Requires owners and operators of Underground Storage Tanks to undergo training and certification. Provides department the ability prohibit delivery of regulated substances to a non-compliant facility.

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62-761.350Operator Training and Certification

62-761.400Registration and Financial Responsibility

PURPOSE AND EFFECT: Requires owners and operators of Underground Storage Tanks to undergo training and certification. Provides department the ability prohibit delivery of regulated substances to a non-compliant facility.

SUMMARY: The Energy Policy Act of 2005 (EPAct) which amended the Solid Waste Disposal Act by adding section 9012, provided the US EPA with the authority to prohibit deliveries of regulated substances to federally regulated Underground Storage Tanks (UST) and require UST operator training. Because FDEP does not have an EPA approved UST program, EPA may choose to enforce any of the federal UST laws, including, violations of the EPAct delivery prohibition and operator training requirements, upon Florida UST owners and operators that would be regulated under the federal program. EPA has indicated it would not pursue enforcement against Florida UST facilities if FDEP met the EPAct requirements and enforced them. On April 10, 2013, EPA notified FDEP that it did not consider FDEP’s existing practices regarding these provisions as complying with the EPAct and, consequently, EPA would not continue to provide FDEP with certain UST grant funding. In order to continue to receive this funding, on May 10, 2013, FDEP committed to EPA to adopting rules to implement these provisions.

OTHER RULES INCORPORATING THIS RULE: These are new rules, therefore no other rule reference these rules.

EFECT ON THOSE OTHER RULES: None.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 376.303(1)(a) FS.

LAW IMPLEMENTED: 376.303, 376.323, 376.3077, 376.309 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: William E. Burns, [e-mail], [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

62-761.350 Operator Training and Certification.

(1) Owners or operators shall identify and designate for each in-service underground storage tank (UST) facility including unmanned facilities, at least one named individual for each class of operator – Class A, Class B, and Class C. All individuals designated as a Class A, B or C operator shall, at a minimum, be trained and certified in accordance with this rule. For the purposes of this rule, the terms "Class A Operator", "Class B Operator" or "Class C Operator" are terms specific to the training requirements of this subsection 62-761.350(2), F.A.C.

(a) Owners and operators may designate different individuals for each class of operator, or one individual for more than one of the operator classes.

(b) Any individual designated for more than one operator class shall be trained and certified for each operator class, except that training and certification as a Class B operator also entitles that individual to certification as a Class A operator.

(c) An individual may be designated as a Class A Operator for one or more facilities. An individual may be designated as a Class B Operator for one or more, but not to exceed 50 facilities. An individual Class C operator must be specifically trained for each facility.

(d) During hours of operation, UST facilities must have at least one certified operator (either a Class A, Class B, or Class C operator) present at the UST facility, except when a UST facility is unmanned. A UST facility is considered unmanned when during the normal course of business there is routinely no attendant present at the facility who could respond to alarms or emergencies related to the UST system. (Examples of unmanned UST facilities include, but are not limited to, card lock or card access fueling stations, telecommunication towers or utility transfer stations serviced by emergency generator USTs, and unattended UST systems located at industrial facilities.) Unmanned facilities must have weather resistant signage clearly visible from any dispenser which instructs users with regard to basic safety procedures, provides the customer with a 24-hour telephone contact number monitored by a Class A, B, or C operator for the facility and provides instruction on contacting local emergency responders.

(2) The three classes of operators are identified as follows.

(a) Class A Operator.

1. Functions. A Class A operator of a UST facility is an individual who typically has primary responsibility for ensuring the proper operation and maintenance of the UST systems, particularly in the capacity of managing resources and personnel necessary to achieve and maintain compliance with all UST regulations.

2. Qualifications and Training. Class A operators must be trained in and have a general knowledge of the requirements of applicable UST regulations, including, but not limited to registration, system components, product compatibility, spill and overfill prevention, corrosion protection, release detection, recordkeeping, notification, release reporting and response, temporary and permanent closure, operator training, and financial responsibility.

(b) Class B Operator.

1. Functions. A Class B operator of a UST facility is an individual who ensures the implementation of all applicable requirements of these regulations in the field and implements the day-to-day aspects of the operation and maintenance of, and recordkeeping for, UST systems.

2. Qualifications and Training. Class B operators must be trained in and have detailed knowledge of the requirements of applicable UST regulations, including, but not limited to registration, system components, product compatibility, spill and overfill prevention, corrosion protection, release detection, recordkeeping, notification, release reporting and response, temporary and permanent closure, operator training and financial responsibility. A UST facility owner or operator may designate as its Class B operator a third party (i.e. an individual who is an independent contractor or consultant and is not affiliated with the facility owner or operator) only if that individual is Certified Contractor who also holds a current "A" or "A/B" license and who either is, or is employed by, a registered Certified Contractor. However, designation of an independent or not affiliated Class B operator in this manner does not also entitle that individual to certification as a Class A operator for a facility.

(c) Class C Operator.

1. Function. A Class C operator of a UST facility is an individual designated by the UST system owner who typically controls the dispensing of fuel at the facility and is responsible for initial response to alarms, releases, spills, overfills or threats to the public or to the environment.

2. Training. Class C operators must be trained in both general and facility-specific emergency response procedures, such as: the operation of emergency shut-off equipment; the initial response procedures following system alarm warnings; the appropriate first response actions to releases, spills, or overfills; and the notification procedures to emergency responders and to the designated Class A and Class B operators of a UST facility.

(3) Training.

Operator training must fulfill the training requirements described for each class of operator. The following is a list of acceptable approaches to meet the operator training requirements.

(a) Acceptable Training for Class A and Class B operators.

Class A and Class B operators must complete a Department approved operator training course. Courses or processes may include in-person or on-line training performed by, contracted for, or approved by the Department, and must include an evaluation of operator knowledge through testing, practical demonstration, or other tools deemed acceptable by the Department. In order for a non-contracted provider to be approved by the Department, the provider of a training course or process must be sponsored by an association or industry organization recognized nationwide or statewide with regard to its affiliation with regulated petroleum UST systems. All providers will also be required to provide training documentation, including on-going maintenance of records of certified operators. Those records will be required to be accessible to the Department on an on-going basis.

(b) Acceptable Training for Class C Operators.

1. Class B operators must provide training or ensure that the UST facility's Class C operators otherwise complete training in emergency procedures. Class C operator training programs may include in-class, hands-on, on-line, or any other training format deemed acceptable by the Class B operator.

2. Class A and Class B operators must ensure that site-specific emergency procedures are maintained in an easily accessible location at the UST facility which is immediately available to the Class C operator, and that site-specific notices that include the location of emergency shut-off devices and appropriate emergency contact telephone numbers are posted in a prominent area at the UST facility that is easily visible to the Class C operator. For the purposes of this subsection, the phrase "easily accessible location" means located in a place and manner that allows a Class C Operator quick and immediate access to site-specific emergency procedures.

(4) Certification.

Operators are considered certified operators after successfully completing one of the training processes listed in subsection (a) of this section.

(a) Class A and Class B Operators. Training providers must provide verification to all Class A and Class B operators who have successfully completed training, in the form of a written or printable electronic training certificate stating the classification and the date it was obtained. Owners and operators must ensure that training certificates are maintained at each facility for inspection by the Department.

(b) Class C Operators. A designated Class B operator for a given facility must provide the facility owner or operator with signed and dated written verification in the form of a list of all Class C operators who have been trained for that facility, which includes the date of that training. Owners and operators must ensure that a current and correct list of trained Class C operators is maintained at each facility for inspection by the department.

(5) Deadlines.

(a) Within 365 days of effective date of the rule, owners or operators of underground storage tank (UST) facilities must designate at least one Class A, Class B, and Class C operator for each facility who has completed an acceptable operator training course.

(b) Class A or Class B operators designated by a UST facility owner or operator after the effective date of this rule, within 30 calendar days of assuming operation and maintenance responsibilities at the UST facility.

(c) Class C operators designated by a UST facility owner or operator after the effective date of this rule, prior to assuming unsupervised responsibility for responding to emergencies at UST system facilities.

(6) Frequency.

If a UST facility receives a notice of violation and the Department determines that the UST facility is in significant noncompliance, the designated Class B operators for that UST facility must recertify Class B training, within 90 days. Class B operators are not, however, required to attend such training more than once every 12 months, regardless of the number of their designated facilities found in violation. For the purposes of this rule, "significant noncompliance" is defined as the failure to maintain compliance in one or more of the following release detection, spill/overfill prevention, corrosion protection or financial assurance.

(7) Documentation.

Owners and operators of underground storage tank facilities (except unmanned facilities) must maintain required training certification documentation as described in this rule on-site and must provide it upon request to the Department. Documentation may be maintained electronically off-site if that facility has the capability of producing a clear printed copy which can be provided to the Department within 72 hours. Owners and operators of unmanned facilities must provide documentation as requested by the Department.

Rulemaking Authority 376.303 FS. Law Implemented 376.303 FS. History–New_________.

 

62-761.400 Registration and Financial Responsibility.

(1) through (3) No change.

(4) Revocation of Registration Placard.

The Department may revoke a registration placard for failure to:

(a) Install, maintain and operate leak detection equipment pursuant to Rule 62-761.610, F.A.C.;

(b) Meet, maintain and operate performance standards pursuant to Rule 62-761.500, F.A.C.;

(c) Respond and abate an ongoing discharge, pursuant to Rule 62-761.820, F.A.C.;

(d) Complete closure of out of service tank systems pursuant to Rule 62-761.800, F.A.C.; or

(e) Maintain adequate financial responsibility pursuant to Rule 62-761.400(3), F.A.C.

The Department shall provide written notice to the owner of the facility 30 business days prior to denying or suspending a registration placard. Owners of facilities shall give written notice to the Department when such deficiencies are corrected and the Department shall re-inspect the facility within two business days of receiving such notice. The Department shall release suspended registration placards within three business days of the re-inspection if all deficiencies have been corrected to the department’s satisfaction. The Department shall establish, maintain, and post on its web site a list of previously registered facilities that do not have a valid registration placard. This list will not include previously registered facilities for which all storage tank systems have been closed or removed in accordance with department rules.

(5) Delivery prohibitions.

(a) No owner, operator, or supplier shall deposit any regulated substance into a UST system regulated under this chapter unless that owner or operator has a valid, current Registration Placard issued by the agency covering that UST system.

(b) It is an affirmative defense to the imposition of an administrative penalty for a violation of subparagraph (a) of this paragraph that the owner, operator, or supplier delivering a regulated substance into a UST relied on registration information for the UST obtained from the Department’s website not more than 30 days before the date of delivery.

Rulemaking Specific Authority 376.303, 376.322(2) FS. Law Implemented 376.303, 376.309, 376.323, 376.3077 FS. History–New 12-10-90, Formerly 17-761.400, Amended 9-30-96, 7-13-98, 6-21-04,___________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: William E. Burns, Environmental Administrator

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Herschel T. Vinyard Jr., Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 4, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 25, 2013