed in response to this comment. (2) The repairs must meet the following requirements:

(E) Repaired tanks and/or piping must be tightness tested in accordance with release detection methods listed in 10 CSR 26-2.043(1)(D) and 10 CSR 26-2.044(1)(B) within thirty (30) days following the date of the completion of the repair, [except as provided in the following paragraphs:] unless tested using another method [that is] determined by the department to be no less protective of human health and the environment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.

REVISED FISCAL NOTE

PRIVATE COST


10 CSR 26-2.033 Repairs Allowed

Type of Rulemaking

Amendment













tank facilities


by private entities


















Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually













III. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. The additional costs to the state for implementation were calculated based upon the Missouri Department of Natural Resource’s expected additional costs. The Missouri Petroleum Storage Tank Insurance Fund (PSTIF) was asked to provide their expected costs as well. For the department’s costs, the department assumed that the new federal requirements would add approximately three (3) extra hours per week of documentation review. The new equipment test and inspections should require only simple documentation. Some of the tests or inspections are only required every three (3) years, but some are required annually. The department reviews this documentation in conjunction with the triennial UST facility inspections. As the department already requests the facility’s compliance documentation, these test reports will simply be extra

documentation to review as part of the current records review process. With this part of an existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process.

IV. ASSUMPTIONS 1. As of October 31, 2016, the number of UST facilities with at least one tank not yet

permanently closed is 3,420 facilities. The department assumes that this number will continue to decrease slowly, as it has done for many years. For the “annual” cost calculation, though, we assumed a steady number of facilities, which should be a conservative estimate.








ORDER OF RULEMAKING



RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well.

In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: In her written comments, Ms. Eighmey suggested rephrasing (1)(A)1. so that it is consistent with the other paragraphs. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The suggested change is accepted. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #3: In her written comments, Ms. Eighmey suggested alternative, shorter language for (1)(B)1. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above.

RESPONSE AND EXPLANATION OF CHANGE: The suggested change is accepted. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #4: Ms. Eighmey suggested deleting the words “and all other ancillary equipment” her written comments, indicating that it ties to her comment opposing the definition of UST system. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. In Ms. Eighmey’s additional written comments on this topic, she noted that “no explanation has been provided as to why the rulemaking proposes a broader definition.” RESPONSE: The definition of “underground storage tank” or UST has not changed since 1989, which is when the Missouri Statutory definition of underground storage tank was written in 319.100(16). While many other EPA definitions were included in the Missouri rule by reference, this specific definition was not. Instead the rule referenced the Missouri statute. The original (circa 1986) federal definition of underground storage tank, as provided in 40 CFR 280.12, “means any one or combination of tanks (including underground pipes connected thereto) that is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is 10% or more beneath the surface of the ground.” (Emphasis added) The original (established 1989) Missouri statutory definition of underground storage tank is “any one or combination of tanks, including pipes connected thereto, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is 10% or more beneath the surface of the ground.” There is one word different between the two definitions- the word in question discussed in Ms. Eighmey’s comments. As statute supersedes rule, and as the statutory definition was incorporated by reference into the state rule, it is clear that the definition included in this draft is, in fact, the same definition provided in 319.100 of the Revised Statutes of Missouri. In this respect we agree with Ms. Eighmey’s comments: the definition has not changed in 27 years. The definition has remained the same since written into statute in 1989. Since the definition is not actually changing, Missouri’s implementation is not changing. To clarify this, though, please note the following:


2) DNR and the Missouri Department of Agriculture have an informal understanding that, as the Missouri Department of Agriculture inspects dispenser areas two times and as the

fire code, which they enforce, provides extensive and thorough requirements in the dispenser area, DNR does not typically conduct extensive inspections in the dispenser cabinet, above the shear valve. That being said, though, the department regularly responds to releases from equipment above the shear valve in the dispenser area; PSTIF has claims for releases from equipment in the dispenser area. In Federal Fiscal Year 2016 alone, the department reported five new releases from the dispenser areas. The PSTIF has corresponding claims associated with these five releases.

Therefore, the department does not believe there to be any change in the definition for regulated underground storage tanks. It was previously found only in the statute, but incorporated by reference into the regulation. At this time, the proposed change is simply including the actual statutory language in the rule, so that the definitions may be found in one location. As such, since we are not “changing” the definition, we also disagree that this proposed rule will make significant changes to how the department implements the rule, nor is a fiscal assessment required, either in the rule or the regulatory impact report. No change is made in response to this comment. COMMENT #5: In her written comments, Ms. Eighmey suggested rephrasing (1)(B)5. for clarity. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: The suggested change is accepted. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #6: In her written comments, Ms. Eighmey suggested alternative language for (1)(B)6, indicating that the rule language does not include recordkeeping timeframes. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. COMMENT #7: In her written comments, Ms. Eighmey suggested alternative language for (1)(B)7, indicating that the rule language does not include recordkeeping timeframes. comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE TO COMMENTS 6 AND 7: For both of these referenced rules, the detailed requirements and options for recordkeeping are outlined within the referenced rule. Duplicating that language herein would be duplicative and is unnecessary as the requirement is detailed within the relevant rule itself. Furthermore, shortening the language to the suggested language provided by Ms. Eighmey would make it inconsistent with the more comprehensive language found within the relevant rules. As such, no change is proposed in response to these comments. COMMENT #8: In her written comments, Ms. Eighmey suggested adding language in this rule to include a reference to the requirement to retain documentation of a valid financial

responsibility mechanism, thereby making this a more comprehensive list. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: The suggested change is accepted. The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #9: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth’s comment indicates that this rule cites 10 CSR 26-2.078 as a requirement for investigation of soil and groundwater, which references the Missouri Risk-Based Corrective Action Process for Petroleum Storage Tanks Guidance Document. Mr. Landreth indicates that the airport cannot meet these requirements and the regulation should allow alternative options. RESPONSE: First, this rule lists the documentation retention requirements. This is not the rule that requires compliance with 10 CSR 26-2.078, any other investigation or corrective action rules, or the Missouri Risk-Based Corrective Action Process for Petroleum Storage Tanks Guidance Document per se. As such, this comment does not appear relevant to this rule. That being said, airport hydrant fuel distribution systems were previously deferred from compliance with 10 CSR 26-2.020 through 10 CSR 26-2.064. These tanks have not been deferred from any of the “remediation” regulations in 10 CSR 26-2.070 through 10 CSR 26-2.083, which includes the regulation specifically referenced in Mr. Landreth’s comment, 10 CSR 26-2.078. So, compliance with 10 CSR 26-2.078 has been required for many years. No change is occurring now. Furthermore, the airport hydrant fuel distribution system has had at least seven (7) releases, five (5) of which are currently being addressed under the Missouri Risk-Based Corrective Action Process for Petroleum Storage Tanks Guidance Document. As this facility has been subject to this rule, and has been conducting investigations and corrective action under the referenced guidance document, it appears that this facility can, in fact, meet these standards. As such, no change is proposed in response to this comment. COMMENT #10: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth’s comment on this rule discusses inspection frequency and the request to amend the inspection procedures for airport hydrant fuel distribution systems. RESPONSE: Inspection frequency is not covered in this, or any of the other state UST regulations, proposed and open for revision at this time. The inspection frequency is established in the 2005 Energy Policy Act, meaning it is required under federal law. The procedure can be discussed between EPA, the department and the facility. EPA is currently working on an inspection procedure specifically for airport hydrant fuel distribution systems. Furthermore, the department has already discussed potential inspection issues with facility staff and expect to

continue those discussions in the future. As such, this comment is not relevant to the rule. No change is proposed in response to this comment.

(1) Owners and operators of underground storage tank (UST) systems must cooperate fully with inspections, monitoring, and testing conducted by the department, or the department’s authorized representative, as well as requests for document submission, testing, and monitoring[ by the owner or operator].

(A) Reporting. Owners and operators must submit the following information to the department: 1. Notification for all UST systems [[by] subject to the notification requirements in] (10 CSR

26-2.022); (B) Record Keeping. Owners and operators must maintain the following information:

1. [A corrosion expert’s expert analysis of site corrosion potential if corrosion protection equipment is not used (10 CSR 26-2.020(1)(A)4. And (1)(B)4.;] Installation records for [secondary containment of double-walled equipment, including tanks, piping, containment sumps, and spill basins,] any UST system or system component installed after July 1, 2017;

5. Documentation demonstrating spill and overfill prevention equipment is being properly maintained[,] and inspected [and]or tested (10 CSR 26-2.030);

[5]9. Results of the site investigation conducted at permanent closure (10 CSR 26-2.064)[.]; [and]

10. Documentation demonstrating compliance with the operator training rule (10 CSR 100-6)[.]; and

11. Documentation demonstrating a valid financial responsibility mechanism is in effect (10 CSR 26-3). REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.




Type of Rulemaking

Amendment













tank facilities


by private entities

















Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually














existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process.










ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; and 319.137 RSMo, the commission hereby adds a rule as follows:

10 CSR 26-2.035 is adopted. A notice of proposed rulemaking containing the text of the proposed new rule was published in the Missouri Register on September 15, 2016 (41 MoReg 1165). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed new rule becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above.


more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility,” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey testified and provided in her written comments (PSTIF letter comment #5) concerns about the department’s response to equipment that fails the new testing requirements. She indicated that “no information has been provided indicating what the department’s response will be when equipment that has never had to be tested before fails a test”. Additional, similar comments were also submitted by Mr. Leone and Mr. Greenwalt, commenters noted above.

RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on a broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey’s written comment provided alternative language for the entire containment sump testing rule. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The alternative language provided does not simply provide changes to make it clearer, but in fact, changes the content of the regulation. For example, if a sump has two walls, the inner wall fails, but the outer wall is still leak-tight, under the state language, the outer wall would become the primary wall and could be tested. Under the suggested language, both walls must be monitored or the inner wall can be tested. The suggested language, in a number of ways, is actually more limiting in its application. The comment did cause the department to realize that, the current language, also limits containment sumps that could potentially in the future, have three walls, much like the triple-walled fiberglass tanks that are available. As such, one portion of the language was tweaked to say at least two walls. Ms. Eighmey’s suggested language separated the portion of the rule that includes the approved procedures. This suggestion is accepted and appropriate changes made. The revised text is reprinted below as it will be published in the Code of State Regulations. Furthermore, Ms. Eighmey’s language indicated that the interstitial integrity assessment must be conducted with an interstitial sensor. Again, that language limits options that could be allowed under the department’s language, like a manual check or a single interstitial test conducted with equipment that does not include an interstitial sensor (e.g. vacuum or pressure gauge). As such, no change is proposed in response to this comment.

(1) Owners and operators of underground storage tank (UST) systems with containment sumps required by 10 CSR 26-2.020 and/or 10 CSR 26-2.021, must ensure the continued integrity of required containment sumps by meeting one of the following requirements:

(A) The containment sump has at least two (2) walls and an interstitial space and the integrity of [both] two walls is interstitially monitored annually; or

(B) The containment sump primary wall is tested at least triennially to ensure the equipment is liquid-tight by using vacuum, pressure, or liquid testing[ in accordance with one (1) of the following criteria:].

(2) The testing and/or monitoring required by this rule must be conducted in accordance with one (1) of the following:

[1.](A) [Requirements]A tightness test developed and published by the manufacturer (Note: Owners and operators may use this option only if the manufacturer has developed testing requirements.); [2.](B) An interstitial test or containment sump test listed by the National Work Group on Leak Detection Evaluations. To obtain copies of equipment certifications, contact the National Work Group [for] on Leak Detection Evaluations, www.nwglde.org; or [3.](C) Petroleum Equipment Institute RP 1200-12, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities. This document is incorporated by reference without any later amendments or modifications. To obtain a copy, contact the Petroleum Equipment Institute, Box 2380, Tulsa, OK 74101-2380, (918) 494- 9696, www.pei.org; or [4.](D) Another method approved by department, including code(s) of practice developed by a nationally recognized association(s) or independent testing laboratory(ies), determined to be no less protective of human health and the environment than the requirements listed in [paragraphs 1. through 3. of this subsection] subsections (A) through (C) of this section.

([2]3) Owners and operators must maintain record(s) of the required containment sump monitoring for twelve (12) months or test(s) required by this rule until the next test is performed. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package

(not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.




Type of Rulemaking

New Rule













tank facilities


by private entities

















Type of Rulemaking

New Rule











tank facilities


private entities





___



$195,624 annually














existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process. II. ASSUMPTIONS










ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; and 319.137 RSMo, the commission hereby adds a rule as follows:

10 CSR 26-2.036 is adopted. A notice of proposed rulemaking containing the text of the proposed new rule was published in the Missouri Register on September 15, 2016 (41 MoReg 1165). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed new rule becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above.



RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey’s written comment provided alternative language for the entire walkthrough inspection rule. She noted that EPA allows a less frequent walkthrough inspection and requested that flexibility. She also requested an option for an alternative procedure. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: EPA’s original language indicated that sites that receive deliveries less frequently (deliveries are more than 30 days apart) can comply with the “monthly” walkthrough inspection requirements only immediately before a delivery. The department had concerns that the documentation needed to demonstrate frequency of deliveries could be problematic: a record of two deliveries happening 45 days apart is not proof that another delivery did not occur in the interim. Furthermore, most, if not all, of these types of UST systems are emergency generator fuel storage tanks, that do not always track fuel usage; meaning, the department would not have a good way to verify that the deliveries and fuel usage are consistent, as would be possible at a retail UST facility. The burden of documentation seemed onerous in comparison to the requirement itself- to open a spill basin lid and clean it every 30 days. Lastly, as most of these tank systems are associated emergency generator systems, a requirement to conduct routine system inspections, under other regulatory authorities, already applies. That being said, the department is willing to re-add the language to include this option.

The other suggested language comments did not appear to change content, but simply seemed to be a preference in language. Other than the suggested changes provided in Ms. Eighmey’s first section, which make the rule apply to a site rather than a responsible party, the changes are largely made, as suggested, in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. (1) To properly operate and maintain underground storage tank (UST) systems, owners and operators must ensure the following requirements are met[ by the timeframes outlined in section (2)]: (A) [Conduct a walkthrough inspection that, at a minimum, checks the following equipment as specified below] Owners and operators must ensure walkthrough inspections are conducted as follows: 1. [Every thirty (30) days, owners and operators must- A. For spill prevention equipment -] Spill prevention equipment must be checked at least once every thirty (30) days, or prior to each delivery for USTs that receive deliveries less frequently than once every thirty (30) days. The person(s) conducting the inspection must visually check for any damage[;], remove liquid or debris[;], check for and remove obstructions in the fill pipe, check the fill cap to make sure it is securely on the fill pipe[;], and for double-walled spill prevention equipment [with]using interstitial monitoring , check for a leak in the interstitial area; and [B]2. [For r]Release detection [systems -]equipment must be checked at least once every thirty (30) days. The person(s) conducting the inspection must check to make sure the release detection system is operating with no alarms or other unusual operating conditions present[;] and ensure records of release detection testing are reviewed monthly and are current; [2.](B) At least [A]annually, owners and operators must[-] ensure the following is done:

[A]1. [For c]Containment sumps required in 10 CSR 26-2.020 or 10 CSR 26-2.021, including tank top or submersible turbine pump, under-dispenser, and transition or intermediate sumps, [ -] must be visually checked for any damage, leaks to the containment sump area, or releases to the environment; [remove any ]liquid or debris must be removed; and [for]the interstitial space of double- walled containment sumps[, check for a leak in the interstitial area] must be checked for leaks; and

[B]2. [For]Tank gauge sticks or other hand held release detection equipment [- check devices such as tank gauge sticks for ] must be checked for operability and serviceability. ([2]C) The first walkthrough inspections in this section [(1) ]are due-

[(A)]1. Immediately upon installation for new UST systems installed after July 1, 2017; or [(B)]2. No later than January 1, 2020, for existing UST systems.

([3]D) Owners and operators may use the following codes to comply with this rule:

[(A)]1. Petroleum Equipment Institute RP 500-11, Recommended Practices for Inspection and Maintenance of Motor Fuel Dispensing Equipment. This document is incorporated by reference without any later amendments or modifications. To obtain a copy, contact the Petroleum Equipment Institute, Box 2380, Tulsa, OK 74101-2380, (918) 494-9696, www.pei.org ;

[(B)]2. Petroleum Equipment Institute RP 900-08, Recommended Practices for Inspection and Maintenance of UST Systems. This document is incorporated by reference without any later amendments or modifications. To obtain a copy, contact the Petroleum Equipment Institute, Box 2380, Tulsa, OK 74101-2380, (918) 494-9696, www.pei.org.

3. Another method approved by department, including code(s) of practice developed by a nationally recognized association(s) or independent testing laboratory(ies), determined to be no less protective of human health and the environment than the requirements listed in this rule. ([4]E) Owners and operators must maintain records (in accordance with 10 CSR 26-2.034) of [operation and maintenance walkthrough] the inspections required by this rule for one (1) year. The record must include a list[ing] of each area checked, whether each area checked was acceptable or needed [to have any ]action[ taken], and a description of any actions taken [to correct an issue]as a result of the inspection. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.036 Operation and Maintenance Walkthrough Inspections

Type of Rulemaking

New Rule













tank facilities


by private entities
















10 CSR 26-2.036 Operation and Maintenance Walkthrough Inspections

Type of Rulemaking

New Rule











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; 319.111; and 319.137 RSMo, the commission hereby amends a rule as follows:




RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey provided a written comment that the title of the rule indicates the rule applies to all UST systems, but the text indicates it is only applicable at in-use systems. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department has made the requested changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #5: Ms. Eighmey provided a written comment concerning confusion over the term “method” being used in multiple places. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates the comment and understands the concern. In response, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #6: Ms. Eighmey provided a written comment concerning the location of the operability requirements. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above.

RESPONSE: Some form of operability requirement applies to almost every release detection method, depending on how it is being conducted. As such, the department believes that this is the most appropriate location for this language. As such, no change is proposed in response to this comment. COMMENT #7: Ms. Eighmey provided a written comment concerning confusion over the term “existing sites” and proposed alternative language. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates the comment and understands the concern. In response, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #8: Ms. Eighmey provided a written comment requesting language be added that clearly states that a battery backup test is not required when the system is monitored remotely. She stated that she understood this to be the department position and requested clarification of this determination. Mr. Greenwalt also submitted a similar comment. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates the comment and understands the concern. The department has previously stated that if the records are stored in an alternative location, one not affected by the power loss at the automatic tank gauge, then that electronic record retention on a backup system satisfies the intent of this rule, which is to ensure records are not lost in the event of memory loss on an electronic monitoring system. Please note, remote monitoring was not the basis of this allowance; remote location storage of records was the basis of this waiver. In response, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. 10 CSR 26-2.040 General Requirements for Release Detection for All In-Use Underground Storage Tank Systems. (1) Owners and operators of underground storage tank (UST) systems that are in[ ]-use must use a method, or combination of methods, [or] of release detection that-

(B) Is installed, calibrated, operated, tested, and maintained in accordance with the manufacturer's instructions, including routine maintenance and service checks for operability or running condition[; and]. If manufacturer's operability test [methods]procedures are not available, the annual operability test may be conducted in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory or a method approved by the department. Operability test reports must, at a minimum, include facility name and address, components tested, model and serial number (if legible), testing date, test method, technician name and affiliation, and a certification of results;

(C) [For existing sites, t]The first operability test is due not later than January 1, 2020 or immediately upon installation if installed after July 1, 2017. Electronic and mechanical release detection equipment must be tested annually for proper operation, in accordance with

subsection (B) of this section. A test of the proper operation must be performed at least annually and, at a minimum and as applicable to the facility, cover the following components and criteria:

1. Automatic tank gauge and other controllers: test alarm; verify system configuration; test battery backup unless records are electronically stored at a remote location; REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.040 General Requirements for Release Detection for All In-Use Underground Storage Tanks

Type of Rulemaking

Amendment













tank facilities


by private entities







III. WORKSHEET In this fiscal note, we are calculating the cost for compliance with 25 new and amended underground storage tank (UST) rules: 10 CSR 26-2.010 through 10 CSR 26-2.052. EPA

determined that the cost to comply with all corresponding federal regulations, which are included in these new and amended state rules, is $715 per facility annually. As of October 31, 2016, Missouri has 3,420 UST facilities with at least one tank. As that number is steadily, but slowly, declining, we believe using this number of facilities as the annual number of facilities as an estimate for the future number of facilities is valid, and perhaps even overestimates the cost. Please note, these costs are all ones that were calculated, estimated and provided by EPA in the Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions to EPA’s Underground Storage Tank Regulations. Any additional costs above and beyond those required by these new EPA rules are reflected in a separate line calculation within this fiscal note. EPA’s calculated costs address owner/operator costs to comply with the new requirements. That does not mean that EPA’s calculations address every cost potentially immediately associated with the new requirements. For example, EPA’s calculations address the cost of “testing” the new spill basin, because that is a new requirement. These calculations do not address the cost to break concrete and replace the spill basin, since regulations already require broken spill basins to be repaired or replaced. As such, no matter how the damage or failing spill basin was discovered, the cost to replace it is already part of the current requirements. The new requirement simply adds another place where non-compliance with the existing rule (spill basin must prevent spills to the environment) might be found and this type of work (e.g. spill basin replacement) would be required. But the work itself is not a new requirement. Furthermore, almost all, if not all, facilities already require regular contractor visits to comply with existing regulations. The cost for these new tests and other requirements may assume that the contractor is already on-site conducting other, previously required tests and/or is already on-site conducting the many new tests or inspections required by this package of rule amendments and additions. State-specific versions of many of the rules provide options lacking in the federal version of the rules. Complying with Missouri’s adoption of the federal rules may often cost less than the corresponding federal requirements. Failure to implement the state versions would lead to higher costs for many sites and many owner/operators (but that “higher” cost is the value provided in the federal calculation used herein.) In the rare instances where Missouri’s amendments are more stringent than the federal rule or have costs beyond the original federal requirements, those costs are provided in this amended fiscal note. IV. ASSUMPTIONS









10 CSR 26-2.040 General Requirements for Release Detection for All In-Use Underground Storage Tanks












tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING




more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey provided a written comment suggesting removal of the terms “new or upgraded” from (1)(A)1. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates the comment and understands the concern. In response, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations.

COMMENT #4: Ms. Eighmey provided a written comment suggesting removal of the terms “new or upgraded” from (1)(A)1. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates the comment and understands the concern. In response, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #5: Ms. Eighmey provided a written comment suggesting language changes to (1)(A)5, specifically suggesting removal or alternative language and noting a typo. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The department appreciates the comment and understands the concern. In response, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #6: Ms. Eighmey provided a written comment suggesting (1)(A)4 is unnecessary and should be deleted. She asserts that this language sets forth performance standards that need only be included in 10 CSR 26-2.043. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: This rule sets forth what methods can be used and when. As such, this appears to be the appropriate place for this specific language as it details when this method is no longer approved for use. This language does not explain how groundwater monitoring is conducted, but simply defines when it is or is not allowed. As such, no change is made in response to this comment. COMMENT #7: Ms. Eighmey provided a written comment suggesting (1)(A)6. [sic] is unnecessary and should be deleted. She asserts that this rule applies to all systems in-use, regardless of when they were installed. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Again, this rule sets forth what tank monitoring methods can or must be used and when. As such, this is the appropriate place for this specific language as it details that a specific method is required for tank systems installed after July 1, 2017. To clarify, this rule makes new tanks subject to a very specific release detection method, specifically 10 CSR 26-2.043 subsection (1)(H), which is interstitial monitoring. This language does not explain how interstitial monitoring is conducted, but simply defines when it is or is not required. As such, the department believes that this is the most appropriate location for this language. As such, no change is made in response to this comment.

COMMENT #8: Ms. Eighmey provided a written comment suggesting (1)(B)1.C. is unnecessary and should be deleted. She asserts that this rule applies to all systems in-use, regardless of when they were installed. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: Again, this rule sets forth what piping monitoring methods can or must be used and when. As such, this seems to be the appropriate place for this specific language as it details that a specific method is required for tank systems installed after July 1, 2017. To clarify, this rule makes new piping subject to a very specific release detection method, specifically 10 CSR 26-2.043 subsection (1)(H), which is interstitial monitoring. This language does not explain how interstitial monitoring is conducted, but simply defines when it is or is not required. As such, the department believes that this is the most appropriate location for this language. As such, no change is made in response to this comment. COMMENT #9: Ms. Eighmey provided a written comment suggesting (1)(B)4. is unnecessary and should be deleted. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: This rule sets forth what piping monitoring methods can be used and when. As such, this seems to be the appropriate place for this specific language as it details what methods are allowed for airport hydrant fuel distribution or field-constructed tank system piping and, if appropriate, any limitations on their use based on installation date. This language does not explain how those methods are conducted, but simply defines when and what is or is not allowed. As such, the department believes that this is the most appropriate location for this language. As such, no change is made in response to this comment. COMMENT #10: Ms. Eighmey provided a written comment on rule 10 CSR 26-2.044(1)(C)2 and 3 suggesting the references to groundwater monitoring and vapor monitoring sunset dates are redundant and does not need to be included in 10 CSR 26-2.044. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: This language is included in 10 CSR 26-2.041, but only in the subsection that pertains to tank monitoring, subsection (1)(A). When writing these rules, it was awkward to put this same language into the piping monitoring options within 10 CSR 26-2.041 because there are multiple piping types covered in 4 different paragraphs. In response to parts of this comment, the department notes that 10 CSR 26-2.041 is the appropriate rule to note when and where methods are allowed. As such, the text in 10 CSR 26-2.044 that establishes the sunset dates for groundwater and vapor monitoring would be better suited for 10 CSR 26-2.041, not 10 CSR 26-2.044. As such, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #11: Mr. Bob Wright, Wright’s Station and Garage, submitted a comment on the language that would sunset groundwater monitoring as a release detection method. He requested the department withdraw this requirement or “grandfather” in his station. The department also

had extensive verbal discussions with Mr. Wright to fully understand the concerns raised in his comment. RESPONSE: Mr. Wright indicated that having to change methods would be costly and a procedural change- something new to learn. EPA’s new federal rule includes significant changes to the groundwater monitoring method. In EPA’s version, sites would have to be able to provide extensive documentation of well installation, proof wells are installed properly (well logs) and in accordance with their guidance, the original site assessment documenting background levels prior to beginning the method, and more. Unfortunately, the department’s review of sites using groundwater monitoring did not find any site in Missouri that likely meet all of these federal requirements. If a site cannot document that they meet all of the federal requirements, under the new EPA regulations, a new well plan would be needed, likely new wells installed that can document proper installation, groundwater levels at the site over the year, and all of this must be signed by a registered geologist or a professional engineer, also an added cost. Furthermore, a new background site assessment would be needed. If contamination is found during that assessment, the finding of contamination but be reported as a suspected release, requiring action, and it is possible the method will not be allowed until the site has been adequately remediated. So, while the rules appear to be different, in application in Missouri, it appears that the effect in reality at the sites will be the same: the least costly and most practical option will be a change in methods. After discussing this with Mr. Wright, he said he appreciated the explanation and had not understood the two options- state or federal regulations. The department also explained that the timeline to comply with EPA’s version was shorter. Since the state is establishing a “sunset date,” EPA allowed the department to give an extended time for compliance with this version, as it appears, in writing if not in actual application, more stringent than the EPA requirement. Mr. Wright said that it sounds like he would be switching methods either way and he much preferred the longer timeframe the state option allows. As such, no change is made in response to this comment. COMMENT #12: Mr. Landreth submitted comments on behalf of the STL Fuel Company LLC, which operates the fuel system at Lambert-St. Louis International Airport. Mr. Landreth’s comment is on 10 CSR 26-2.041(1)(B)4.A. and indicates that the open reference back to subsection B is wrong “as for airport hydrant fuel distribution systems [sic] it is the annual or biennial leak testing for pipelines.” RESPONSE: 10 CSR 26-2.041(1)(B)4 outlines the options for compliance for airport hydrant fuel distribution system and field-constructed tank system piping. It allows these piping systems to be monitored in accordance with the standard piping monitoring options or the special piping monitoring options in 10 CSR 26-2.047. 10 CSR 26-2.047 outlines the special options for annual and biennial leak testing on piping. As such, the department does think both options are clearly available under this rule. As such, no change is proposed in response to this comment.

(1) Owners and operators of petroleum underground storage tanks (UST) systems that are in[ ]-use must provide release detection for tanks and piping as follows: (A) Tanks. Tanks must be monitored at least every thirty (30) days for releases using one (1) of the methods listed in 10 CSR 26- 2.043(1)(B)-(I), except that-

1. UST systems that meet [new or upgraded] standards in 10 CSR 26-2.020 or 10 CSR 26-2.021 and the monthly inventory control requirements in 10 CSR 26-2.043(1)(A) may use tank tightness testing (10 CSR 26-2.043(1)(D)) at least every five (5) years until December 22, 1998, or until ten (10) years after the tank is installed or upgraded under 10 CSR 26-2.021(3), whichever is later;

5. Vapor monitoring (10 CSR 26-2.043 subsection (l)(F)) [will no longer be valid to monitor for releases ]may not be used after July 1, 2020, as a release detection method [if]unless it is used with an added tracer chemical and listed by the National Work Group on Leak Detection Evaluations as a tank tightness test; and

(B) Piping. Underground piping that routinely contains regulated substances must be monitored for releases in a manner that meets one (1) of the following requirements:

5. Except that – A. Groundwater monitoring (10 CSR 26-2.043 subsection (l)(G)) will no longer

be valid to monitor for releases after July 1, 2020; and B. Vapor monitoring (10 CSR 26-2.043 subsection (l)(F)) may not be used after

July 1, 2020, as a release detection method unless it is used with an added tracer chemical and listed by the National Work Group on Leak Detection Evaluations as a tightness test. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.041 Requirements for Petroleum Underground Storage Tank Systems

Type of Rulemaking

Amendment













tank facilities


by private entities

















10 CSR 26-2.041 Requirements for Petroleum Underground Storage Tank Systems












tank facilities


private entities





___



$195,624 annually














documentation to review as part of the current records review process. With this part of an existing process, and with the reports for these new requirements expected to be relatively simple and short, the department anticipates no more than an additional three (3) hours per month to review this documentation. These new federal requirements do not change the actual inspection in the field. Furthermore, the one facility that would require additional inspections and time is the airport hydrant fuel distribution system that will no longer be deferred in Missouri. The facility, though, has stated their intention to close the USTs prior to the first inspection being warranted. As such, the department did not include inspections of this facility in this cost estimate. The cost for three (3) hours per month of additional work, for the purposes of this fiscal note, is based on using an Environmental Specialist IV to conduct the review. Please note, many reviews are conducted by Environmental Specialists I, II or IIIs, and as such, using the Environmental Specialist IV costs should provide the highest estimated cost. The cost is based on an annual salary of $49,116, with 2080 hours per year. This annual cost equates to approximately $23.61 per hour. To calculate the full cost, though, the department must also include the cost of the fringe (average 47%) and indirect (average 29.76%) costs of the employee to the state, which comes to $45.04 per hour. As such, the cost for three (3) additional hours per month is $135.12, which is $1621.44 annually. PSTIF indicated that implementing all of the new federal regulations would require updates to their software program, the UST Operator Training program and edits and printing of updated, new forms. PSTIF provided an expected one time cost for these changes at approximately $102,000: ~$75,000 for our underwriting software, $20,000 to modify the UST Operator Training courses, and $6-8,000 to reprint applications and accompanying informational materials. In addition, PSTIF staff review compliances records as well. The new federal rules include a number of new testing, inspection and monitoring requirements, with associated new recordkeeping requirements. The department estimated that the additional record review for department staff would be an additional 3 hours per month, but the department only reviews records every three (3) years, not annually like PSTIF, and only for approximately 22% of the in-use facilities. As such, we assumed that their increase would equivalent to three times as many reviews (they review every site annually- we review approximately 1/3 of the sites each year) and then adjusted that to increase the value to 78% of all sites, which gives us a monthly increase of 21.27 hours. According to the current contract for the underwriting services PSTIF uses, the hourly special project technical personnel services cost is $72.50. As this was the only hourly cost related to this matter, we are using that as the basis for the final calculation. An additional 21.27 hours x $72.50 equals $1,542.08/monthly or $18,504.90/annually. This fiscal assessment did not include additional costs for filing, records retention, receipt of the mail, or other costs for processing this additional documentation, because it is assumed that it will be submitted with other documentation already required during the records review process, which is already a currently implemented process. IV. ASSUMPTIONS

1. As of October 31, 2016, the number of UST facilities with at least one tank not yet permanently closed is 3,420 facilities. The department assumes that this number will

continue to decrease slowly, as it has done for many years. For the “annual” cost calculation, though, we assumed a steady number of facilities, which should be a conservative estimate.








ORDER OF RULEMAKING




more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to




10 CSR 26-2.042 Requirements for Hazardous Substance Underground Storage Tank Systems

Type of Rulemaking

Amendment













tank facilities


by private entities

















10 CSR 26-2.042 Requirements for Hazardous Substance Underground Storage Tank Systems












tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING




more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey provided a written comment suggesting removal of the term “daily data” as it is not in the federal rule. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: This language, concerning the specific requirements for statistical inventory reconciliation, was created in the last amendment of the rule in 2011. Ms. Eighmey has noted a change, though, from the term supporting data to daily data. The department thought the term daily data was trying to provide more specific language

to enhance clarity to confirm that each’s day’s supporting data in that list is required. The department appreciates the comment and will return to using the term originally in the rule. This data has been valuable in assessing the size of a release and confirming operational compliance with the statistical inventory reconciliation. In response to the first part of this comment, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #4: Ms. Eighmey provided a written comment indicating that the language in paragraph (1)(E)2 is confusing and offered alternative text. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: The first part of the language confusion that Ms. Eighmey noted was the term “system.” The department understands that confusion and will amend the language to state “automatic tank gauge system.” The next suggested language, though, is ambiguous as it indicates a test must meet… continuous in-tank leak detection operating on an uninterrupted basis… The ambiguity is that EPA’s federal language specifically defines that a test must be performed under certain operating conditions. Continuous monitoring is an operating condition, and is more than just criteria to be met. As such, the department has made changes in response to the first part of this comment in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #5: Ms. Eighmey provided a written comment noting that, in the interstitial monitoring subsection (H), there is language involving piping monitoring and this rule only pertains to tank monitoring. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. COMMENT #6: Ms. Eighmey provided a written comment noting the use of the term UST systems in (1)(H)2 and 3 and suggested changing it to tank only as this rule only pertains to tank monitoring. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE TO COMMENTS #5 AND #6: Ms. Eighmey is correct. This specific rule defines methods of monitoring for tanks and piping language is included in the proposed language. Unfortunately, the piping release detection rule specifically references some of the tank monitoring rules for details on how to comply with the method. Copying the language in its entirety for each of these methods into the piping release detection rule would create a long rule, with most of the language exactly the same. The piping release detection method specifically references this specific tank interstitial monitoring rule for details on how to conduct interstitial monitoring for piping. As there was only a short part that needed to be added for the piping, it seemed appropriate to add that language herein rather than copy all of the relevant tank release detection methods into the piping release detection rule. This cross-reference between the tank and piping release detection rules has been in place since EPA’s first UST regulations. As such, no change is made in response to this comment.

COMMENT #7: Ms. Eighmey provided a written comment noting that the word “and” should be deleted and a period inserted at the end of (1)(H)3. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: The Secretary of State only prints the subsections that have changes. The rule still contains a subsection (I); therefore, the “;and” is the appropriate punctuation as the list continues on and ends with subsection (I). As such, no change is made in response to this comment. COMMENT #8: Mr. Bob Wright, Wright’s Station and Garage, submitted a comment on the language that would sunset groundwater monitoring as a release detection method. He requested the department withdraw this requirement or “grandfather” in his station. The department also had extensive verbal discussions with Mr. Wright to fully understand the concerns he raised in his comment. RESPONSE: Mr. Wright indicated that having to change methods would be costly and a procedural change- something new to learn. EPA’s new federal rule includes significant changes to the groundwater monitoring method. In EPA’s version, sites would have to be able to provide extensive documentation of well installation, proof wells are installed properly (well logs) and in accordance with their guidance, the original site assessment documenting background levels prior to beginning the method, and more. Unfortunately, the department’s review of sites using groundwater monitoring did not find any site in Missouri that likely meet all of these federal requirements. If a site cannot document that they meet all of the federal requirements, under the new EPA regulations, a new well plan would be needed, likely new wells installed that can document proper installation, groundwater levels at the site over the year, and all of this must be signed by a registered geologist or a professional engineer, also an added cost. Furthermore, a new background site assessment would be needed. If contamination is found during that assessment, the finding of contamination but be reported as a suspected release, requiring action; and it is possible the method will not be allowed until the site has been adequately remediated. So, while the rules appear to be different, in application in Missouri, it appears that the effect in reality at the sites will be the same: the least costly and most practical option will be a change in methods. After discussing this with Mr. Wright, he said he appreciated the explanation and had not understood the two options- state or federal regulations. The department also explained that the timeline to comply with EPA’s version was shorter. Since the state is establishing a “sunset date,” EPA allowed the department to give an extended time for compliance with this version, as it appears, in writing if not in actual application, more stringent than the EPA requirement. Mr. Wright said that it sounds like he would be switching methods either way; and, he much preferred the longer timeframe the state option allows. As such, no change is made in response to this comment. Mr. Bob Wright, Wright’s Station and Garage, submitted a comment on the language that would sunset groundwater monitoring as a release detection method. He requested the department withdraw this requirement or “grandfather” in his station. The department also had extensive verbal discussions with Mr. Wright to fully understand the concerns he raised in his comment. (1) Methods of release detection for underground storage tanks (USTs) used to meet the requirements in 10 CSR 26-2.041 must be conducted as follows:

(B) Statistical Inventory Reconciliation (SIR), which is a statistical inventory analysis method that tests for the loss of a regulated substance. SIR must meet the following requirements: 7. The SIR analysis report must include the [daily] supporting data, inventory measurements of the regulated substance and water, delivery data, and analysis or reporting date;

(E) Automatic Tank Gauging. Equipment for automatic tank gauging that tests for the loss of regulated substance and conducts inventory control must meet the following requirements:

2. The test must be performed with the automatic tank gauging system operating in one of the following modes:

REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.043 Methods of Release Detection for Tanks

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.043 Methods of Release Detection for Tanks

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING




more flexible in our regulations, upon approval from EPA. This flexibility though is limited by the federal SPA regulations and is contingent upon EPA approval. To understand this “flexibility” to which Ms. Eighmey refers, one must understand Missouri’s current SPA standing and our compliance with EPA grant requirements. EPA questioned Missouri’s compliance with our grant guidelines and withheld part of our funding, culminating in a compliance plan which required the department to implement the secondary containment, or double-walled, requirement no later than July 1, 2017. Not only is the department under a compliance plan to enact these requirements, our continuing SPA is contingent upon our enactment of these secondary containment requirements, as well as all of the other new federal regulations. Prior to formally proposing these rule changes and additions, the department presented these draft regulations to EPA to review and confirm that they would accept these regulations as satisfying our SPA requirements. EPA reviewed our regulations and, as drafted, agreed that these draft regulations would meet our SPA requirements. Should the department fail to implement the regulations, or should we alter the regulations from the approved version, EPA could not only rescind approval, but also withdraw our SPA and/or withhold federal funding. If Missouri does not have SPA, the federal regulations would become effective as federally promulgated (including earlier or even ‘retroactive’ compliance dates). In the area of equipment testing, though, the department has already asked EPA (both headquarters and Region 7) to allow some flexibility in these rules. That request was denied. Should we not establish the regulatory authority included in the federal regulations, our rules would be less stringent than EPA’s and would not be approved. Please note, where we can provide flexibility in the implementation of these rules, we will do so. But, per EPA, the rules must include the federal rule language, as specifically noted in response to our request for flexibility and alternative language. More time or postponing the regulation would not change EPA’s answer on either the allowable rule languages or the timeline for compliance approved in Missouri’s proposed regulation. In short, postponement would do nothing except potentially compromise EPA’s assessment of our compliance with the current compliance plan for Missouri’s SPA and federal funding. It is important to note, though, that most of the equipment testing requirements are not due until January 1, 2020, for existing sites. Meaning, that there is an extensive period of time to review testing options, implementation policies and address concerns prior to actual implementation. As discussed, while we must retain the regulation language and authority, we will have time to review implementation procedures and concerns. As such, no changes were made in response to this comment. COMMENT #3: Ms. Eighmey provided a written comment suggesting the heading for subsection (1)(C) was inappropriate as this is the piping release detection rule. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: This subsection (1)(C) is entitled “Applicable Tank Methods” because it describes which of the tank methods, described in detail in 10 CSR 26-2.043, may be applicable for use in monitoring piping. This section specifically ties together release detection methods that may

cover all of a UST system (e.g statistical inventory reconciliation) or methods that can cover either a tank or piping system (e.g. interstitial monitoring). So as not to have to reprint all of that redundant language twice, the piping release detection rule simply details which methods, listed under the tank monitoring rule, can actually be used on piping as well. As such, the heading “Applicable Tank Methods,” originally used in EPA’s original UST rule, seems to still be appropriate. No change is made in response to this comment. COMMENT #4: Ms. Eighmey provided a written comment suggesting a change in the text associated with the alternative piping release detection options for airport hydrant fuel distribution tank systems and field-constructed tank systems. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter noted above. RESPONSE AND EXPLANATION OF CHANGE: Ms. Eighmey has pointed out a typo in the regulation language. The rule is supposed to apply to piping systems associated with airport hydrant systems or piping associated with field-constructed tanks, where the tank is larger than 50,000 gallons. We appreciate this catch, as the language in the proposed rule does not currently meet the language in EPA’s rule. The proposed language is not exactly in accordance with EPA’s proposal, but is closer and draws attention to the problem. As such, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #5: Ms. Eighmey provided a written comment on this rule, 10 CSR 26-2.044(1)(C)2 and 3, suggesting the references to groundwater monitoring and vapor monitoring sunset dates is redundant and does not need to be included here. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: This language is included in 10 CSR 26-2.041, but only in the subsection that pertains to tank monitoring, subsection (1)(A). When writing these rules, it was awkward to put this same language into the piping monitoring options within 10 CSR 26-2.041 because there are multiple piping types covered in 4 different paragraphs. In response to this comment, the department notes that 10 CSR 26-2.041 seems to be the appropriate rule to note when and where methods are allowed. As such, the text in 10 CSR 26-2.044 that establishes the sunset dates for groundwater and vapor monitoring would be better suited for 10 CSR 26-2.041, not 10 CSR 26-2.044. As such, the department has made changes in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. COMMENT #6: Mr. Bob Wright, Wright’s Station and Garage, submitted a comment on the language that would sunset groundwater monitoring as a release detection method. He requested the department withdraw this requirement or “grandfather” in his station. The department also had extensive verbal discussions with Mr. Wright to fully understand the concerns raised in his comment. RESPONSE: Mr. Wright indicated that having to change methods would be costly and a procedural change- something new to learn. EPA’s new federal rule includes significant changes to the groundwater monitoring method. In EPA’s version, sites would have to be able to provide

extensive documentation of well installation, proof wells are installed properly (well logs) and in accordance with their guidance, the original site assessment documenting background levels prior to beginning the method, and more. Unfortunately, the department’s review of sites using groundwater monitoring did not find any site in Missouri that likely meet all of these federal requirements. If a site cannot document that they meet all of the federal requirements, under the new EPA regulations, a new well plan would be needed, likely new wells installed that can document proper installation, groundwater levels at the site over the year, and all of this must be signed by a registered geologist or a professional engineer, also an added cost. Furthermore, a new background site assessment would be needed. If contamination is found during that assessment, the finding of contamination but be reported as a suspected release, requiring action; and it is possible the method will not be allowed until the site has been adequately remediated. So, while the rules appear to be different, in application in Missouri, it appears that the effect in reality at the sites will be the same: the least costly and most practical option will be a change in methods. After discussing this with Mr. Wright, he said he appreciated the explanation and had not understood the two options- state or federal regulations. The department also explained that the timeline to comply with EPA’s version was shorter. Since the state is establishing a “sunset date,” EPA allowed the department to give an extended time for compliance with this version, as it appears, in writing if not in actual application, more stringent than the EPA requirement. Mr. Wright said that it sounds like he would be switching methods either way; and, he much preferred the longer timeframe the state option allows. As such, no change is made in response to this comment. (1) Each method of release detection for piping used to meet the requirements of release detection for underground storage tanks (USTs) in 10 CSR 26-2.041 must be conducted in the following manner:

(C) Applicable Tank Methods. Any of the methods in 10 CSR 26- 2.043(1)(B) and (F)-(I) may be used if they are designed to detect a release from any portion of the underground piping that routinely contains regulated substances[; and} except-

1. Owners and operators of piping [greater than fifty thousand (50,000) gallons] associated with field-constructed tanks greater than fifty thousand (50,000) gallons or airport hydrant fuel distribution system tanks may comply with 10 CSR 26-2.074 in lieu of the methods of piping leak detection in this rule[;]. [2. Groundwater monitoring (10 CSR 26-2.043 subsection (l)(G)) can no longer be used after July 1, 2020; and 3. Vapor monitoring (10 CSR 26-2.043 subsection (l)(F)) can no longer be used after July 1, 2020, unless with an added tracer chemical and listed by the National Work Group on Leak Detection Evaluations as a tightness test; and]

REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to




10 CSR 26-2.044 Methods of Release Detection for Piping

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.044 Methods of Release Detection for Piping

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; and 319.137 RSMo, the commission hereby adopts a rule as follows:

10 CSR 26-2.046 is adopted. A notice of proposed rulemaking containing the text of the proposed rule was published in the Missouri Register on September 15, 2016 (41 MoReg 1172), but there was a typo in the rule hearing and comment period dates provided in the announcement. As such, the typo was corrected and the rule was reprinted in the Missouri Register on October 3, 2016 (41 Mo Reg 1308). No changes were made to the text of this rule, but revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed new rule becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal



RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on a broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.046 Alternative Methods of Release Detection for Field-Constructed Tanks

Type of Rulemaking

New Rule













tank facilities


by private entities

















10 CSR 26-2.046 Alternative Methods of Release Detection for Field-Constructed Tanks












tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; and 319.137 RSMo, the commission hereby adopts a rule as follows:

10 CSR 26-2.047 is adopted. A notice of proposed rulemaking containing the text of the proposed rule was published in the Missouri Register on September 15, 2016 (41 MoReg 1173), but there was a typo in the rule hearing and comment period dates provided in the announcement. As such, the typo was corrected and the rule was reprinted in the Missouri Register on October 3, 2016 (41 Mo Reg 1309). Those sections with changes are reprinted here and revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal



RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.046 Alternative Methods of Release Detection for Bulk Underground Piping

Type of Rulemaking

New Rule













tank facilities


by private entities

















10 CSR 26-2.046 Alternative Methods of Release Detection for Bulk Underground Piping












tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING


10 CSR 26-2.048 is adopted. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on September 15, 2016 (41 MoReg 1172). No changes were made to the text of this rule, but revised public entity and private entity cost statements are reprinted below, which provide information on the revised fiscal notes that are included with the Order of Rulemaking. This proposed amendment becomes effective thirty (30) days after publication in the Code of State Regulations (CSR). SUMMARY OF COMMENTS: A public hearing was held October 20, 2016, and the public comment period ended October 27, 2016. At the public hearing the Department of Natural Resources testified that the twenty-three amendments proposed to Title 10, Division 26 of the Code of State Regulations would make the changes to Missouri underground storage tank (UST) regulations, which would update Missouri’s rules to incorporate the federal UST regulations that were published in July 2015 and became effective October 13, 2015. These rule changes also would make additional changes to the Missouri regulations that were determined to be needed at this time, typically associated with the new federal requirements. Ms. Carol Eighmey, Executive Director of the Missouri Petroleum Storage Tank Insurance Fund (PSTIF), testified at the public hearing and submitted written comments. In addition to Ms. Eighmey’s comments, the department received written comments on the proposed amendments and additions from Mr. Ron Leone, Executive Director of the Missouri Petroleum Marketers and Convenience Store Association (MPCA), Mr. Donnie Greenwalt, on behalf of Wallis Companies, Mr. Bob Wright, owner of Wright’s Station and Garage, and Mr. Lloyd Landreth, representing the St. Louis Fuel Company LLC (affiliated with Lambert-St. Louis International Airport). The department received the following testimony or comments on the changes proposed to this rule. All comments relating to this rule are described below, as well as any change made to the text of the proposed rule in response to the testimony or comment. COMMENT #1: Ms. Eighmey testified and stated in her written comments (PSTIF comment #4 that “no fiscal notes were published for most of the rules;” and references the statutory requirement that a fiscal assessment be performed on any new rules. She also noted that the Petroleum Storage Tank Insurance Fund’s costs were not published as part of the fiscal assessment. Similar comments were also submitted by Mr. Leone, Mr. Greenwalt, and Mr. Landreth, commenters, noted above.

RESPONSE AND EXPLANATION OF CHANGE: The comment specifically refers to the fiscal assessment of the new federal requirements. Please note, should Missouri fail to promulgate these proposed rules, the Environmental Protection Agency (EPA) would withdraw our State Program Approval (SPA). With SPA in place, EPA allows states to implement state rules in lieu of the federal rules. In other words, Missouri gets a ‘pass’ on being subject to the EPA rules. It is key to note, though, that failure to maintain SPA would rescind that ‘pass’ and regulated facilities would be subject to the EPA rules as written, with compliance dates as written. They do not consider this to be retroactive application of the rules, because they are subject to these federal rules upon promulgation. They are not immediately implemented or enforced, though, as EPA allowed a grace period to implement the rules or equitable language. Regardless, a federal fiscal assessment was conducted on the cost of rule implementation, which therefore includes costs to implement the rule in Missouri. The Assessment of The Potential Costs, Benefits, And Other Impacts of the Final Revisions To EPA’s Underground Storage Tank Regulations was published in April 2015. Please note, EPA’s rule was published shortly thereafter, and neither the rule nor the associated April 2015 fiscal assessment was challenged. This assessment includes detailed cost for the new equipment testing requirements, newly-regulated/ previously deferred tank systems, and state costs as well. In response to this comment and after discussion of the statutory requirements for the preparation of fiscal notes in Chapter 536 of the Revised Statutes of Missouri and how those requirements apply to the adoption of federal rules, department staff determined that it was appropriate to prepare a fiscal note for each proposed amendment of the Missouri rules using the cost information gathered in EPA’s fiscal assessment. That assessment comes up with an annual cost of $715 per facility to comply with all of the new and revised requirements in the federal rule published on July 15, 2015. Department staff used the per facility cost to determine an estimated annual cost for all Missouri UST facilities affected by the EPA rule, represented as a percentage of the total number of affected facilities nationwide. The fiscal assessment did not break those costs down in a way that makes it possible to prepare a rule-specific fiscal note for each rule and therefore the fiscal note for each rule is only an estimate of the total cost of all of the requirements in the federal rule, rather than an estimate of the specific costs that could be attributed to each Missouri rule. The department prepared a revised fiscal note for each rule that reflects the overall compliance costs and the revised fiscal note is included with this Order of Rulemaking. COMMENT #2: In her written comments, Ms. Eighmey suggested that this entire rule should be rescinded and combined with 10 CSR 26-2.034. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE: 10 CSR 26-2.034 is a list of records that must be retained, but many of the items on the list reference another rule, wherein the detailed recordkeeping requirements for that specific rule are found (e.g. the containment sump testing recordkeeping is detailed in 10 CSR 26-2.035 and 10 CSR 26-2.034 simply references the documentation required in 10 CSR 26-2.035.) As such, providing details on a recordkeeping requirement and simply having it referenced in 10 CSR 26-2.034 is consistent with many other rules. There are now seven (7) release detection rules; EPA’s original format and the department’s format for these rules has

been to have the details in a separate rule specific to the release detection rule that covers all seven (7) release detection rules. This rule is referenced in 10 CSR 26-2.034. The format keeps the recordkeeping rules together with the appropriate requirement; for release detection, having separate recordkeeping rule allows for these requirements to not enlarge the other rules and makes them easier to find. As such, no change is made in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.048 Release Detection Record Keeping

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.048 Release Detection Record Keeping

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under section 319.109 RSMo, the commission hereby amends a rule as follows:




RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.050 Reporting of Suspected Releases

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.050 Reporting of Suspected Releases

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually
























ORDER OF RULEMAKING

By the authority vested in the Hazardous Waste Management Commission under sections 319.105; 319.107; 319.109; and 319.137 RSMo, the commission hereby amends a rule as follows:




RESPONSE: This question arose not only in the public meeting held by DNR on July 21, 2016, but was also raised other outreach meetings the department has held or participated in across the state. The answer has been the same, and can be put into a guidance document prior to implementation. While the testing requirement is new (e.g. testing a spill basin or overfill device), finding these devices non-functional or damaged is not new. Responding to broken and leaking spill basins is not new for the department. Broken, damaged or leaking spill basins are typically one of, if not the, most commonly cited serious violation during inspections. These broken, damaged, or leaking spill basins found during inspection would be the same ones, the same types of issues, that a spill basin test would find. In the state fiscal year 2016 inspection cycle, this issue was noted at 83 sites, approximately 10% of the sites inspected. As discussed during the outreach meetings, the department has dealt with this issue for years and does not handle broken spill basins, overfill devices, or even containment sumps, as suspected releases without other compounding, suspected release issues also found. For example, if an inspector finds product in a well (already a suspected release) and the owner notes that they think the product came from the broken spill bucket also noted during the inspection, then, yes, the department would require an appropriate suspected release response at that time. If an inspector finds a leak with product under a dispenser and notes that the containment sump is broken and not ‘containing’ the fuel, then yes, the department might require an appropriate suspected release response. In both of these scenarios, though, the response was tied to the other suspected release finding and was not based on the broken equipment finding alone. The department has not, nor does it intend to, require site assessments, site checks or sampling based on the finding of broken equipment/failed equipment tests alone. As such, no change is proposed in response to this comment. COMMENT #4: Ms. Eighmey provided a written comment suggesting changes to the language in paragraph (1)(A)1. A comment supporting all of Ms. Eighmey’s comments was submitted by Mr. Leone, commenter, noted above. RESPONSE AND EXPLANATION OF CHANGE: Ms. Eighmey’s comment indicated that corrective action was already covered under the site check in subsection (1)(B) and, as such, did not need to be included in the system check language in subsection (1)(A). The department has made changes in response this comment in the text of the Order of Rulemaking. The revised text is reprinted below as it will be published in the Code of State Regulations. (1) Unless corrective action is initiated in accordance with 10 CSR 26-2.070-10 CSR 26-2.083, owners and operators must immediately investigate and confirm all suspected releases of regulated substances requiring reporting under 10 CSR 26-2.050 within seven (7) days or another reasonable time period specified by the department using either the following steps or another procedure approved by the department:

(A) System Test. Owners and operators must conduct tests appropriate for the suspected release, using tightness tests listed by the National Work Group on Leak Detection Evaluations and/or approved by the department, or for containment sumps, a test method included in 10 CSR 26-2.035, to determine whether a leak exists in that portion of the tank system that routinely contains a regulated substance or a breach of the interstitial space has occurred. To obtain copies of equipment listings, contact the National Work Group on Leak Detection Evaluations, www.nwglde.org.

http://www.nwglde.org/

1. If the system test confirms a leak into the interstice or a release, owners and operators must repair, replace, upgrade, or close the underground storage tank (UST) system Owners and operators must [begin]conduct a site check [in accordance]and comply with subsection (l)(B) [and corrective action in accordance with 10 CSR 26- 2.070-10 CSR 26-2.083] if the test results for the system, tank, or delivery piping indicate that a release has occurred. REVISED PUBLIC COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost public entities $215,750.34 annually plus a one-time $102,000 added cost to comply with all 25 rules amended and added in is this rule package (not divided per rule), including the cost incurred by state agencies to implement the requirements of all 25 rules. A revised public entity fiscal note to reflect the overall cost to publicly-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking. REVISED PRIVATE COST: The changes to the federal rule resulted in increased costs for UST facilities in Missouri. The Environmental Protection Agency prepared a fiscal assessment that estimated these costs on a per facility basis nationwide. Based on this fiscal assessment the federal requirements being adopted into Missouri’s rules are expected to cost private entities $2,249,676 total annually to comply with all 25 rules amended and added in is this rule package (not divided per rule). A revised private entity fiscal note to reflect the overall cost to privately-owned Missouri facilities to comply with the federal rules has been filed with the Secretary of State along with this Order of Rulemaking.



10 CSR 26-2.052 Release Investigation and Confirmation Steps

Type of Rulemaking

Amendment













tank facilities


by private entities
















10 CSR 26-2.052 Release Investigation and Confirmation Steps

Type of Rulemaking

Amendment











tank facilities


private entities





___



$195,624 annually























HEARING TRANSCRIPT

10/20

PUBLIC HEARING 10/20/2016

www.midwestlitigation.com Phone: 1.800.280.DEPO(3376) Fax: 314.644.1334MIDWEST LITIGATION SERVICES

Page 1

1 BEFORE THE DEPARTMENT OF NATURAL RESOURCES


2 STATE OF MISSOURI

3

4

5

PUBLIC HEARING

6

October 20, 2016

7 Roaring River Conference Room

1730 East Elm Street

8 Jefferson City, MO 65102

9

10

11

Present on behalf of the Commission:

12 Elizabeth Aull - Chair

Charles Adams - Commissioner(via phone)

13 Mark Jordan - Commissioner(via phone)

Michael Foresman - Commissioner

14 Steve Sturgess - Director

Debra Dobson - Assistant

15

16

17

THE COURT REPORTER:

18 Jenna Petree

MIDWEST LITIGATION SERVICES

19 2511 Broadway Bluffs

Columbia, MO 65201

20 573-449-0561

21

22

23

24

25



Page 2

1 MS. AULL: Hereby call this public hearing to

2 order. A public hearing is not typically a forum for

3 debate of the issue. Rather the purposes of this hearing

4 is to provide the Department of Natural Resources and the

5 public an opportunity to present on the proposed changes to

6 Title 10, Chapter 2 Division 26 of the Code of State

7 Regulations.

8 As the request of the Commission, the

9 Department will first present testimony on the proposed

10 amendments and new rules. Following their testimony, the

11 public will been given the opportunity to comment on the

12 proposed rule-making. A sign-up sheet is provided at the

13 back of the room for anyone in attendance at the hearing.

14 In addition, comment forms for those who wish to make any

15 oral comments. Please fill out a comment form if you wish

16 to be heard. This will aid us in recognizing speakers and

17 calling them to testify. Additionally, we ask anyone who

18 approaches the Commission to testify, to please state their

19 name, if affiliation, for the record and provide a business

20 card, if available, to the court reporter and to the

21 Commission secretary. Written comments will be accepted at

22 this hearing. Please provide them to the Hazardous Waste

23 Program Director, Steve Sturgess. Following the conclusion

24 of the hearing, comments may be submitted by mail to the

25 Director of Hazardous Waste Program, PO Box 176, Jefferson



Page 3

1 City, Missouri, 65102. Comments submitted by mail must be

2 postmarked on or before the end of the public comment

3 period on October 27, 2016; e-mail comments shall be sent

4 to Heather Peters. Her e-mail address is

5 [email protected] and must be received no later

6 than October 27, 2016.

7 Now the Chair calls Heather Peters.

8 MS. PETERS: Thank you. Well, any name is

9 Heather Peters. I'm with the Department of Natural

10 Resources, Hazardous Waste program. I am here today to

11 talk about the proposed rule changes to the underground

12 storage tank rules that we have. There we go. Okay.

13 I will start briefly with some background. In

14 2005 there an Energy Policy Act, which included a lot of

15 environmental changes, but there was a section that covered

16 the underground storage tanks. In 2015, and just to

17 clarify there is a slight typo in the agenda item; it says

18 July of 2016 and it was July of 2015, EPA promulgated the

19 federal rules to implement some new changes to the

20 underground storage tank regulations. That's one of the

21 primary reasons we are doing this rule.

22 The second part of that is, in Missouri we

23 have what is called State Program Approval. What that

24 means is in Missouri, Missouri's rules trump the federal

25 rules. So as long as we have this approval, our rules are



Page 4

1 in effect and not EPA. So what that means is we do have to

2 implement state rules and we have to reapply for our state

3 approval. There is actually a timeline on that where if we

4 don't get our approval in, then theoretically EPA could

5 come in, revoke that approval, and then their rules would

6 be effective here. So most of this rule package is to

7 incorporate federal changes.

8 So the rule package before you today for this

9 hearing is 23 rules. Those are 20 rules that are current

10 rules that we have amended and three rules that we are

11 doing today that are new rules. The first one is about

12 field constructed tanks and airport hydrant fuel

13 distribution system, then some new testing requirements as

14 well. Now to clarify for you, in the Missouri Register

15 that is in your packet today, there are actually two

16 additional rules in that packet. Those are not a part of

17 the hearing today because there was a typo on those two

18 rules in the announcement of this meetings. So those were

19 republished on October 3rd, so we have a new hearing for

20 just those two rules on November 3rd. The comment period

21 for those closes on November 10th. Those two rules

22 specifically pertain to how to monitor for leaks at the

23 airport hydrant symptoms and at the field constructed tank

24 systems. So those are not included.

25 So we will go ahead and get started. If you



Page 5

1 have a Missouri Register available, you will see we page

2 numbers at the top each slide. That will tell you where to

3 find the proposed changes in the Missouri Register. The

4 first rules is the Applicability Rule. The main change

5 you're going to see in the Applicability Rule is that we

6 had some underground storage tanks that in the past were

7 previously deferred. What that meant was if they leaked,

8 we had the authority to require them to clean it up, but we

9 didn't regulate anything up until that point. So that

10 deferral is gone for field constructed tanks is gone for

11 field constructed tanks and airport hydrant systems. They

12 will be fully regulated from insulation all the way through

13 closure and clean up.

14 It does start by outlining briefly the

15 compliance dates for those tanks. Those tanks are going to

16 have to show they are in compliance now. They are either

17 going to have to upgrade to come in compliance or they will

18 have to permanently close by July 1, 2019. If someone is

19 going to install a new one of these systems; after July 1

20 of 2017, that tank at its system, at installation, will

21 have to comply with all the requirements.

22 The next rule is a very brief one. It has a

23 pretty limited application. What is says is that any of

24 the tanks that were deferred, there was an interim

25 prohibition where if you installed a tank that was



Page 6

1 deferred, you had to meet certain requirements. We are not

2 aware of this specific requirement that we are taking out

3 being in use anywhere in Missouri. But what it is said is

4 if you had a steel tank, you could prove that it's in a

5 corrosive environment instead of installing cathodic

6 protection. We don't know of any tanks that are using this

7 specific language.

8 The next rule change you're going to find is

9 the Definitions Rule. This one is going to look like there

10 is a lot of changes in this rule because there is a lot of

11 added language in this one, but it's not very many changes

12 to how we are doing things. The reason for that is in the

13 past, our definitions were found in three different

14 locations: They were found in the statute; they were found

15 in the federal regulations and incorporated by reference;

16 and then we had our state-specific definition. That turned

17 out to be somewhat confusing for folks because they didn't

18 always know where to find the definitions. So what we have

19 done is we have brought in all of those definitions into

20 this rule. We didn't change most of those; we just brought

21 in exactly as they were previously written. There were

22 some minor clarifications for language, clarity; but then

23 there are a couple that I want to point specifically. For

24 example, the cathodic protection tester and a corrosion

25 expert; these are both federal definitions that we brought



Page 7

1 in, but in 2011 Missouri put forth some specific

2 requirements for who can be these person. Who can serve

3 this role. To make sure that there was no ambiguity and it

4 was clear if someone looked these up, we included that 2011

5 rule change language in the definitions as well when we

6 brought in that federal definition because ours is not like

7 the federal rules on this one.

8 Also, we added a rule for the definition of

9 double-walled piping. It's a term that we use, but it's

10 not one that EPA had previously defined. So that is a

11 state-specific rule.

12 The next rule that you're going to find is a

13 first new rule that we are going to discuss. This rule

14 specifically pertains, again, to the airport hydrant fuel

15 distribution system and the field constructed tanks; they

16 were previously deferred. This rule goes into a little bit

17 more detail about the compliance date and what they are

18 required to comply with. Basically they are required to

19 comply with almost all the requirements in an underground

20 storage tank systems that we have today would; they are

21 going to have to meet financial responsibility

22 requirements; they are going to have meet the operator

23 training requirements and all the operating rules. They

24 have to do that, like I said, by July 1 of 2019.

25 There is one rule that they are given a little



Page 8

1 bit more time to comply with. That is monitoring for leaks

2 of these systems. Airport hydrant systems, for example,

3 the one we have in Missouri, has almost 2 million gallons

4 of fuel and it moves thousands of gallons of fuel every

5 day. It's not exactly like an underground storage tank

6 system at a gas station. So they do have a different set

7 of rules to monitor how they can be checked for leaks.

8 They get until July 1 of 2020 to comply with that. Again,

9 they must comply with these dates or they will have to be

10 permanently closed.

11 This rule also discusses, like I said before,

12 if you install a new one of these systems after July 1, it

13 has to be in compliance at installation. Then the last

14 language in there also states that if you have a previously

15 deferred system that was closed before these rights went

16 into effect, that the Department has reason to believe that

17 there is contamination that poses a threat to human health

18 of the environment, but the Department can still ask you

19 for a site assessment, even though they were closed before

20 this date.

21 The next rule is a new installation rule.

22 This is a state-specific regulation. We first promulgated

23 it in 2011. Any new requirement and in any new rule, you

24 are going to find things you wish you had done differently

25 or better. So we have made some changes to this regulation



Page 9

1 as well.

2 The first one is we used to require that they

3 give 30-days notification; we have shortened down to 14.

4 We don't schedule our inspections out that far, so we

5 figured we could give them a little extra time.

6 The next one is that sites that are going to

7 replace more than 50 percent of their piping, or install

8 new piping, would have to provide notification. There are

9 a couple of reasons for that: The new regulations do

10 require replacement of the entire run of piping if you're

11 going to replace more than 50 percent because it has to

12 meet the new double-walled requirement. Because of the new

13 requirements and because of the complexity of these systems

14 and these replacements, we do want to make sure we are

15 there for the installation. Most sites are already

16 notifying us of this as it is now.

17 In addition to some of our previous

18 discussions, I have shown pictures of tanks popping up out

19 of the ground and floating when the water table rises and

20 we have flooding. We can't do much for the existing sites,

21 so we wanted to make sure we prevented that in the future

22 as best we can. So the new requirement does say for new

23 tanks going into the ground, they do have to be tied down.

24 In addition, the industry created a guidance

25 document for how to install a marina system. It's a great



Page 10

1 guidance document and we are proposing to incorporate that

2 in this new installation reg. It would only apply to new

3 systems installed in the future; it would not apply to

4 existing marina sites. These sites are rather complex for

5 two main reasons: their configuration is completely

6 different from an underground storage tank. The tank is

7 higher than the dispensers. Of course if it's a marina,

8 it's an environmentally sensitive area. If it leaks, it's

9 going to hit water pretty quickly.

10 Also one of the things you are going to find

11 in that rule that we changed is the tightness testing

12 method. When we first built that rule, we created some

13 tightness testing requirements. As we started actually

14 implementing it in the field, we found that there may be

15 some other options we should include, so this change

16 reflects those options.

17 Last, but by no means least, there are a

18 number of new federal testing requirements. We are going

19 to go over those in greater detail later. What I will tell

20 you is that EPA rules did require that most of those

21 testing begin right after installation, before the system

22 is brought into service. So what we did is we put those

23 requirements also in the installation rule so it would be

24 easy to find.

25 The next rule is the Performance Standard for



Page 11

1 New Underground Storage Tanks. This is where you're going

2 to see the start of most of the requirements for secondary

3 containment. This is one of the primary reasons we had to

4 implement this new rule. It is to satisfy EPA's

5 requirements that systems be secondarily contained. This

6 is where you will find the bulk of that requirements. It

7 does say you have to have double-walled tanks and

8 double-walled piping systems for any new system installed

9 after July 1, 2017. For clarification, that does not apply

10 to existing sites. So anything that's in the ground today;

11 it's functioning and we don't have any problems, it can say

12 and it's grandfathered in. They do not have to meet a

13 double-walled requirement. It also requires that we have

14 containment sumps. These are large plastic buckets at the

15 end of both the piping or at any single-walled joint. They

16 are under dispensers. They are in areas most likely to

17 have leaks. So these have to be installed and they have to

18 be maintained from this point forward.

19 One of the other pieces of language that is in

20 here is our dispenser replacement clause. EPA required

21 that if you replace a dispenser, you had to install a

22 containment sump underneath it and then it will be subject

23 to the testing requirements we are going to discuss later.

24 We felt the language was a little bit ambiguous and we

25 wanted to clarify that the scenarios in which you would be



Page 12

1 required to install a containment sump. We also tried to

2 make it apply as rarely as possible. So the language for

3 that dispenser replacement is in this rule as well. You'll

4 also find that we have regulation language change that says

5 you cannot have metal piping installed outside of the

6 containment sump. We know that metal piping is a problem.

7 We know that it sits in the ground and rust and corrode,

8 leading to corrosion holes and problems. We don't have

9 anyone in the past number of years that have installed any

10 metal piping systems outside of these containment pumps.

11 Of course after we drafted the language, there was a

12 suggestion; it was a very good catch. The one piece of

13 metal piping we do occasionally have at our sites is a

14 flexible connector. You find it at the very end of piping

15 run. So they wanted to clarify that if they just replace

16 that flexible connector only and they install a new one so

17 long as it's protected from rusting, that they could go

18 ahead and still do that without having to install a

19 containment sump. So that's what that language means.

20 Also EPA required that we ban all float valve

21 replacements. So the compliance there, the start date for

22 that is July 1 of 2017. Now in Missouri, we already said

23 you could not use a ball float valve at a new site. You

24 can't install it, back in our 2011 rules. But what this

25 also clarifies is that if a ball float valve is failing and



Page 13

1 has to be replaced, you cannot replace it with another ball

2 float valve. You have to use a different overflow

3 mechanism. And this is what they use to help prevent

4 overfill into the tank while they are delivering fuel into

5 the underground storage tank from a tanker truck. There is

6 some language in there that ties this rule to our spill and

7 overfill rule. We just want to make sure there is no

8 loophole there. Then of course the industry standards have

9 been updated.

10 The next rule is the upgraded underground

11 storage tank system. This rule applies to tanks that

12 didn't meet certain standards and by 1998, they had to

13 upgrade these to continue to use them. So most of these

14 were steel tanks and/or steal piping and they had to up

15 make sure that it would not fail during the operational

16 life of the tank. EPA proposed changes to the interior

17 lining option. What they were doing is, in effect, it

18 would start weeding out interior lined tanks with the

19 language that they had in there. When we talked to

20 Missouri owners, they expressed concern with this because

21 their view was if it's still working and still functioning

22 properly, I should be able to get to keep using. We

23 agreed. We put together a packet request that we thought

24 would satisfy EPA. This went on for months talking to EPA

25 about what would be acceptable where the owners can



Page 14

1 demonstrate that their interior lined system is function

2 properly. Of course they had to do a little bit more now

3 than they did in the past to satisfy EPA.

4 The first thing we did is there is a new

5 technology out there for interior lining. You can make a

6 single wall interior lining, double walled, or a double

7 walled one that is actually strong enough to stand entirely

8 on its own. We included a reference to that technology in

9 our rules. In addition, if you're going to do an

10 inspection of your interior lining, it now as to be under

11 this proposed language, done by a certified technician.

12 Everything else in a world has to be done by a technician;

13 it seemed appropriate in this one.

14 In addition, the reports of those inspections

15 are going to have to document more in the future. Again,

16 this is part of what we did to satisfy EPA that we were at

17 least as protective of the environment as their rules.

18 Like I said, their rules were trying to eliminate some of

19 these interior lined tanks. The other language you're

20 going to find in here though is with this new technology,

21 there are easier ways to test those linings.

22 So what we need to understand on the interior

23 lining piece is that we have two options: We can do the

24 state option with all of these components; or we can do the

25 federal option. We can cut and paste pieces of this rule.



Page 15

1 If it's approved by EPA as an alternative to their rule

2 with all of these components in place.

3 Again, the same dispenser replacement language

4 that you will find in the standard for new tanks, also had

5 to be in this rule as well so that it would apply to some

6 of existing facilities.

7 The next rule is the notification requirement.

8 The only main change you're going to see in here is the

9 notification requirement for the previously deferred

10 airport hydrant fuel distribution system and field

11 constructed tanks.

12 This is the spill and overspill rule. This is

13 where we are going to see the start of many of the new

14 testing requirements that EPA promulgated. So the first

15 thing you're going to find in this rule is the new

16 requirement in accordance with EPA to test the spill bucket

17 every three years. There is an option to that if you have

18 a double walled spill bucket, you can choose to monitor the

19 two walled spill bucket, instead of doing that three-year

20 test. Then it gives details of what those testing options

21 are.

22 In Missouri, and this last part is

23 state-specific, in Missouri we have been having issues with

24 some of the spill bucket repairs. These are very difficult

25 to repair depending on how you do to. So what we have seen



Page 16

1 is we had some field repairs where they tried to replace

2 cracks and rubber with caulk and epoxy and other materials

3 that just don't adhere to that rubber material. We knew it

4 was an issue. Our sites know it's an issue. So what we

5 had proposed in here is to eliminate what we call the

6 "bubble gum repairs.". Things that don't last more than

7 about a week or two, sometimes a month. Sooner or last,

8 these typically don't hold. We not want to throw out the

9 baby with the bath water though, so we did say that we were

10 going to keep premanufactured repair kit. So there are ways

11 to repair these without having to dig up the entire thing.

12 There are manufactured kits that can be installed.

13 In addition, if you have a double-walled

14 spill bucket, a spill bucket within another one; you

15 actually -- the manufacturers sell replacement inserts. So

16 you can take the inside out; put a new inside in. Those

17 are allowed as well.

18 Also in this rule is the overfill prevention

19 equipment testing requirements. You are required to have

20 overfill on any tank that is getting a delivery to try to

21 ensure that you can not overfill it during the delivery

22 process. You have to test that equipment every three

23 years -- test or inspect that equipment every three years.

24 This rule outlines the options for that testing for both

25 the spill and overfill new testing requirements. The first



Page 17

1 test is due by January 1 of 2020. So in other words, they

2 need to do it in 2019. There is also language that if you

3 take a tank out of service, you don't necessarily have to

4 maintain that testing. But before you bring it back into

5 service, you do have to test it before you start using that

6 tank again. Of course with any new testing requirement, we

7 are going to have the associated recordkeeping as well.

8 The next rule is the Corrosion Protection

9 Rule. This one incorporates some changes to the federal

10 language as they wrote it. What EPA said is you had to

11 maintain your corrosion protection on any tank system all

12 the way through the time it was permanently closed.

13 Missouri has slightly different rules on out of use tanks

14 and permanent closures than EPA does. So we made the

15 argument and they agreed that the way our rule is written,

16 they could just maintain their cathodic protection until

17 the point that they get the sampling done. Once they do

18 that, an owner can choose whether or not he wants to spend

19 his money keeping the system in compliance and upgrade, or

20 whether they want to save that money for the permanent

21 closure.

22 We also had language in the rule -- have

23 language in our current rule -- that says if an underground

24 storage tank system the metal components aren't adequately

25 protected, you have to make sure that corrosion hasn't



Page 18

1 occurred while that system is not functioning. What we

2 needed to clarify was there is no way to do that adequately

3 for piping short of digging it up. What we did is we

4 clarified that if you have metal piping, you cannot

5 continue to use it. There is no way to check that metal

6 piping. It does have to be replaced if you have not

7 maintained the protection on that metal piping. Then of

8 course we updated the industry standards on this rule.

9 The next rule is our Compatibility Rule. EPA

10 made changes to this rule. What they said is you have to

11 notify the implementing agency at least 30 days prior to

12 converting a tank from storing a standard fuel to storing

13 an alternative fuel. So in the rule that's greater than 10

14 percent Ethanol, 20 percent bio-diesel. What EPA also said

15 is that you had to provide your compatibility documentation

16 at that time. Missouri didn't use that language. What we

17 said is you have to provide the compatibility to the

18 Department, the documentation, if we request it. For some

19 of these systems, we already know whether they are

20 compatible or not; we don't need them to provide that

21 documentation yet again. It also, of course, provides

22 options for how you can do that.

23 The next rule is the rule that governs repairs

24 to the underground storage tank system. Most of these

25 changes are tied to the new requirements in the new rules.



Page 19

1 Specifically, you're required to maintain a double walled

2 system if you install a new one after July 1 of 2017. So

3 of course we had to include language on how you can repair

4 those.

5 In addition, what EPA's rules say if you test

6 equipment and it fails, clarify that you had to re-test

7 after the repairs to show that it was passing that's what

8 those other regulations are. Then make updates, again,

9 industry standards in that rule.

10 The next rule is the Recordkeeping Rule. As

11 you might imagine with all of these rule changes, all of

12 these new requirements for new systems and all of this

13 testing, there is a recordkeeping component with each one.

14 This rule ties all of those together and incorporates the

15 new changes. It also incorporates the reference to the

16 operator training records. The Petroleum Storage Tank

17 Insurance Fund reviews most of these and they provide that

18 operator training program. But for sites not covered in

19 the fund, we needed to make sure that we close that loop

20 and that we had the authority to ask and make sure that

21 they were keeping those records on file as well.

22 The next rule is the Containment Sump Testing

23 Rule. The is one of the new rules that I mentioned at the

24 beginning; one of the three new rules. The containment

25 sump testing requirement is a federal requirement. It says



Page 20

1 you have to test that new required containment sump every

2 three years; or if you have a double walled sump and you

3 can put some sort of monitor between the two walls, you can

4 do that annually instead. It does -- to be clear -- only

5 apply to the new required containment sumps. So existing

6 containment sumps are not subject to this requirement and

7 optional containment sumps in the future are not subject to

8 this requirement.

9 The next rule is also one of the new rules.

10 It is the rule that governs walk-through inspections. On

11 the walk-through inspections, there is two different types

12 of inspections that are covered in this rule. The first

13 one is the monthly inspection. For that inspection, owners

14 and operators or their representative have to go out and

15 check the spill bucket once a month. They also have to

16 check their release detection requirements once a month.

17 Under the current regulations, they are already supposed to

18 be checking their release detection every month and the

19 spill buckets before every single delivery. So on a

20 frequency much greater than once a month. The annual

21 requirement is that basically everything on the system has

22 to be opened. Every tank top, every dispenser would have

23 to be opened and checked. As it's currently drafted and as

24 we are proposing, it only applies to the new systems that

25 are installed after 2017. So if you have a new required



Page 21

1 containment sump, it only applies to those.

2 The walk-through inspections are first due,

3 again, by January 1 of 2020, which means the first one for

4 some of these needs to be conducted in 2019; probably in

5 conjunction with their annual testing.

6 There is a documentation requirement. We are

7 going to try to come up with the most simple ways that we

8 can to satisfy this requirement and satisfy EPA's

9 requirement, but this may be very simple documentation,

10 especially for that monthly walk-through inspection. Of

11 course it provides the industry standards that you can use

12 to meet these requirements.

13 The next rule is the start of the Release

14 Detection Rules. What you're going to find in the first of

15 the release detection rules is that you now have to do an

16 annual operability test of all of your release detection

17 equipment -- your primary release detection equipment.

18 Currently in Missouri, you're required to test your line

19 lead protector annually. This will apply to the other

20 equipment that you're using to monitor your tanks and your

21 lines. It is, again, first due by January 1, 2020. So it

22 too will need to be conducted in 2019.

23 It also lists the reporting requirements for

24 what that operability test will include. It also has a new

25 requirement on how you have to conduct that operability



Page 22

1 test and what that entails. I want to elaborate on this

2 one just a little bit because it has come up as a question

3 or an issue of concern. What it does is in that rule, and

4 EPA's rule, it outlines exactly what that minimum

5 operability test must include. For automatic tank gauges,

6 they have to pull the probe out of the tank. Then it

7 covers censors and other devices. At the insurance funds

8 advisory committee meeting, they had what if we follow

9 manufacture's requirements rather than EPA's guidelines;

10 would that be satisfactory? We agree. If you're following

11 the manufacturer's requirement that seemed like a

12 reasonable request. So we proposed that to EPA and said if

13 they are following the manufacturer's requirement, would

14 that be sufficient to satisfy you and the answer was no.

15 The answer was unless the manufacturer's procedures cover

16 at a minimum the test requirements in the rule, it cannot

17 be used. As you might imagine, most of the manufacturers

18 are looking at their procedures now and comparing it with

19 EPA rules. So hopefully those will be updated in the

20 future. It would make our rule less stringent than EPA and

21 potentially affect our state program approval application

22 if we didn't follow EPA's language on this.

23 The next rule is the start of the release

24 detection requirements for petroleum underground storage

25 tank systems. The first thing that's in here is it some



Page 23

1 alternatives, again, for those airport hydrant systems and

2 field constructed tanks. They are very unique and have to

3 be monitoring slightly different.

4 One of the other things you're going to see

5 is, as I said, on July 1 on 2017, if you install a new

6 system, it has to be double walled; double walled tanks and

7 double walled piping. What the EPA also said is it has to

8 be monitored between those two walls. Since that's a

9 release detection method, you'll find that change in this

10 rule right here. For any system, they do have to monitor

11 between the two walls as their primary release detection

12 method.

13 The next change is that we have proposed in

14 our rule to sunset groundwater vapor monitoring by July 1,

15 2020. If you'll indulge me here just a little bit, I added

16 some new slides. That's what the presentation is in front

17 of you because we did get some -- we received some formal

18 comments on this. In discussion with folks, it sounds like

19 there is some misinformation and misconceptions about the

20 options here. So we wanted to elaborate on that just a

21 little bit today.

22 So on the groundwater and vapor monitoring;

23 EPA had some language in their rule that changed how you

24 can do groundwater and vapor monitoring. So the state has

25 two options, just like they did on some of these other



Page 24

1 rules; we can either implement the rule as they wrote it,

2 or we can propose a state alternative. We chose option No.

3 2; we proposed a state alternative. We did that because

4 the effect of both rules ends up in the field in the same

5 place, in our opinion. So -- but the state option by

6 sunsetting it, we actually talked EPA in to allowing more

7 time for owners to comply. I'm going to get into this in a

8 little bit more detail. But what EPA said is you must

9 document the system complies with all the federal

10 requirements, or the system will have been upgraded and then

11 certified by a professional engineer or registered

12 geologist. Again, I'm going to go into this in a little

13 bit more detail.

14 So I have an example site for you. This is a

15 real site in Missouri. It actually -- I did not pick some

16 extreme location that is a bad site. This is actually a

17 really great site. They are going to have more

18 documentation on file than almost anyone else. What EPA

19 says to meet their requirements is that you must have

20 installation logs for all of your wells. The sites that

21 are using this, the ground water and vapor monitoring, are

22 typically older, small sites. So the likelihood of them

23 having installation wells from 20, maybe 25 years ago, is

24 probably pretty slim. At this sit, the owner had an

25 installation well log from 1993, which is probably more



Page 25

1 than most of our owners are going to have. But he only had

2 one at the site and unfortunately it was for the one well

3 that he is no longer using at this site.

4 What it also says is if you have a single

5 tank, in a single tank you need two wells to monitor that

6 for groundwater. If you are having more than two or more

7 tanks in the tank pit, you have to have at least three

8 wells to properly monitor for groundwater contamination or

9 evidence of release. The site, for example, has three

10 tanks but they are in two different tank pits; each tank

11 pit only as well. So this site is short by three wells.

12 The water must always be where the slotted section is. I'm

13 going show you a picture of this in just a moment. At this

14 site, we have records going all the way back to 1993,

15 again, that's going to be unusual for most of our sites.

16 So what we found is that the records repeatedly show is not

17 at the screen level. I will show you what I'm talking

18 about in a moment.

19 One of the other pieces is that before you can

20 do groundwater or vapor monitoring, you had to sample your

21 backfill to see if there was already anything in that

22 backfill that can affect the results. You have to have

23 that on file. For this site we don't have that sampling on

24 file.

25 So what I'm talking about here on the left is



Page 26

1 their monitoring well installation log, the one they had

2 from 1993. Again, this is in the new packet that she gave

3 you; it wasn't in the original presentation. So what we

4 have is a monitoring well installation log on the left. So

5 they had it; they have great documentation. What it

6 demonstrates is that we have on the right, is that we a

7 monitoring well. Please excuse my rudimentary art; I did

8 this kind of at the last minute. This is definitely not to

9 scale. So we have on the right is a picture of how this

10 would be installed at the site. So we have the well, the

11 well on the left-hand side. We have our tank in the

12 ground. At some level, we have a water level. We have

13 soil and we have water level. We have slots in that well.

14 The top of the well is required to be sealed because

15 obviously you don't want just rain water or anything on the

16 site to be running into your well. So the top of well is

17 sealed. The site actually has a very short top seal which

18 is okay as long as it works. It's only a foot and a half

19 at the top of the seal. And then a foot and a half down,

20 it starts the slotted section. So 18-inches down we have

21 slotted section, all the way down to the 12-foot mark. So

22 the way it works is if my tank leaks, that product is going

23 to float up; it's going to float on top of the water and

24 it's going to go into that slotted section. So when we

25 pull a sample, we are going to see product floating on top



Page 27

1 of water just like it is in the backfill. The problem we

2 have at this site -- and again, this owner has fantastic

3 records that go all the way back to 1993 or 1994 -- so we

4 what see is at this site, like I said, there is 18-inches

5 of at the top that is sealed. But if you look at where

6 they were checking their water level at their site, the

7 water level is 6-inches down, 7-inches down, 12-inches

8 down, 8.5-inches down. We see this documentation

9 throughout the history of this site. What that

10 unfortunately means is the water level and product level

11 are up above the slotted section. So if there is a leak,

12 we are not going to see it at this site because the water

13 table and the water level is above the slotted section.

14 EPA rules say that your water has to always be in the

15 slotted section every single month; it cannot go high or

16 low. So even at this site where we have some great

17 documentation, more than we are normally going to have on

18 these older sites; even at this site, it doesn't meet the

19 requirement.

20 We knew that was case in Missouri. This is

21 not something that we stringently enforced EPA's

22 regulations on in the past. These were a lot of older

23 sites when the rules started. They didn't have a whole lot

24 to upgrade with, so this was not something that Missouri

25 has been demanding. For a site like this -- and most of



Page 28

1 the other sites, if not all, that are doing groundwater and

2 vapor monitoring -- they would have to upgrade their system

3 to meet EPA's requirements. So for a site like this, they

4 would have to install new wells. I don't even know if they

5 would get to continue using their wells they have because

6 they would have to be recertified as well and a new

7 engineer coming in or registered geologist might not feel

8 comfortable certifying a well that they didn't install and

9 they really have no idea how it was constructed. So you

10 have to install new wells. You're going to have to conduct

11 a site assessment. That requires sampling, which we know

12 is not a small process. In addition, if you find

13 contamination; you can't use this method until the site is

14 cleaned up and you get new background levels. So if we

15 find contamination, you still can't use this method.

16 Then the next piece was, if you find

17 contamination, of course, now you have a suspected release

18 at the site. So now you have to start the cleanup and

19 begin working on the contamination that you found.

20 Last by no means least when it comes to the

21 cost, you have to have a registered geologist or

22 professional engineer sample and certify the entire well

23 system. What we found when we started comparing these

24 prices is that this is probably in the same ballpark as

25 installing a new fancy electronic monitoring system; if not



Page 29

1 higher in some areas depending on how much you need.

2 So what we discussed with our owner is this is

3 what would be required for most of you, if not all of you,

4 to meet the EPA requirements. If we just sunset it, we get

5 to give you more time to comply. So this is the option we

6 went with is we gave them more time to comply because we

7 know our sites are not going to be able to meet all of

8 this.

9 The next rule you're going to find is

10 Hazardous Substance Tank Release Detection Methods. What

11 we said here is hazardous substances are already required

12 and have been required to do interstitial monitoring on

13 their system. You're going to see in a moment that we have

14 some changes to how that has to be done at new sites and we

15 proposed that they would have to do it electronically. We

16 waived that requirement for hazardous substance tanks

17 because there is not always a sensor or electronic device

18 that can monitor the substance that's in that tank.

19 It also clarifies the sump testing requirement

20 and ties together some of these new rules, so that it's

21 clear that they do still apply and how they apply at

22 hazardous substance facilities. These are very rare, but

23 they are very unique when we have them.

24 So the next rule actually gets into how you

25 can monitor your underground storage tanks for leaks, the



Page 30

1 tanks themselves. There was changes in here; most of

2 these -- actually all of these come from EPA. EPA changed

3 statistical inventory reconciliation. It wasn't even in

4 their rule in the past. We added it in our rule for the

5 first time in 2011. They said that if you do it, it has to

6 be an actual assessment, which is usually great because it

7 can't be pass/fail, and the include some other

8 requirements. The biggest change in the Statistical

9 Inventory Reconciliation, or SRI, though was that in

10 Missouri our rule said they had 15 days from the end of the

11 month after they collected all of their data, to get the

12 data shipped off, to have it assessed, and to get it back;

13 EPA said absolutely not. EPA's view was that it had to be

14 done by the 30th day of the month. Well, that's extremely

15 difficult if you're trying to gather 30 days of data, get a

16 report, and get it back to you. Suffice it to say, we

17 weren't overly thrilled with how that had played out and

18 EPA's interpretation of this. So we did work with our

19 regions and they are allowing us to take that language out

20 of the rule, and put in place a policy that would give

21 owners and operators 10 days after the end of the month to

22 do the report. Basically, it's called enforcement

23 discretion. We get to pick that we are not going to do

24 anything to you as long as you do it within the first 10

25 days. That is as much leeway as EPA would give us on this



Page 31

1 rule change. Then on tank gauging, you'll see some

2 clarification language from EPA.

3 On the automatic tank gauging, it got into a

4 little bit more detail about the test modes that these

5 electronic systems can work on and it does include a

6 required monthly check for water in those tank systems.

7 Most of this isn't a change. It probably won't affect what

8 we are doing in the field.

9 Again, as I already discussed, vapor

10 monitoring and ground water monitoring, you're going to see

11 the reference to the sunset date of July 1, 2020. There is

12 one caveat to that; there is a have a vapor monitoring

13 system where you can add a chemical marker and do it and

14 it's much more precise and much more accurate. We are

15 going to change the language to allow that to continue.

16 As I stated, all the new sites are going to

17 have to have interstitial monitoring. So we did want to

18 take a close look at this rule. There is requirements

19 outlined in this rule for that interstitial monitoring.

20 Then one of the things that we proposed in the state is for

21 new sites, they do have to do it electronically. Verifying

22 that you're manually checking your interstitial space is

23 difficult and can sometimes be less than ideal for the tank

24 system itself. It outlines the requirements and outlines

25 the options for doing this method. Again, at the very end



Page 32

1 of the rule, you're going to see a repeat of the

2 alternative monitoring options for airport hydrant systems

3 and field constructed tanks.

4 The next rule applies to leak detection on the

5 piping system. You still have to have the operability

6 testing for lined leak protection; that's not new in

7 Missouri. We do say in here you specifically you have to

8 simulate an appropriate leak. So they have to force a leak

9 in their system when they test it to confirm the system is

10 operating properly. Right now under the current

11 manufacturer's guidelines, this is what they are all

12 supposed to be doing. We drafted this because we

13 understood that one of the manufacturers was trying to come

14 up with a way to do an electronic test of the equipment

15 without actually confirming that it's functioning in the

16 system that's installed. If it's not functioning properly

17 in the system it's installed, it's not doing us any good.

18 How you install it, makes a huge difference.

19 Again, groundwater vapor monitoring we are

20 allowing for piping monitoring as well. So you'll see the

21 reference to the sunset date here. Again, allowances for

22 airport hydrant system and field constructed tanks.

23 The next change you're going to see is the

24 release detection recordkeeping rule. There is not many

25 changes in this rule, other than we are clarifying some of



Page 33

1 the new requirements -- or the recordkeeping for the new

2 requirements, but what we did is we moved it.

3 The next two rules in the package are going to

4 be the airport hydrant and field constructed tank release

5 detection systems. It made sense to put the recordkeeping

6 after all the new requirements. In the package before you,

7 you will find these two rules. They were published in the

8 September register. As I said earlier, there was a typo

9 and we had to republish those in the October register. So

10 those are not covered in today's hearing. They

11 specifically govern release detection for airport hydrant

12 systems in field constructed tanks. Our one site that has

13 expressed an interest in this rule was specifically

14 notified to make sure they were aware of this. So the

15 hearing for this rule will be on November 3rd at 9:30 in

16 the morning.

17 The second to last rule we have is the

18 suspected release requirements. What we have in here is

19 with this new requirement for double-walled systems, we

20 needed to incorporate when we consider a leak or something

21 you have to respond to with a double-walled system.

22 Ideally, if they are working well and if the primary fails

23 and releases products, that secondary wall should be

24 catching it. So we needed to incorporate that in suspected

25 release regulation. In addition, we have language in this



Page 34

1 rule from EPA about alarms and when you have to respond.

2 We did clarify at the state level there has to be a leak

3 alarm; electronic monitors go into alarm for all kinds of

4 reasons: paper being out, modem connection not working

5 right. We don't want every single one of those

6 notifications and they don't need to respond to those in

7 the same way. If it's something that indicates a potential

8 leak, that they do need to look into. Then there was some

9 clarification language in there too.

10 The last rule in our package today is the

11 release investigation requirements. This included, again,

12 this rule ties to the previous one. So when we are

13 investigating a potential leak in a double-walled system,

14 we needed to include that language as well. In addition,

15 we have this great new technology that will be coming out

16 with these double-walled systems and allows new ways for

17 you to test whether that system is tight. So we included

18 references to those as well. Then we made sure that when

19 we use the term "leak" that means our primary system leaked

20 product, but it doesn't necessarily mean it hits the

21 environment. A release is when product actually hits the

22 environment. So we made sure we use the proper language in

23 each spot.

24 So the rule-making schedule from this point

25 forward is on the same page is that today, of course, is



Page 35

1 our public hearing on October 20th. The end of the comment

2 period is a week from today. It is October 27th. Now, for

3 the two rules that were republished and are on a separate

4 schedule; the hearing, again, is November 3rd. The comment

5 period only for those two rules closes November 10th,

6 specifically for the airport hydrant release detection

7 rules. What will happen after that though is we will have

8 time to respond to those comments. All of the rule

9 package, all 25 rules, will be brought back together; and

10 all 25 will be presented back to this Commission on

11 December 15. So while they are on separate tracks right

12 now, they will be brought back together as one package on

13 December 15th. We will present to you what the final rule

14 proposal is. Then of course, as you can see, we have when

15 the orders of rule-making go to JKAR with many

16 administrative rules; and then when they will get filed

17 with the Secretary of State Office. If all goes according

18 to schedule, then those rules will be effective April 30 of

19 2017. With that, if you have anything you feel you need a

20 clarification on or we didn't cover adequately, by all

21 means let me put it on the record and I will be happy to

22 elaborate on it.

23 MR. FORESMAN: Thank you. A lot of work to

24 get thing squared away. Appreciate it.

25 MS. PETERS: Thank you.



Page 36

1 MS. AULL: Do we have anyone else? Is there

2 anyone else that wishes to speak?

3 MS. EIGHMEY: Thank you, Madam Chairman and

4 Commissioners. My name is Carol Eighmey, Executive

5 Director of Petroleum Storage Tank Insurance Fund. I'm

6 here today representing nearly 1,200 owners of underground

7 storage tank systems that we insure. Those systems include

8 about 6,800 separate tanks with piping and dispensers

9 connected. Many of those -- some of those, I'll say,

10 insured tank owners are large businesses, but far the vast

11 majority of them are very small businesses. I have spent

12 some time last week with one of those small business

13 owners, just to give you a sense of who I'm here

14 representing. This fellow actually immigrated to the

15 United States from India 30 years ago. He was a cab driver

16 in New York City for 17 years. Managed to save up enough

17 money that he moved his family to Kansas City and bought a

18 single convenient store, which he has operated for 13

19 years. I have great admiration for him. He supports his

20 wife and two children out of this one small business. It's

21 located in a part of Kansas City that's not easy to operate

22 a business in. It's a low income neighborhood, very

23 difficult neighborhood in terms of their surroundings. The

24 people who live there face a number of challenges. Yet, he

25 is there at that store about 18 hours a day, 7 days a week



Page 37

1 inside his bullet proof cage operating this store, which

2 does provide a gasoline and other important products to the

3 folks in the neighborhood. There is another fellow I

4 talked to fairly frequently down in South Missouri, just

5 west of where Commissioners Frakes and Adams live, over in

6 the hill country. In his neighborhood, in his county,

7 there are very few suppliers of gasoline. He has operated

8 this store for a number of years, he is in his 70s. He

9 doesn't read and write well at all, but has been very

10 successful keeping this little store running in hopes of

11 passing it along to his children. He's very diligent about

12 trying to comply with all the governments rules. So he

13 often calls us and asked for help and advice on that.

14 There is another woman I spoke to recently, a widow, whose

15 husband had always operated the convenient store. He died

16 and she is now trying to learn how to operate that

17 business. She always let the husband do it and so now she

18 is having to learn about all the of the requirements for

19 selling fuel and tobacco products and alcohol products and

20 employment rules and so on. So these are the folks we deal

21 with day in and day out. We talk to them. I have enormous

22 admiration for them. By and large, the vast majority of

23 those folks have done an excellent job, as you have heard

24 Ms. Peters say before, and as I have said before; they have

25 done an excellent job maintaining their fuel storage



Page 38

1 equipment, complying with the rules and regulations,

2 staying insured with us on a regular basis. Consequently,

3 Missouri has an excellent underground storage tank program;

4 one of the best in the country. We see very few leaks

5 occurring.

6 That being said, we are here today to consider

7 a whole bunch of changes to your rules governing the

8 operation of underground tanks. Your job as commissioners

9 is a challenging one because Missouri, like all other 49

10 states, are having to figure out how to implement a whole

11 bunch of new requirements that EPA has produced. Some of

12 which, frankly, probably are not needed in Missouri in

13 terms of enhancing our protection of public health and the

14 environment; but nevertheless, are demanded as you well

15 know by our friends at EPA. I want to acknowledge and

16 express appreciation to Heather Peters for all the work she

17 has done. She is well-known around the country for her

18 expertise in this area. She has been very diligent about

19 communicating with equipment companies, tank owners, and

20 with our staff and has worked long and hard over the last

21 couple of years to try to draft a rules package that will

22 work for Missouri. She has looked for ways to accommodate

23 EPA, while not imposing any additional or extraneous costs

24 on our citizens then absolutely necessary. So I do credit

25 her for that and I want to make it clear that the trust



Page 39

1 fund, the Tank Insurance Trust Fund, our participants,

2 support much of what's in this rule package. There are

3 many, many things in here that we are fully in support of.

4 I won't spend time today obviously commenting on these

5 areas, but I want to make it clear that many of those areas

6 do exist.

7 I will use my time today to point out to you

8 six items where we are asking you as commissioners to think

9 about whether the approach recommended by your staff makes

10 sense and is the right approach, or whether a different

11 approach may in fact be better for Missourians. You don't

12 have to make a decision on the many, many areas where there

13 is consensus or a unanimous opinion. You are obligated to

14 make decisions on the few areas where there are

15 differences. So that's what I will focus on today in my

16 testimony. There are six items I will bring to your

17 attention. There are a few other comments we will provide

18 in writing that relate to grammar, wording, punctuation,

19 clarification things; but are not as substantive as the six

20 items I want to touch on today.

21 So first item relates to the definitions.

22 Ms. Peters explained to you why the definitions rule looks

23 complicated. We think it's good to actually print the

24 definitions of each term in the rule itself, rather than

25 incorporating them be reference. However, in the process



Page 40

1 of doing that, we suggest to you that there are at least

2 two definitions which are then -- which are being changed.

3 Those two definitions are incorporated into the definitions

4 of other terms. So the total effect of these changes is

5 fairly significant and I'm not sure has been fully flushed

6 out in our stakeholder meeting. We specifically oppose the

7 proposed change to the definition of the term "connected

8 piping" and the definition of "underground storage tank."

9 Let me explain why: Those two definitions for 25 years

10 have matched EPA identical definition for those terms. In

11 this rules package, your staff is proposing to eliminate

12 the term "underground." Heretofore for 25 years in

13 Missouri and across the country, underground storage tank

14 has been defined to be all the equipment that's buried in

15 the ground, including equipment that's in sumps that is

16 visible when you take the sump lid off; up to the sheer

17 valve, which is at the base of the dispenser. The

18 definition has not included anything above that sheer

19 valve, which is visible as you and I drive our cars up to

20 the gas pumps. We think this is an important detail

21 because the rule themselves apply to the underground

22 storage tank system. If you redefine that system to

23 include the stuff above the ground, it frankly is

24 impossible, from a technical standpoint, to comply with the

25 rules to that portion of the equipment that's above the



Page 41

1 ground. Furthermore, deleting that word out of your

2 definition creates some other problems with other

3 definitions, such as the definition of dispenser. Right

4 now dispenser is defined as equipment located above ground

5 that dispenses product from the UST system; but. If UST

6 system includes dispenser, then you have essentially a

7 circular definition. So we would ask the Commission to

8 change the proposed rules by reverting to the definitions

9 that have been in place for 25 years, which match EPA. We

10 really have no reason for making this change. I'm not sure

11 whether it was inadvertent or something that wasn't

12 thoroughly thought through or discussed, but we think it

13 creates a serious problem. Along the lines, if it ain't

14 broke; let's not fix it, we know of no problems with the

15 definitions that have been in place for 25 years. So we

16 would urge you to stick with those definitions. I just

17 realized I actually brought a handout to help you follow my

18 remarks, if I may pause a moment.

19 Item 2 that I would bring to your attention

20 relates to two of the Missouri-specific requirements.

21 Again, Ms. Peters mentioned a number of places in the rules

22 where either she has modified the EPA approach or was

23 putting things or suggesting that you put things in the

24 rules that are not required by EPA. We have no problem

25 with most of those, but there are two items that cause us



Page 42

1 some concern. One relates to the new requirement that

2 owners and operators provide notice to the Department

3 before they install any piping. We understand that this is

4 typically happening today. Nearly all of the owners we

5 spoke to in the equipment companies who do this work

6 indicate they are giving notice to the Department and we

7 appreciate that they are doing that and that the Department

8 uses that information as they have resources to do so.

9 They use that information to go out and inspect the piping

10 installation. All of that is good. The problem comes when

11 you make a standard practice into a regulatory requirement.

12 It creates the potential for penalty if an owner fails to

13 do it. We know there are owners who from time to time make

14 piping replacements on short notice or who may forget that

15 this notice is required. We don't see any reasons for

16 those owners to be penalized or be subject to penalty for

17 failure to do so.

18 Similarly, another one of the

19 Missouri-specific requirements that's not required by EPA

20 that's being proposed by your staff relates to the

21 photographs for the lining. Ms. Peters touches on this in

22 her testimony, so let me try to explain our perspective on

23 this.

24 MS. DOBSON: Can we pause for a moment.

25 Carol, can I interrupt you for a moment. I have provided



Page 43

1 the commissioners on the phone with an alternative phone

2 number that will be private, if we can take a moment just

3 to switch over.

4 (A recess was taken.)

5 MS. EIGHMEY: I was discussing the second part

6 of my second comment relating to the lining requirements or

7 the requirements that one must comply with when you line an

8 underground tank. In the late 1990s and early 2000s, there

9 were a lot of underground tank owners who paid a vendor to

10 line their tanks; by line we mean inside, go inside the

11 tank. If it's a metal tank, it has to be sandblasted and

12 the lining applied. Fiberglass tanks have also have

13 certain procedures where linings can be added. Far fewer

14 lining projects are happening today than twenty years ago

15 because most of the underground tanks that are in existence

16 today have already been lined to prevent corrosion. The

17 cost of relining versus replacing those tanks is a decision

18 that a lot of tank owners are looking at and many times

19 just decide to replace the tanks instead of relining them.

20 So there are fewer companies out there today doing tank

21 lining work. Ms. Peters has indicated, I think, that

22 nearly all of the companies who are doing that work in

23 Missouri today do provide their customers, the tank owners,

24 with the kind of report that she's requiring -- wants to

25 require in these rules, including the photograph of the



Page 44

1 lining after it's completed. Now, we recognize that photo

2 documentation is helpful and we have no objection at all to

3 the fact that nearly everybody provides that. Again, the

4 problem comes when you take what is a widespread practice

5 and turn it into a regulatory requirement. I think, again,

6 of the fellow I mentioned to you moments ago who operates

7 this store in a difficult neighborhood in Kansas City and

8 who doesn't have the advantage of the nice office like we

9 have with administrative support staff, desk and chairs,

10 files cabinets, copy machines and such. I don't know where

11 he even keeps his records. But to say to that small

12 business owner if he decides to line a tank, he must now

13 not only be able to produce the records from that lining,

14 but specifically must produce this record, this record, and

15 this record including all of these photographs. He must be

16 able to produce that whenever down the road, a year from

17 now, three years from now, or five years for from now, or

18 whenever. Is a recordkeeping requirement that I guess I

19 would ask you to contemplate, whether it's necessary. The

20 photographs themselves don't prevent leaks. Looking at the

21 photographs a year or two or three after the project was

22 done, doesn't really provide any information that can be

23 used at that point, other than it sometimes helps us in

24 leak investigations. But the purpose of your rules is not

25 leak investigations; the purpose of your rules is to



Page 45

1 prevent leaks. We just really see no justification for

2 imposing this additional recordkeeping requirement on these

3 small business owners.

4 No. 3 I would like to mention to you as really

5 a question. We believe that the impact of the new

6 equipment testing requirements is going to be substantial.

7 We are not certain whether that impact has been fully

8 analyzed. I will touch on that again here in a moment. We

9 would ask you to consider whether some of those

10 requirements may need to be postponed until we can find out

11 a little more about how this is all going to work across

12 the country. Let me explain: These 6,800 existing

13 underground tank systems that we insure include equipment

14 that's been in the ground sometimes for a long time. None

15 of that equipment that's now going to have to be tested was

16 manufactured or designed or installed in such a way

17 anticipating these tests. These equipment tests are all

18 very brand new. Frankly, they didn't exist until just the

19 last three or four years as the industry has begun

20 preparing for this new draft of EPA rules. Industry

21 experts have started developing procedures and protocols

22 for testing these parts and pieces that have never had to

23 be tested before. That's all fine. That's good. Again, I

24 credit Ms. Peters; she shows far more about the details

25 than anybody else I know. Nonetheless, nobody in the



Page 46

1 country has had very much experience with these new testing

2 procedures and protocols. The only folks we know of who

3 have are in California. They have had some similar rules

4 in place for a few years. Their experience indicates that

5 as much as half of the equipment that's in the ground now

6 will fail the first test. We expect some of that equipment

7 will be broken as equipment vendors are trying to remove it

8 for testing. We expect some of that equipment will fail

9 the protocol or the test procedure and will have to be

10 replaced. So we think this feature of the rule package is

11 going to have a major impact on existing businesses that

12 needs to be thoroughly understood as you decide when and

13 how to implement these requirements.

14 Ms. Peters mentioned that our advisory

15 committee did specifically ask for one part of all of those

16 testing requirements to be written in such a way that there

17 would be some flexibility. She talked about the probe that

18 goes down in the tank that measures the fuel level and

19 monitors for leaks. Removing those problems we believe --

20 or I will say a lot of folks believe -- will be quite a

21 challenge and will be very expensive because many of them

22 will be broken or have to be replaced. Some folks think

23 there is a better way to verify that the probes are

24 operating properly. I can't stand here today and tell you

25 that I know for sure whether there is or isn't. Again,



Page 47

1 this is all new. All 50 states in the country are going to

2 be gaining experience with this over the next few years and

3 figuring these things out; as will EPA, as will equipment

4 vendors, as will tank owners. So we would simply suggest

5 to you that you allow some time or some flexibility for

6 some of these requirements, particularly the probe removal

7 requirement, as you do -- as you make your decisions now,

8 so that we don't put something in place in a rule that ends

9 up being more expensive or more difficult, more challenging

10 than it needs to be.

11 I need to digress a moment and just touch on

12 the issue of state program approval because Ms. Peters that

13 in her testimony. We are in agreement that we want

14 Missouri to maintain approval of its state USD program.

15 That approval has been in place for many, many years. We

16 understand that all states who already have approved

17 programs will have to ask EPA again in 2018,'19; sometime

18 in that time frame, hey EPA do you now still approve our

19 program given that there is now EPA rules and here is where

20 we are in our state. Missouri will go through that process

21 we hope. We hope that we have opportunity to participate

22 with the Department in that application process. Until

23 that happens though, in states all across the country, it's

24 really hard to know for sure what EPA's response will be to

25 any particular detail or particular approach being taken by



Page 48

1 a state. There are states all across the country now

2 struggling with this, just as you have to, how do we

3 implement this in our state? How do we make this work in

4 our state? And states will have unique approaches. Unlike

5 the hazardous waste program under Clean Air Program or

6 Clean Water Program, there is a lot more flexibility in the

7 USD program in achieving EPA outcomes. So we expect 50

8 states to approach this in 50 different ways. In the next

9 three or four five years, EPA will have to evaluate those

10 50 states and make these decisions as to how much

11 flexibility they allow in a particular state on a

12 particular issue. Until that happens, I don't think it's

13 fair to say we really know which of these specific details

14 in your proposed rules will or will not pass muster with

15 EPA. So we think there is time for you to adjust or

16 postpone a few of these things and give the industry and

17 the tank owners in Missouri a little more time to figure

18 these things out.

19 Item 4 relates to fiscal notes. I will be

20 brief on this point. We do believe, as I have mentioned,

21 that this rule package will create new costs for private

22 sector businesses in Missouri and for the public sector,

23 for your staff here at the DNR and for our staff. We

24 believe that state law 536.200 and 205 require you as

25 commissioners to know what those costs are and to take them



Page 49

1 into account as you make your decisions. So we would urge

2 you to require your staff to present to you an analysis of

3 those cost between now and the time that you will make your

4 final decision in mid-December.

5 No. 5 is related to three and four. This is

6 not so much an issue related to the language of the rules,

7 but it's a very important implementation question. I have

8 talked to you about all of these equipment testing

9 requirements. The general expectations that much of the

10 existing equipment in the ground will fail when it is

11 tested for the first time. I need to back up and make it

12 clear that a failed test does not mean necessarily that

13 there has been a leak to the environment. There may have

14 been, but it doesn't necessarily mean there will have been.

15 Our question for the Department and for the Commission is

16 what will your response be if as anticipated this piece of

17 equipment or that piece of equipment fails this first test.

18 We think this is a real important issue to discuss and for

19 you as commissioners to understand before you vote on these

20 rules because if, for example, the Department will say

21 every failed test is an indication of a suspected release

22 to the environment, then the owner, by rule, the owner will

23 then be required to do things that costs more money. Some

24 of those things will likely generate new claims for us and

25 it could conceivably have a significant financial effect on



Page 50

1 the trust fund. So the implementation issue has not been

2 really flushed out and we think it's an important one that

3 needs to be discussed and that you all need to understand

4 before you cast your votes on these rules.

5 Finally, I would mention double-walled

6 requirement. This is a not a surprise to anyone that the

7 rule package was proposed with this requirement in it.

8 It's something that Ms. Peters has been talking with us and

9 others about for a long, long time. I simply want you to

10 as commissioners to understand what's happening here and

11 why it's happening. Specifically, there are lots of these

12 tank owners out there who have equipment that's fairly old.

13 One of the reasons Missouri delayed implementing this

14 double-walled requirement as long as it has because we know

15 that it cost more money to put a double-walled system in

16 than a single-walled system. We didn't want to provide --

17 your staff -- didn't want to provide a disincentive for an

18 owner to replace his old equipment. We think that still is

19 a problem; specifically, as it relates to the tanks. So we

20 are suggesting today an idea that frankly just arose in our

21 discussions recently. We haven't even broached this

22 previously with Ms. Peters. We would like to at least

23 consider implementing a requirement that the pipe that when

24 a new system goes in the ground or an old system is

25 replaced, the piping itself needs to be double-walled and



Page 51

1 there have to be these sumps in containment beneath the

2 dispensers, but leave the option open for the owner to buy

3 a single-walled tank. Here is why: There are no data

4 anywhere in the country to demonstrate that double-walled

5 tanks leak less frequently than good corrosion protected

6 single-walled tanks. There are only two kinds of tanks

7 manufactured; either steel tanks or fiberglass tanks.

8 Frankly, a double-walled steel tank is going to be

9 unaffordable for the vast majority of people. So by

10 requiring all new tanks to be double-walled, you are in

11 effect requiring that people stop using clad steel tanks

12 and use only fiberglass tanks in the future. Maybe that

13 will be fine. Maybe over the next 20 years we'll all

14 discover that fiberglass tanks are better. Right now,

15 there is no data to demonstrate that. In fact, there are

16 some experts who believe fiberglass are more prone to leaks

17 for at least a couple reasons. There are lots of new fuels

18 being manufactured. There is questions about whether those

19 new fuels will be compatible with the material used to

20 manufacture the fiberglass tank. Some people think steel

21 is a better material choice for that reason.

22 In addition, there is a problem that we have

23 been working with the Department and others on for the last

24 two or three years where fiberglass tanks are being

25 deformed in the ground as a result of the air pollution



Page 52

1 devices that the Department requires on the vent stacks.

2 Essentially, those devices mean that as customers pump fuel

3 out of the fiberglass tank, liquid goes out the tank, the

4 device on the vent stack prevents air from entering the

5 tank in sufficient volume and a vacuum is created inside

6 the tank that's causing these fiberglass tanks to be

7 deformed. We don't know whether that deformation exceeds

8 what was anticipated in the manufacturing process.

9 Obviously the fiberglass tank manufacturers are reticent to

10 say that it does. But, there are some who say it can't be

11 good for those tanks to be sucked in and to have their

12 sides sucked in.

13 MR. FORESMAN: Doesn't that apply also to

14 steel tanks?

15 MS. EIGHMEY: They don't seem to be subject to

16 the same deformation problem. Again, they may be but we

17 don't have any evidence.

18 MR. FORESMAN: But steel tanks have a lining,

19 right?

20 MS. EIGHMEY: The steel tanks that have been

21 installed in recent years do not have an interior lining;

22 they have an exterior fiberglass coating that prevents

23 corrosion.

24 MR. FORESMAN: Okay. But it could be subject

25 to the same stresses?



Page 53

1 MS. EIGHMEY: Potentially could be, sure. We

2 are hopeful over the long term that this excess stress

3 problem can be resolved through some modifications to the

4 air pollution rules. My only point is as we stand here

5 today, there really is no data demonstrating a corrosion

6 protected single-walled tank is more prone to leak than a

7 double-walled tank made of either steel or fiberglass. So

8 there is no data to justify the requirement. Now, I fully

9 understand the position with EPA. Missouri tried for a

10 number of years to persuade EPA that we didn't have to

11 impose this requirement. We have chosen a different option

12 under the federal law, EPA Region 7 was initially receptive

13 to that and then changed their minds some years later. You

14 have heard a lot about that over the last few years. We

15 understand this a difficult issue and it may be, as

16 commissioners, that you determined you have to proceed with

17 the double-wall requirement. We just simply want to go on

18 the record and make you aware that are some potential

19 problems, including the fact that it will probably result

20 in owners choosing to delay replacement and leave old

21 infrastructure in the ground longer in part because of the

22 cost. It will also mean that for the next 20 or 30 years,

23 all the fuel being stored in newly installed tanks in

24 Missouri will be fiberglass tanks, not in steel tanks. We

25 simply don't know at this point what the long-term impact



Page 54

1 of it may be.

2 I will end my remarks there. I do appreciate

3 your attention. Again, I must repeat how much we

4 appreciate the work that Ms. Peters has done and the

5 excellent product has produced with you for this

6 rule-making. We will, as I said, submit some written

7 comments. But all in all, it's been an excellent project

8 and process. I would be happy to answer any other

9 questions, Ms. Aull, if you or other commissioners have.

10 MR. FORESMAN: Just one. Double-walled

11 fiberglass tanks gives you the benefit to tell if the

12 internal tank is leaking because you monitor the space

13 between the two tanks. That's my understanding; is that

14 correct?

15 MS. EIGHMEY: There are electronic gadgets

16 that monitor that space, yes.

17 MR. FORESMAN: So as soon as you have a leak,

18 if you have a leak, you detect it?

19 MS. EIGHMEY: As long as the electronic

20 gadgets work and people pay attention to them, yes.

21 MR. FORESMAN: Understand. But with the

22 single-wall tank you don't have that. By the time you

23 detect, it's already leaked out.

24 MS. EIGHMEY: Not always, but generally, yes.

25 MR. FORESMAN: Okay. So that's the big



Page 55

1 distinction.

2 MS. EIGHMEY: That's the theory, absolutely.

3 MS. AULL: What is the reliability of those

4 electronic detection devices?

5 MS. EIGHMEY: Well, Chairman Aull, it's like

6 everything else in life, my smart phone works really well

7 when it works really well and I know how to use it. Same

8 thing is true here. The technology is fine, but all of our

9 lives are full of more and more technology. As I mentioned

10 to you, these are very small business owners who have a lot

11 to keep track of. The more complex this becomes, I would

12 hypothesize, the more likelihood there is for human error.

13 MS. AULL: So it's a user reliability.

14 MS. EIGHMEY: It is, as well as design. The

15 equipment vendors have a huge challenge too because the

16 companies that service and maintain this equipment, have to

17 be excellent mechanics. They also have to be excellent

18 technicians and computer experts. This is a very complex

19 equipment business now. Very different. There is a couple

20 equipment guys in the room who can speak to this much

21 better than I. I'm sure they would tell you this is not

22 the same business it was 25 or 30 years ago. Very

23 complicated.

24 MS. AULL: Thank you.

25 MS. EIGHMEY: Thank you for your attention.



Page 56

1 MR. STURGESS: I believe we have one other

2 individual who has requested to speak on this rule, Mr.

3 Hanson.

4 MR. HANSON: I thought that was a sign-in

5 sheet.

6 MR. STURGESS: Okay. That was a speaker list,

7 so we will excuse you.

8 MS. AULL: Do we have any other -- no others

9 then. Okay. I think we will take a break now. I'm sorry

10 we need to close the public hearing.

11 MR. FORESMAN: I will make a motion to close

12 the public hearing.

13 MS. AULL: Do we have a second, please?

14 MR. ADAMS: Second.

15 (Hearing concluded at 11:27 a.m.)

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Page 57

1 CERTIFICATE OF REPORTER

2

3 STATE OF MISSOURI )

4 ) ss.

5 COUNTY OF COLE )

6

7 I, Jenna Petree, do hereby certify that the

8 witness whose testimony appears in the foregoing deposition

9 was taken by me to the best of my ability and thereafter

10 reduced to typewriting under my direction; that I am

11 neither counsel for, related to, nor employed by any of the

12 parties to the action in which this deposition was taken,

13 and further that I am not a relative or employee of any

14 attorney or counsel employed by the parties thereto, nor

15 financially or otherwise interested in the outcome of the

16 action.

17

18

19

20 Court Reporter

21

22

23

24

25





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99:30 33:15

HEARING TRANSCRIPT

11/03


www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334MIDWEST LITIGATION SERVICES

Page 1

1 BEFORE THE MISSOURI DEPARTMENT OF NATURAL RESOURCES


2

3

Two Proposed Amendments to 10 CSR 26 -

4 Underground Storage Tank Rulemaking

5

Public Hearing

6 November 3, 2016

9:30 a.m.

7 1730 East Elm Street

Jefferson City, Missouri 65101

8

9

10 BEFORE (TELEPHONICALLY):

11 Commission Chair - Elizabeth Aull

Commission Vice-Chair - James (Jamie) Frakes

12 Commissioner Mark Jordan

Commissioner Michael Foresman

13

14

15

16

17

18

19

20 Reported by:

Patricia A. Stewart, CCR 401

21 Midwest Litigation Services

Jefferson City, Missouri 65100

22 (573) 636-7551

23

24

25



Page 2

1 AGENDA

2 page

3

4 Call to order 3:3

5

6 Pledge of Allegiance 4:1

7

8 Statement by Commission Chair Aull 4:2

9 Statement by Ms. Peters 5:18

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Page 3

1 (Start time: 9:30 a.m.)

2 P R O C E E D I N G S

3 COMMISSION CHAIR AULL: I'm going to call the

4 meeting to order.

5 And, Madam Secretary, will you please call

6 the role.

7 MS. DOBSON: Chairman Aull.

8 COMMISSION CHAIR AULL: Present.

9 MS. DOBSON: Present by phone.

10 Vice-Chairman Frakes.

11 VICE-CHAIR FRAKES: Present.


13 Commissioner Adams.

14 Commissioner Adams.

15 Absent at this time.

16 Commissioner Foresman.

17 COMMISSIONER FORESMAN: Present.


19 Commissioner Jordan.

20 COMMISSIONER JORDAN: Present.


22 COMMISSION CHAIR AULL: Thanks.

23 I will now ask Mr. Sturgess to lead the group

24 in the Pledge of Allegiance, please.

25 MR. STURGESS: Would you please stand.



Page 4

1 (PLEDGE OF ALLEGIANCE.)

2 COMMISSION CHAIR AULL: Thank you all.

3 Now on to the meeting.

4 I hereby call this public meeting to order.

5 A public hearing is not typically a forum for debate of

6 the issues. Rather, the purpose of this hearing is to

7 provide the Department of Natural Resources and the

8 public an opportunity to present testimony on the

9 proposed changes to Chapter 2 of Title 10, Division 26

10 of the Code of State Regulations.

11 At the request of the Commission the

12 Department will first present testimony on the proposed

13 amendments and new rules. Following their testimony the

14 public will be given the opportunity to comment on the

15 proposed rulemaking.

16 A sign-up sheet is provided at the back of

17 the room for anyone in attendance at the hearing, in

18 addition to comment forms, for those who wish to make

19 any oral comments. Please fill out a comment form if

20 you wish to be heard. This will aid us in recognizing

21 speakers and calling them to testify.

22 Additionally, we ask anyone who approaches

23 the Commission to testify to please state their name and

24 affiliation, if any, for the record and provide a

25 business card if available to the court reporter and to



Page 5

1 the Commission secretary.

2 Written comments will also be accepted at

3 this hearing. Please provide them to the Hazardous

4 Waste Program's Director, Steve Sturgess.

5 Following the conclusion of the hearing

6 comments may be submitted by mail to the Director of the

7 Hazardous Waste Program, Post Office Box 176,

8 Jefferson City, Missouri 65102.

9 Comments submitted by mail must be

10 post-marked on or before the end of the public comment

11 period, on November the 10th, 2016.

12 E-mail comments shall be sent to Heather

13 Peters and her e-mail address, which is Heather,

14 H-e-a-t-h-e-r, dot Peters, P-e-t-e-r-s, at DNR, dot MO,

15 dot gov, and must also be received no later than

16 November the 10th, 2016.

17 Okay. The Chair calls Heather Peters.

18 MS. PETERS: Thank you.

19 Hopefully today's testimony will be pretty

20 brief. I will for the record cover a few of the things

21 we covered with the last hearing though as well.

22 Today we are discussing some changes to the

23 underground storage tank rules. The primary reason for

24 these is to satisfy some EPA requirements.

25 Back in 2005 the Energy Policy Act went into



Page 6

1 effect, and part of that included underground storage

2 tank regulations or requirements for regulation changes.

3 EPA promulgated the Federal Rules in July of

4 2015, and they became effective in October of last year.

5 In addition we have State program approval

6 from EPA which gives Missouri the authority to run

7 Missouri's program. That State program approval is

8 conditional, though, upon us actually implementing the

9 new Federal requirements. And we do have a deadline

10 that we have to meet, by October 13th of 2018, to submit

11 our State program approval, and that renewal must

12 include these new updated EPA requirements.

13 So briefly I will mention that on

14 September 15th, 2016 in the Missouri Register we

15 published all of the underground storage tank rule

16 changes.

17 Twenty-three of those have already had a

18 hearing. That was held on October 20th. And the

19 comment period for those is now closed.

20 Today's hearing, though, what we are

21 discussing is specifically two rules. There was a typo

22 in the September 15th, 2016 register, so there was a

23 correction, and it was reprinted for just these two

24 rules on October 3rd of 2016.

25 The content of the rules didn't change. The



Page 7

1 typo was actually in the announcement of the date and

2 time of this hearing. The comment period for these two

3 rules close on November 10th.

4 And the two rules that we are discussing

5 today are the two release detection rules associated

6 with field-constructed tanks and airport hydrant fuel

7 distribution systems.

8 I will briefly mention that in the

9 10 CSR 26-2.013, that was the initial proposed rule that

10 covered the new requirements for these systems.

11 Now, that rule is closed for comment at this

12 time. It did close on October 27th. But the reason I

13 point this out is because one of the issues in here that

14 these sites will have to comply with are the release

15 detection requirements.

16 According to that proposed rule they would

17 have to comply with the release detection requirements

18 no later than July 1st of 2020.

19 Again, this rule is closed for comments, but

20 the reason I pointed this out is that two rules that we

21 are discussing today tie specifically to this

22 requirement.

23 So the two rules that we're discussing are

24 10 CSR 26-2.046 and 2.047. It is the release detection

25 method for tanks and the release detection for piping



Page 8

1 associated with the field-constructed tanks and the

2 airport hydrant fuel distribution systems.

3 These two rules are directly transferred from

4 the EPA rules. We did not make any State specific

5 changes in either one of these rules.

6 The first rule covers how to monitor these

7 tanks for release detection. Field-constructed tanks,

8 as you might imagine, are often either concrete tanks or

9 they are very large steel-erected tanks, part of which

10 can often be aboveground.

11 Because of that they don't really fall into

12 the normal tank release detection methods that we have

13 in underground storage tanks. They are much larger and

14 they have a much wider variability based on temperature

15 and volume.

16 So because of that EPA promulgated rules that

17 allowed different leak rates for tank monitoring for

18 these tank systems.

19 They can do a monthly monitoring at one

20 gallon per hour, plus a regular routine tightness test,

21 or they can do monthly monitoring at two gallons per

22 hour, with a tightness test every two years.

23 Now, for a frame of reference, underground

24 storage tanks at convenience stores and other regular

25 underground storage tanks have to monitor at .2 gallons



Page 9

1 per hourly monthly. So this is a pretty significant

2 difference for these tanks.

3 In addition, the sites often have very large

4 volume or large piping systems. As you might imagine in

5 an airport hydrant system, the piping will go all of the

6 way from the underground storage tanks out to each and

7 every single one of your gates. So that can be 40, 50,

8 60 sites and thousands and thousands of gallons of fuel

9 in the piping.

10 Again, it's not really comparable to an

11 underground storage tank that will only have a few feet

12 of piping.

13 So because of that EPA did establish

14 different leak rates for these piping, and the leak rate

15 is segmented based on the volume of line -- or volume of

16 fuel in the piping at the time of the test.

17 And so what you'll find in that rule is

18 different segments and what those leak thresholds are.

19 So what we have before us then are these two

20 rules. As I stated earlier, we have 23 other

21 underground storage tank rules in this chapter that have

22 just recently closed for comment. This rule will close

23 for comment on November 10th.

24 Our anticipation is to bring all of these

25 rules, though, all 25, back together again to the



Page 10

1 Commission meeting on December 15th of 2016. That would

2 be when we would be asking for the final adoption of the

3 rules, and that would cover all 25, both the original 23

4 and these two rules.

5 Before you on the slide is the schedule of

6 how those would proceed after that, with December 23rd

7 being the date we would have to get the orders of

8 rulemaking to the Joint Commission on Administrative

9 Rules, and if all would go well on that, then

10 January 25th of 2017 would be when we file with the

11 Secretary of State and we'd start moving to actually

12 promulgate these rules.

13 Like I said, I was going to keep it short and

14 sweet, so if we have any other clarifications that we

15 need, please don't hesitate to mention those now, but

16 that is all that we have at this time.

17 COMMISSION CHAIR AULL: Thank you.

18 COMMISSION VICE-CHAIR FRAKES: Okay. Madam

19 Chair, a real quick question again.

20 I heard her mention (inaudible) --

21 THE COURT REPORTER: I'm sorry. I'm not

22 getting this.

23 MS. DOBSON: Jamie, you're really broken up.

24 COMMISSION CHAIR AULL: You broke up, Jamie.

25 Are you asking --



Page 11

1 COMMISSION VICE-CHAIR FRAKES: Okay.

2 COMMISSION CHAIR AULL: -- are we going to be

3 on --

4 COMMISSION VICE-CHAIR FRAKES: Yeah.

5 (Inaudible.)

6 Ms. PETERS: If the question is about the

7 schedule, all of these rules would go before the

8 Commission at the December 15th meeting for a vote from

9 the --

10 COMMISSION VICE-CHAIR FRAKES: Right.

11 MS. PETERS: -- Commission whether or not

12 we're going to do the final adoption of those rules. So

13 that would be the next Commission action. And that

14 would cover these two rules, as well as the 23 that we

15 covered on October 20th.

16 COMMISSION VICE-CHAIR FRAKES: Okay. Yeah,

17 that's in essence what I was asking, yes.

18 Thank you.

19 COMMISSION CHAIR AULL: Thank you,

20 Commissioner Frakes.

21 Are there any other questions for Ms. Peters?

22 No questions. Then are there any comments

23 from the public, Mr. Sturgess?

24 MR. STURGESS: I have received none.

25 COMMISSION CHAIR AULL: None?



Page 12

1 MR. STURGESS: None.

2 COMMISSION CHAIR AULL: Okay.

3 Excuse me?

4 MR. STURGESS: No comments.

5 COMMISSION CHAIR AULL: Okay. Thank you.

6 That's what I thought you said.

7 All right. Then do I have a motion to close

8 the hearing, please?

9 UNIDENTIFIED SPEAKER: So moved.

10 COMMISSION CHAIR AULL: A second.

11 MR. STURGESS: Who made the motion?

12 COMMISSION VICE-CHAIR FRAKES: Was it

13 Commissioner Foresman?

14 COMMISSIONER FORESMAN: Yes.

15 COMMISSION VICE-CHAIR FRAKES: And I'm

16 Commissioner Frakes. I second it.

17 COMMISSION CHAIR AULL: Okay. Thank you.

18 Call the question. All in favor.

19 (Unanimous aye.)

20 COMMISSION CHAIR AULL: Any opposed?

21 (No response.)

22 COMMISSION CHAIR AULL: So be, the meeting is

23 now concluded, and are there -- for the hearing rather.

24 Are there any other items we need to address,

25 Mr. Sturgess?



Page 13

1 MR. STURGESS: No, there are not.

2 COMMISSION CHAIR AULL: That being so, do I

3 have a motion to call the meeting to -- excuse me. Do I

4 have a motion to close the meeting, please, adjourn the

5 meeting?

6 UNIDENTIFIED SPEAKER: I'll make a motion to

7 adjourn.

8 MR. STURGESS: Who made the motion?

9 UNIDENTIFIED SPEAKER: I'll second.

10 COMMISSION CHAIR AULL: Thank you.

11 All in favor.

12 (Unanimous aye.)

13 MR. STURGESS: For the record could we know

14 who made the motion and the second?

15 COMMISSION CHAIR AULL: Okay.

16 COMMISSION VICE-CHAIR FRAKES: I made the

17 motion, Commissioner Frakes.

18 COMMISSIONER FORESMAN: Foresman seconded.

19 MR. STURGESS: All right. Thank you.

20 MS. DOBSON: The meeting is closed.

21 WHEREIN, the public hearing concluded at

22 9:42 a.m.

23

24

25



Page 14

1 CERTIFICATE OF REPORTER

2

3 I, Patricia A. Stewart, CCR, a Certified

4 Court Reporter in the State of Missouri, do hereby

5 certify that the testimony taken in the foregoing

6 transcript was taken by me to the best of my ability and

7 thereafter reduced to typewriting under my direction;

8 that I am neither counsel for, related to, nor employed

9 by any of the parties to the action in which this

10 transcript was taken, and further that I am not a

11 relative or employee of any attorney or counsel employed

12 by the parties thereto, nor financially or otherwise

13 interested in the outcome of the action.

14

15

16 __________________________

17 Patricia A. Stewart

18 CCR 401

19

20

21

22

23

24

25





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Rulemaking Update

Information:

The Hazardous Waste Management Commission to be provided an update on recent rulemaking activities. Recommended Action: Information Only. Presented by: Mr. Tim Eiken – Rule Coordinator, HWP



Legislative Update

Information: The Commission to be provided an overview of recent legislation, which may impact the Missouri Department of Natural Resources, the Hazardous Waste Program or the Commission. Recommended Action: Information Only Presented by: Mr. Tim Eiken – Director’s Office, HWP



Tanks Financial Responsibility – Quarterly Update

Issue: This is an update of the Hazardous Waste Program’s (HWP’s) progress on sites without a financial responsibility (FR) mechanism to cleanup releases from underground storage tanks (USTs) utilizing the expedited enforcement procedure. Information: Missouri law and regulation requires tank owners and operators to maintain FR so that they

will have funds to take corrective action and compensate third parties for bodily injury and property damage if they have petroleum releases from their USTs.

Recognizing the importance of this, the Hazardous Waste Management Commission approved

the usage of an expedited enforcement procedure to address these facilities in August 2008. At that time, of the 3,374 facilities required to have financial responsibility, 184 facilities

lacked coverage. A 95% compliance rate. As of November 29, 2016, of the 2,463 facilities required to have financial responsibility, 71

are currently without verified coverage. This equates to a 97% compliance rate. The expedited enforcement process is a valuable tool, allowing the Compliance and

Enforcement Section (CES) to keep pace with the tasks and responsibilities of ensuring compliance with FR.

As of November 29, 2016, of those 71 sites, 24 are currently at the Attorney General’s Office

for legal action, 14 are currently in the Enforcement Unit and 39 of those have had initial letters concerning their compliance. In addition, of those 71 sites currently without coverage, 34 currently have pending applications with the Petroleum Storage Tank Insurance Fund.

Recommended Action:

Information Only Presented by: Mike Martin, Chief, UST Compliance and Technology Unit, CES, HWP



Infographic on Missouri’s Hazardous Waste Generator Program

Issue: Infographic on how Missouri’s RCRA activities compare to other states on a national level. Information: Statistical presentation of national biennial reporting data supplemented with Missouri specific data gleaned from various sources to provide perspective on how Missouri’s activities compare in relation to other states nationally. Presented by: Mr. David Green – Budget & Planning Section, HWP

11/30/2016

1

Infographic on Missouri’s Hazardous Waste

Generator Program

David Green

Budget and Planning

Dec. 15, 2016

TEXAS 45%

15.6 MillionTons

LOUISIANA 14%

MISSISSIPPI 5%

OHIO 4%

CALIFORNIA 4%

KA

IN

NSAS4%

DIANA 3%NEWMEXICO

2%ALABAMA

2%ILLINOIS

2%

Remaining States 15%

QUANTITY OF LQG HAZARDOUS WASTE BY STATE,2013

NEW YORK, 3091

CALIFORNIA, 2767

PENNSYLVANIA, 1003

OHIO,973

TEXAS, 970

ILLINOIS, 835INDIANA, 710NEW JERSEY, 709

GEORGIA, 516

NORTH CAROLINA, 671

Remaining States, 8478

NUMBER OF LQG FACILITIES BY STATE, 2013

Missouri393 LQGs

285,034 tons0.8%

11/30/2016

2

15,628,090 4,790,163 5,300,206

15,683,405 4,399,520 5,670,481

13,461,911 3,878,843 9,099,138

13,406,448 5,010,814 6,259,749

15,224,158 5,460,262 7,723,252

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

2013

2011

2009

2007

2005

BiennialRep

orting Year

RELATIVE QUANTITY OF HAZARDOUS WASTE, BY STATE FROM 2005 THROUGH2013

TEXAS

LOUISIANA

MISSISSIPPI

OHIO

CALIFORNIA

KANSAS

INDIANA

NEWMEXICO

ALABAMA

ILLINOIS

Remaining States

Mo 285,034

Mo 250,992

Mo 238,160

Mo 228,056

Mo 223,587

14

12

10

8

6

4

2

02013

TonsofHazardousWaste,inMillions

Quantity of Hazardous Waste by State, 2005 through201318

16

KANSAS

2005

TEXAS

INDIANA

2007

LOUISIANA

NEWMEXICO

MISSISSIPPI

ALABAMA

2009

OHIO

ILLINOIS

2011

CALIFORNIA

Remaining States

Mo

Missouri Trending from 223,587 in 2005 slightly upward to 285,034 in

2013

11/30/2016

3

CA, 13808,20%

IL, 5132, 8%

PA, 4251, 6%

NY, 4007, 6%

OH, 3283, 5%FL, 3192, 5%MA, 2610, 4%

VA, 1827, 3%

TX, 1986, 3%MI, 1986, 3%

Remaining States, 25,331,37%

STATES WITH HIGHEST NUMBER OF LIKELY OPERATING SQGS, 2013

*The number of likely operating SQGs was calculated using Jim Oleary’s and Cpan Lee’s methodology.The data was collected and analyzed from a variety of sources including BR Report, GM forms, RCRAinfo, and state databases.

Missouri1,717 SQGs2.5%

0.97

0.65

0.62

0.55

0.49

0.43

0.42

0.34

0.33

0.30

1.79

0.0 3.0

CALIFORNIA

TEXAS

OHIO

MICHIGAN

INDIANA

LOUISIANA

PENNSYLVANIA

ILLINOIS

ALABAMA

SOUTH CAROLINA

REMAININGSTATES

0.5 1.0 1.5 2.0 2.5

TONS OF HAZARDOUS WASTE RECEIVED, INMILLIONS

42

38

22

19

19

16

15

15

14

13

215

0 50 300 350

TEXAS

CALIFORNIA

PENNSYLVANIA

NEWYORK

OHIO

ILLINOIS

FLORIDA

MISSOURI

NORTH CAROLINA

MICHIGAN

REMAININGSTATES

100 150 200 250

NUMBER OF HAZARDOUS WASTERECEIVERS

2013

Average (2005 through2013)

TONS OF HAZARDOUS WASTE RECEIVED AND NUMBER OF HAZARDOUSWASTE RECEIVERS

*

**Missouri199,833 tons (0.2 million tons)

11/30/2016

4

7.00

0.68

0.58

0.55

0.51

0.39

0.37

0.24

0.23

0.21

2.25

0 8

CALIFORNIA

TEXAS

OHIO

MICHIGAN

LOUISIANA

INDIANA

NEWJERSEY

ARKANSAS

PENNSYLVANIA

ALABAMA

REMAININGSTATES

1 2 3 4 5 6 7

TONS OF HAZARDOUS WASTE SHIPPED, INMILLIONS

3,759

3,097

1,485

1,277

1,212

1,084

818

801

801

661

10,098

0 2000 4000 6000 8000 10000 12000

CALIFORNIA

TEXAS

OHIO

MICHIGAN

LOUISIANA

INDIANA

NEWJERSEY

ARKANSAS

PENNSYLVANIA

ALABAMA

REMAININGSTATES

NUMBER OF HAZARDOUS WASTESHIPPERS

2013

Average (2005through 2013)

TONS OF HAZARDOUS WASTE SHIPPED AND NUMBER OF HAZARDOUS WASTE SHIPPERS

Missouri – 1,602 shippers*Mo does not require SQGs to file the biennial report

*Missouri • 91,949 tons shipped • 30.9% of total tons generated in Mo• 80,374 tons shipped on manifest • 27.0 % of total tons generated in Mo

1.18

0.32

0.26

0.22

0.22

0.20

0.16

0.15

0.14

0.13

1.64

0 1.5 2

CALIFORNIA

NEWJERSEY

OHIO

INDIANA

ARKANSAS

TEXAS

KENTUCKY

LOUISIANA

PENNSYLVANIA

MICHIGAN

All OtherStates

0.5 1

INTERSTATE TONS SHIPPED, INMILLIONS

0.44

0.33

0.32

0.29

0.24

0.24

0.21

0.20

0.18

0.18

1.09

0 2

MICHIGAN

OHIO

INDIANA

PENNSYLVANIA

TEXAS

ILLINOIS

ARKANSAS

ALABAMA

SOUTH CAROLINA

MISSOURI

All OtherStates

0.5 1 1.5

INTERSTATE TONS RECEIVED, INMILLIONS

2013

AVERAGE (2005 THROUGH2013)

INTERSTATE TONS SHIPPED AND RECEIVED

*Missouri 175,715 tons received

**Missouri 70,638 tons shipped out of state(0.07 million tons)

*



Legal Update

Issue: Routine update to the Commission on legal issues, referrals, filings, appeals, and any pending Administrative Hearing Commission cases. Information: Information Only. Presented by: Ms. Brook McCarrick, Office of the Attorney General



Public Inquiries or Issues

Issue: Opportunity for participants to speak to the Commission on relevant issues or matters before them. Information: Information Only. Presented by: Mr. Steve Sturgess – Director, HWP



Other Business

Issue: Update to the Commission on Program matters and other relevant issues. Information: Information Only. Presented by: Mr. Steve Sturgess – Director, HWP


October 20, 2016 Agenda Item # 11

Future Meetings

Information: Meeting Dates: Date Time Location Thursday, February 16, 2017 9:45 A.M. Bennett Spring / Roaring River Room

1730 East Elm Jefferson City, Missouri 65101

Thursday, April 20, 2017 9:15 A.M. Nightingale Creek Conference Room Lewis & Clark State Office Building 1101 Riverside Drive Jefferson City, Missouri 65101

Thursday, June 15, 2017 9:45 A.M. Bennett Spring / Roaring River Room 1730 East Elm Jefferson City, Missouri 65101

Thursday, August 17, 2017 9:45 A.M. Bennett Spring / Roaring River Room 1730 East Elm Jefferson City, Missouri 65101

Thursday, October 19, 2017 9:45 A.M. Bennett Spring / Roaring River Room 1730 East Elm Jefferson City, Missouri 65101

Thursday, December 21, 2017 9:45 A.M. Bennett Spring / Roaring River Room 1730 East Elm Jefferson City, Missouri 65101

Thursday, February 15, 2018 9:45 A.M. Bennett Spring / Roaring River Room 1730 East Elm Jefferson City, Missouri 65101

Recommended Action: Information Only.