# A PPLICATION 

# F OR 

# A PPROVAL O F



# I DAHO 

# ’ S 

# U NDERGROUND 

# S TORAGE 

# T ANK



# (U ST ) P ROGRAM

Submitted By:



### State of Idaho

Department of Environmental Quality

Submitted To:


### United States Environmental Protection Agency

Region 10

July 20 1 1Application for Approval of Idaho’s UST Program

i 

## T ABLE OF 

## C ONTENTS

Governor's Letter

................................ ................................ ................................ .. 1 Attorney General's Letter of Certification

................................ .............................. 2 Attorney General’s Statement

................................ ................................ ........... 3 Demonstration of Adequate Enforcement Procedures

................................ ........ 43 A. Procedures for Compliance Monitoring

................................ ...................... 43 B. Procedures for Enforcement Response

................................ ..................... 49 Memorandum of Agreement

................................ ................................ ............... 59 Program Description

................................ ................................ ........................... 65 A. Program Description

................................ ................................ .................. 65 B. Program Scope

................................ ................................ .......................... 65 C. Organization and Structure of State Program

................................ ............ 66 D. Release Response, Reporting and Corrective Action

................................ 68 E. UST Closure

................................ ................................ .............................. 72 F. Financial Responsibility

................................ ................................ .............. 73 G. Resource Information

................................ ................................ ................ 74 H. Energy Policy Act of 2005

................................ ................................ .......... 74 Appendix A

. State Rules Appendix B

. State Statute s Appendix C. Idaho Rules of Civil Procedure Appendix D. Notification Form for Underground Storage Tank Systems Appendix E. U nderg round S torage Tank Program Implementation Manual Appendix F

. Operator Training Certification Form Appendix G

. Cathodic Protection Test Report and Line Leak Detector/Line

Tightness Test Forms Appendix H

. Release Reporting Form Appendix I Outreach Mailings Appendix J

. UST Inspection Application Appendix K

. Inspector Credentials Appendix L

. Sample Facility Management Plan Appendix M

. Facility Database Example Appendix N

. Sample Inspection Report Appendix O

. Sample Enforcement Action Appendix P

. Enforcement Pr ocedures Manual: Section 2 Excerpt Appendix Q. Chain of Custody Form Appendix R. Enforcement Case Referral Package Appendix S

. Case Law Appendix T

. Hazardous Waste Management Act Civil Penalty Policy Appendix U. Guidance for Supplemental Environmental Pr ojects Appendix V

. UST/LUST Program Organizational Chart Appendix W

. Cost Recovery Guidance Manual Appendix X

. Example LUST Event Appendix Y

. Idaho Prime Loan Program BrochureApplication for Approval of Idaho’s UST Program

3 

### Attorney General’s Statement The following tables contain references to Idaho rules and statutes. Certified copies of all referenced materials are provided in Appendix A ( state rules)

, Appendix B ( state statutes) , and Ap pendix C (court rules)

. New UST Systems a nd Notification Objective 40 CFR § 281.30

The State must have requirements that ensure that all new UST systems conform with the following: State Rule Citation (Idaho Administrative Procedures Act [ IDAPA ] ) State S tatutory

Citation (Idaho Code)

(a) Be designed, constructed, and installed in a manner that will prevent releases for their operating life due to manufacturing defects, structural failure, or corrosion. [Note: Codes of practice developed by nationally

re cognized organizations may be used to demonstrate that the State program requirements are no less stringent in this area.] IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(b) Be provided with equipment to prevent spill s and tank overfills when new tanks are installed or existing tanks are upgraded, unless the tank does not receive more than 25 gallons at one time. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07) (c) All UST system o wners and operators must notify the implementing State agency of the existence of any new UST system using a form designated by the State agency. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 C FR § 281.30 New UST Systems and Notification

The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for O bjective 40 CFR § 281.30(a) and (b).

40 CFR § 281.30(c) The State has adopted the Federal r egulations by reference and therefore meets the no less stringent criterion for Objective 40 CFR § 281.30(c). The State has designated a form for UST system owners and operators to notify the State of the existence of any new UST system. A copy of this f orm is provided in Appendix D

.Application for Approval of Idaho’s UST Program

4 Upgrading Existing UST Systems Objective 40 CFR § 281.31

State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) The State must have requirements that ensure existing UST systems will be replaced or upgraded before December 22, 1998, to prevent releases for their operating life due to corrosion, and spills or overfills. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.31 Upgrading Existing UST Systems

The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective § 281.31

.Application for Approval of Idaho’s UST Program

5 General Operating Requirements Objective 40 CFR § 281.32

The State must have requirements that ensure that al l new and existing UST systems conform to the following: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (a) Prevent spills and overfills by ensuring that the space in the tank is sufficient to receive the volume to be transferred and t hat the transfer operation is monitored constantly; IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07) (b) Where equipped with cathodic protection, be operated and maintained by a person with sufficient training and exper ience in preventing corrosion, and in a manner that ensures that no releases occur during the operating life of the UST system

. [Note: Codes of practice developed by nationally

recognized organizations and national independent testing laboratories may be u sed to demonstrate the State program requirements are no less stringent.]; IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(c) Be made of or lined with materials that are compatible with the substance stored; IDAPA 58.01 .07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07) (d) At the time of upgrade or repair, be structurally sound and upgraded or repaired in a manner that will prevent releases due to structural failure or corrosion during their operati ng lives; IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07) (e) Have records of monitoring, testing, repairs, and closure maintained that are sufficient to demonstrate recent facility compliance status, except that records demonstrating compliance with repair and upgrading requirements must be maintained for the remaining operating life of the facility. These records must be made readily available when requested by the implementing agency. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.32 General Operating Requirements

The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective § 281.32(a) t hrough (d).Application for Approval of Idaho’s UST Program

6 40 CFR § 281.32(e) IDAPA 58.01.07.004.01 adopts the Federal regulations by reference including § 280.34

, which requires recent monitoring, testing, and repair records. Per § 280.33(f), repair records must be kept for the operating life of the facility. Section 280.45 (b) requires monitoring, testing, and sampling records be kept for at least one year , while § 280.74 requires closure records be kept for at least three years. Section 280.34(c)(1)

- (2) requires records be made immediately or readi ly available.Application for Approval of Idaho’s UST Program

7 Release Detection Objective 40 CFR § 281.33(a)

(a) Release detection requirements for owners and operators must consist of a method, or combination of methods, that is: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) ( 1) capable of detecting a release of the regulated substance from any portion of the UST system that routinely contains regulated substances

-- as effectively as any of the methods allowed under the Federal Technical Standards

-- for as long as the UST sys tem is in operation. In comparing methods, the implementing agency shall consider the size of release that the method can detect and the speed and reliability with which the release can be detected. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(2) designed, installed, calibrated, operated and maintained so that releases will be detected in accordance with the capabilities of the method; IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.100 (Effective 4

- 2

- 08) Id aho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 8806 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.33(a) Release Detection

40 CFR § 281.33(a)(1) The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective § 281.33 (a)(1)

. Idaho Code § 39

- 8806 and IDAPA 58.01.07.100 require UST systems installed after February 23, 2007

, and within 1

, 000 feet of a potable drinking water source to be secondarily

- contained and monitored inters titially for releases.

40 CFR § 281.33 (a)(2) The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective § 281.33 (a)(2). The State has additional measures that meet the no less stringent criterion in Idaho Code § 39

- 8806 and IDAPA 58.01.07.100

, which provide that UST systems installed after February 23, 2007

, and within 1

, 000 feet of a potable drinking water source be designed and installed with secondary containment. The UST system must be calibrated, operated, and maintained so that releases will be detected interstitially. This is consistent with the purpose and intent of the Release Detection requirements in the Code of Federal Regulations

.Application for Approval of Idaho’s UST Program

8 Release Detection Objective 40 CFR § 281 .33(b)

(b) Release detection requirements must, at a minimum, be scheduled to be applied at all UST systems: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code)

(1) immediately when a new UST system is installed: IDAPA 58.01.07.004.01 (Effe ctive 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07) (2) on an orderly schedule that completes a phase

- in of release detection at all existing UST systems (or their closure) before December 22, 1993, except that release detection for the piping attache d to any existing UST that conveys a regulated substance under greater than atmospheric pressure must be phased

- in before December 22, 1990. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 28 1.33(b) Release Detection

The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective § 281.33 (b)

.Application for Approval of Idaho’s UST Program

9 Release Detection Objective 40 CFR § 281.33(c)

(c) All petroleum tanks must be sampled, t ested, or checked for releases at least monthly, except that: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (1) new or upgraded tanks (that is, tanks and piping protected from releases due to corrosion and equipped with both spill and overfill prevention devices) may temporarily use monthly inventory control (or its equivalent) in combination with tightness testing (or it s equivalent) conducted every 5 years for the first 10 years after the tank is installed or upgraded, or until Decem ber 22, 1998, whichever is later; and IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(2) existing tanks unprotected from releases due to corrosion or without spill and overfill prevention devices may use monthly invento ry control (or its equivalent) in combination with annual tightness testing (or its equivalent) until December 22, 1998. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.33(c) Release Dete ction

The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objective § 281.33 (c)

.Application for Approval of Idaho’s UST Program

10 Release Detection Objective 40 CFR § 281.33(d)

(d) All underground piping attached to the tank that routinely conveys petroleum must conform to the following: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (1) if the petroleum is conveyed under greater than atmospheric pressure: (i) the piping must be equipped with release detection that dete cts a release within an hour by restricting or shutting off flow or sounding an alarm; and (ii) the piping must have monthly monitoring applied or annual tightness tests conducted. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.100 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(2) if suction lines are used: (i) tightness tests must be conducted at least once every 3 years, unless a monthly method of detection is applied to this piping; or (ii) the piping is designed to allow the contents of the pipe to drain back into the storage tank if the suction is released and is also designed to allow an inspector to immediately determine the integrity of the piping system. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.100 (Effec tive 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 8806 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.33(d) Release Detection

The State has adopted the Federal regulations by reference and therefore meets the no less string ent criterion for Objective § 281.33 (d). The State has additional measures that meet the no less stringent criterion in Idaho Code § 39

- 8806 and IDAPA 58.01.07.100

, which provide that piping installed after February 23, 2007

, and within 1

, 000 feet of a po table drinking water source use interstitial monitoring as the release detection method. This is consistent with the purpose and intent of the Release Detection requirements in the Code of Federal Regulations

.Application for Approval of Idaho’s UST Program

11 Release Detection Objective 40 CFR § 281.3 3(e)

(e) All UST systems storing hazardous substances must meet the following: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code)

(1) all existing hazardous substance UST systems must comply with all the requirements for petroleum UST syst ems in sections 281.33(c) and (d) above, and after December 22, 1998, they must comply with the following subsection (e)(2). IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.004.02 ( b ) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

( 2) all new hazardous substance UST systems must use interstitial monitoring within secondary containment of the tanks and the attached underground piping that conveys the regulated substance stored in the tank, unless the owner and operator can demonstrate to the State (or the State otherwise determines) that another method will detect a release of the regulated substance as effectively as other methods allowed under the State program for petroleum UST systems and that effective corrective action technology is available for the hazardous substance being stored that can be used to protect human health and the environment. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.100 (Effective 4

- 2

- 08); IDAPA 58.01.07.004.02 ( b ) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 8806 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.33(e) Release Detection

The State has adopted the Federal regulations by reference and therefore meets the no less stringent criterion for Objecti ve § 281.33 (e) . For 40 CFR § 281.33(e)(2)

, the State has additional measures that meet the no less stringent criterion in Idaho Code § 39

- 8806 and IDAPA 58.01.07.100

, which require hazardous substance UST systems installed after February 23, 2007

, and with in 1,000 feet of a potable drinking water source to be secondarily

- contained and monitored interstitially for releases. This is consistent with the purpose and intent of the Release Detection requirements in the Code of Federal Regulations

.Application for Approval of Idaho’s UST Program

12 Rel ease Rep orting, Investigation, a nd Confirmation Objective 40 CFR § 281.34

All owners and operators must conform with the following: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code)

(a) Promptly investigate all suspected releases, including: (1) when unusual operating conditions, release detection signals and environmental conditions at the site suggest a release of regulated substances may have occurred; and (2) when required by the implementing agency to determine the source of a release having an impact in the surrounding area; and IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) ; IDAPA 58.01.02.851.01 (Effective 7

- 1

- 93) ; IDAPA 58.01.02.851.02 (Effective 7

- 1

- 93); IDAPA 58.01.07.200 (Effective 4

- 2

- 08); IDAPA 58.01.24 ( E ffective 5

- 8

- 09) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)

(b) Promptly report all confirmed underground releases and any spills and overfills that are not contained and cleaned up. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.02.851.01 (Effective 7

- 1

- 93); IDAPA 58.01.07.200 (Effective 4

- 2

- 08); IDAPA 58.01.24 ( E ffective 5

- 8

- 09) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)Application for Approval of Idaho’s UST Program

13 (c) Ensure that all owners and operators contain and clean up unreported spills and overfills in a manner that will protect human health and the environment. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.02.851.04 (Effective 7

- 1

- 93); IDAPA 58.01.24 ( E ffective 5

- 8

- 0 9) Idaho Code

§ 39

- 8805 (Effective 5

- 3

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)

Notes on Objective 40 CFR § 281.34 Release Reporting, Investigation, and Confirmation

The State has adopted the Federal regulations by ref erence and therefore meets the no less stringent criterion for Objective § 281.34.

40 CFR § 281.34(a)(1) The State has additional measures that meet the no less stringent criterion in IDAPA 58.01.02.851.01.b

, which requires owners and operators to repo rt suspected releases due to unusual operating conditions within twenty

- four (24) hours. IDAPA 58.01.24 establishes the standards and procedures to determine whether and what risk

- based corrective action measures should be applied to property subject to as sessment and cleanup requirements under IDAPA 58.01.02, Sections 851 and 852, “Water Quality Standards,” or when assessment and cleanup requirements are incorporated into compliance documents entered into per Chapter 1, Title 39, Idaho Code

. (Appendix A co ntains IDAPA 58.01.02 and IDAPA 58.01.24 in their entirety ) . These provisions are consistent with the purpose and intent of the Release Reporting, Investigation, and Confirmation requirements in the Code of Federal Regulations

.

40 CFR § 281.34(a)(2 ) ID APA 58.01.02.851.02 requires owners and operators to determine if the UST system is the source of off

- site impacts. IDAPA 58.01.07.200 requires owners or operators to report within ninety (90) days the source of the release. IDAPA 58.01.24 establishes the standards and procedures to determine whether and what risk

- based corrective action measures should be applied to property subject to assessment and cleanup requirements under IDAPA 58.01.02, Sections 851 and 852, “Water Quality Standards

, ” or when assess ment and cleanup requirements are incorporated into compliance documents entered into per Chapter 1, Title 39, Idaho Code. These provisions are consistent with the purpose and intent of the Release Reporting, Investigation, and Confirmation requirements i n the Code of Federal Regulations

.Application for Approval of Idaho’s UST Program

14 40 CFR § 281.34(b) IDAPA 58.01.02.851.01

. b requires owners and operators to report suspected releases due to unusual operating conditions within twenty

- four (24) hours. IDAPA 58.01.24 establishes the standards and pro cedures to determine whether and what risk

- based corrective action measures should be applied to property subject to assessment and cleanup requirements under IDAPA 58.01.02, Sections 851 and 852, “Water Quality Standards,” or when assessment and cleanup r equirements are incorporated into compliance documents entered into per Chapter 1, Title 39, Idaho Code. These provisions are consistent with the purpose and intent of the Release Reporting, Investigation, and Confirmation requirements in the Code of Fede ral Regulations

.

40 CFR § 281.34(c) IDAPA 58.01.02.851.04 requires owners and operators to contain and immediately clean up an above ground spill or overfill of petroleum only after identifying and mitigating any fire, explosion

, and vapor hazards. ID APA 58.01.24 establishes the standards and procedures to determine whether and what risk

- based corrective action measures should be applied to property subject to assessment and cleanup requirements under IDAPA 58.01.02, Sections 851 and 852, “Water Qualit y Standards,” or when assessment and cleanup requirements are incorporated into compliance documents entered into per Chapter 1, Title 39, Idaho Code. These provisions are consistent with the purpose and intent of the Release Reporting, Investigation, and Confirmation requirements in the Code of Federal Regulations

.Application for Approval of Idaho’s UST Program

15 Release Response and Corrective Action Objective 40 CFR § 281.35

The State must have requirements that ensure: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code)

(a) All relea ses from UST systems are promptly assessed and further releases are stopped; IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.02.852.01 (Effective 7

- 1

- 93); IDAPA 58.01.02.852.02 (Effective 7

- 1

- 93); IDAPA 58.01.02.852.03 (Effective 7

- 1

- 93); IDAPA 58. 01.24 ( E ffective 5

- 8

- 09) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)Application for Approval of Idaho’s UST Program

16 (b) Actions are taken to identify, contain and mitigate any immediate health and safety threats that are posed by a r elease (such activities include investigation and initiation of free product removal, if present); IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.02.852.01 (Effective 7

- 1

- 93); IDAPA 58.01.02.852.02 (Effective 7

- 1

- 93); IDAPA 58.01.02.852.03 (Effectiv e 7

- 1

- 93); IDAPA 58.01.02.852.04 (Effective 7

- 1

- 93) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)

(c) All releases from UST systems are investigated to determine if there are impacts on soi l and ground water, and any nearby surface waters. The extent of soil and ground

- water contamination must be delineated when a potential threat to human health and the environment exists. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.02.852.03 (Eff ective 7

- 1

- 93 ); IDAPA 58.01.02.852.05 (Effective 7

- 1

- 93 ); Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)Application for Approval of Idaho’s UST Program

17 (d) All releases from UST systems are cleaned up through soil and ground water remedi ation and any other steps, as necessary to protect human health and the environment; IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 58.01.02.852.06 (Effective 7

- 1

- 93); IDAPA 58.01.24.200 (Effective 5

- 8

- 09 ); IDAPA 58.01.24.300 (Effective 5

- 8

- 09); IDAPA 58. 01.24.400 (Effective 5

- 8

- 09) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)

(e) Adequate information is made available to the State to demonstrate that corrective actions are taken in accord ance with the requirements of (a) through (d) of this section. This information must be submitted in a timely manner that demonstrates its technical adequacy to protect human health and the environment; and IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08); IDAPA 5 8.01.02.852.06 (Effective 7

- 1

- 93); IDAPA 58.01.24 ( E ffective 5

- 8

- 09) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07); Idaho Code § 39

- 107(7) (Amended for effective date of July 1, 2000)

(f) In accordance with section 280.67, the State must notify the affecte d public of all confirmed releases requiring a plan for soil and ground water remediation, and upon request provide or make available information to inform the interested public of the nature of the release and the corrective measures planned or taken. IDA PA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)Application for Approval of Idaho’s UST Program

18 Notes on Objective 40 CFR § 281.35 Release Response and Corrective Action

The State has adopted the Federal regulations by reference and therefore meets the no less stringen t criterion for Objective § 281.35

.

40 CFR § 281.35 (a) IDAPA 58.01.02.852.01(b) requires owners and operators to take action to prevent further releases within twenty

- four (24) hours. IDAPA 58.01.02.852.02(a) requires owners and operators to remove the petroleum from the petroleum storage tank system to prevent further releases. IDAPA 58.01.02.852.03 requires owners and operators to perform a detailed site assessment. IDAPA 58.01.24 details Risk Based Corrective Action procedures.

40 CFR § 281.35 (b) IDAPA 58.01.02.852.01 requires owners and operators to take action to mitigate hazards and prevent further releases within twenty

- four (24) hours. IDAPA 58.01.02.852.02 requires owners and operators to remove the petroleum from the petroleum storage tank system to prevent further releases, continue monitoring and mitigating, and remedy hazards posed by contaminated soils. IDAPA 58.01.02.852.03 requires owners and operators to perform a detailed site assessment. IDAPA 58.01.02.852.04 requires owners and o perators to remove free product in a manner that is safe and minimizes the spread of contamination and provide the State with a detailed free product report. IDAPA 58.01.24 establishes the standards and procedures to determine whether and what risk

- based c orrective action measures should be applied to property subject to assessment and cleanup requirements under IDAPA 58.01.02, Sections 851 and 852, “Water Quality Standards,” or when assessment and cleanup requirements are incorporated into compliance docum ents entered into per Chapter 1, Title 39, Idaho Code.

40 CFR § 281.35 (c) IDAPA 58.01.02.852.03 requires owners and operators to perform a detailed site assessment. IDAPA 58.01.02.852.05 requires owners and operators to investigate the full extent and impacts of soil, groundwater

, and surface water contamination.

40 CFR § 281.35 (d) IDAPA 58.01.02.852.06 requires owners and operators to develop a corrective action plan that addresses the cleanup of the contamination. IDAPA 58.01.02.852.06 and IDAPA 58.01.02.852.07 allow the State to set a cleanup schedule through an enforcement mechanism. IDAPA 58.01.24 establishes the standards and procedures to determine whether and what risk

- based corrective action measures should be applied to property subject to assessment and cleanup requirements under IDAPA 58.01.02, Sections 851 and 852, “Water Quality Standards,” or when assessment and cleanup requirements are incorporated into compliance documents entered into per Chapter 1, Title 39, Idaho Code.Application for Approval of Idaho’s UST Program

19 40 CFR § 281.35 (e) IDAPA 58.01.02.852.06 requires owners and operators to develop and submit to the State a technical corrective action plan that addresses the cleanup of the soil, ground water, and/or surface water contamination. IDAPA 58.01.02.852.06 and IDA PA 58.01.02.852.07 allow the State to set a cleanup schedule through an enforcement mechanism. IDAPA 58.01.24 details Risk Based Corrective Action procedures.

40 CFR § 281.35 (f) The State has adopted the Federal regulations by reference and therefore me ets the no less stringent criterion for Objective 40 CFR § 281.3 5 ( f ).Application for Approval of Idaho’s UST Program

20 Out

- o f

- Service UST Sys tems a nd Closure Objective 40 CFR § 281.36

The State must have requirements that ensure UST systems conform with the following: State Rule Citation (IDAPA) Stat e Statutory

Citation (Idaho Code) (a) All new and existing UST systems temporarily closed must: (1) continue to comply with general operating requirements, release reporting and investigation, and release response and corrective action; (2) continue to c omply with release detection requirements if regulated substances are stored in the tank; (3) be closed off to outside access; and (4) be permanently closed if the UST system has not been protected from corrosion and has not been used in one year, unless t he State approves an extension after the owner and operator conducts a site assessment. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(b) All tanks and piping must be cleaned and permanently closed in a manner that eli minates the potential for safety hazards and future releases.

The owner or operator must notify the State of permanent UST system closures.

The site must also be assessed to determine if there are any present or were past releases, and if so, release respo nse and corrective action requirements must be complied with. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(c) All UST systems taken out of service before December 22, 1988, must permanently close in accordance with p aragraph (b) of this section when directed by the State. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.36 Out

- of Service UST Systems and Closures

The State has adopted the Federal regu lations by reference and therefore meets the no less stringent criterion for Objective § 281.36

.Application for Approval of Idaho’s UST Program

21 Financial Responsibility for UST s Containing Petroleum Objective 40 CFR § 281.37

(a) State requirements for financial responsibility must ensure that: State R ule Citation (IDAPA) State Statutory

Citation (Idaho Code) (1) owners and operators have $1 million per occurrence for corrective action and third

- party claims in a timely manner to protect human health and the environment; (2) owners and operators not e ngaged in petroleum production, refining, and marketing and who handle a throughput of 10,000 gallons of petroleum per month or less have $500,000 per occurrence for corrective action and third

party claims in a timely manner to protect human health and th e environment; (3) owners and operators of 1 to 100 petroleum USTs must have an annual aggregate of $1 million; and (4) owners and operators of 101 or more petroleum USTs must have an annual aggregate of $2 million. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(b) Phase

- in requirements. Financial responsibility requirements for petroleum UST systems must, at a minimum, be scheduled to be applied at all UST systems on an orderly schedule that completes a phase

- in of the financial responsibility requirements within the time allowed in the Federal regulations under 40 CFR § 280.91. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

(c) States may allow the use of a wide variety of financial assurance mechanisms to meet this requirement. Each financial mechanism must meet the following criteria: be valid and enforceable; be issued by a provider that is qualified or licensed in the State; not permit cancellation without allowing the State to d raw funds; ensure that funds will only and directly be used for corrective action and third

- party liability costs; and require that the provider notify the owner or operator of any circumstance that would impair or suspend coverage. IDAPA 58.01.07.004.01 ( Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)Application for Approval of Idaho’s UST Program

22 (d) States must require owners and operators to maintain records and demonstrate compliance with the State financial responsibility requirements, and these records must be made readily available when requested by the implementing agency. IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)

Notes on Objective 40 CFR § 281.37 Financial Responsibility for USTs Containing Petroleum

The State has adopted the Federal reg ulations by reference and therefore meets the no less stringent criterion for Objective § 281.37.Application for Approval of Idaho’s UST Program

23 Lender Liability Objective 40 CFR § 281.39

Notes on Objective 40 CFR § 281.3 9 Lender Liability

40 CFR § 281.39 is not applicable to the Idaho U ST program . Idaho does not have a security interest exemption for petroleum UST owner s or operators . Idaho’s UST program does not provide security interest exemption in the Idaho Underground Storage Tank Act, Title 39, Chapter 88, Idaho Code

, nor in “ Rule s Regulating Underground Storage Tanks, ” IDAPA 58.01.07. Idaho does have a lender liability provision that protects security interests for qualifying persons with indicia of ownership from liability under Idaho Land Remediation Act, Idaho Code § 39

- 7209 (A ppendix B)

, and “ Idaho Land Remediation Rules, ” IDAPA 58.01.18.026 (Appendix A) . This lender liability provision in the Land Remediation Act i s no less stringent than, and as broad in scope as, the federal program

, and it is analogous to provision s in the Comprehensive Environmental Re s ponse, Compensation, and Liability Act ( CERCLA ) and consistent with United States E nvironmental P rotection A gency policy ( 60 Federal Register 63517, dated December 11, 1995, as amended ) . This provision in the Land Remediatio n A ct and rules would not apply to liability arising under Idaho Underground Storage Tank Act, Title 39, Chapter 88, Idaho Code

, nor in the “ Rules Regulating Underground Storage Tanks, ” IDAPA 58.01.07.Application for Approval of Idaho’s UST Program

24 Legal Authorities for Compliance Monitoring Objectiv e 40 CFR § 281.40

The State must have the following specific compliance monitoring authorities: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code)

(a) Any authorized representative of the State engaged in compliance inspections, monitoring , and testing must have authority to obtain by request any information from an owner or operator with respect to the UST system(s) that is necessary to determine compliance with the regulations. IDAPA 58.01.07.400.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.400. 03 (Effective 4

- 2

- 08); IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 108 (Amended for effective date of July 1, 2000) ; Idaho Code § 39

- 8805 (Effective 5

- 23

- 07)

(b) Any authorized representative of the State must have authority to require an owner or operator to conduct monitoring or testing. IDAPA 58.01.07.400.03 (Effective 4

- 2

- 08); IDAPA 58.01.07.400.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.004.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 108 (Amended for effective date of July 1, 2000) ; Idaho Code § 39

- 8805 (Effective 5

- 23

- 07)Application for Approval of Idaho’s UST Program

25 (c) Authorized representatives must have the authority to enter any site or premises subject to UST system regulations or in which records relevant to the operation of the UST system(s) are kept, and to copy these records, ob tain samples of regulated substances, and inspect or conduct the monitoring or testing of UST system(s). IDAPA 58.01.07.400.01 (Effective 4

- 2

- 08); IDAPA 58.01.07.400.03 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 108 (Amended for effective date of July 1, 2000) ; I daho Code § 39

- 108(2)(b) (Amended for effective date of July 1, 2000)

Notes on Objective 40 CFR § 281.40 Legal Authorities for Compliance Monitoring

40 CFR § 281.40(a) Idaho Code § 39

- 108 provides the legal authority for the State to conduct an inspec tion program. IDAPA 58.01.07.400.01 authorizes the State to inspect UST systems. IDAPA 58.01.07.400.03 requires inspectors to look for records. IDAPA 58.01.07.004.01 references the adoption of the F ederal rules by reference and 40 CFR § 280.34(c) requir es owners and operators to make records immediately or readily available for inspection.

40 CFR § 281.40(b) IDAPA 58.01.07.400.0 1 authorizes the State to inspect the UST records related to monitoring and/or testing

. IDAPA 58.01.07.400.0 3 requires inspect ors to assess compliance with monitoring and testing. IDAPA 58.01.07.004.01 references the adoption of the F ederal rules by reference and 40 CFR §§ 280.31 and 280.40 require owners and operators to conduct monitoring and testing. Idaho Code § 39

- 108 prov ides various enforcement mechanisms to require monitoring or testing.

40 CFR § 281.40(c) IDAPA 58.01.07.400.01 authorizes the State to inspect USTs, their equipment, their records, and their contents. IDAPA 58.01.07.400.03 requires inspectors to inspect records and the monitoring and testing of the USTs. Idaho Code § 39

- 108 provides the legal authority for the State to enter any site or premises subject to UST system regulations.Application for Approval of Idaho’s UST Program

26 Legal Authorities for Enforcement Response Objective 40 CFR § 281.41

Th e State must have the following specific enforcement response authorities for State program approval: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (a) Any State agency administering a program must have the authority to implement the following remedies for violations of State program requirements: (1) To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity that is endangering or causing damage to public health or the environment; (2) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement; (3) To assess or sue to recover in court civil penalties as follows: (i) Civil penalties for failure to notify or for submitting false information pursuant to tank notification requirements must be capable of being assessed up to $5,000 or more per violation. (ii) Civil penalties for failure to comply with any State requirements or standards for existing or new tank systems must be capable of being assessed for each instance of violation, up to $5,000 or more for each tank for each day of violation. If the violation is continuous, civil penalties shall be capable of being assessed up to $5,000 or more for each day of violation. Idaho Code § 39

- 8811 ( Amended for

e ffective date of March 8, 2011 ); Idaho Code § 39

- 108 (Amended for effective date of July 1, 2000) ; Idaho code § 39

- 109 (Amended for effective date of July 1, 2000)

Notes on Objective 40 CFR § 281.41 Legal Authorities for Enforcement Response

Idaho Code § 39

- 8811 provides that failure to comply with the Underground Storage Tank Act, Title 39, Chapter 88, Idaho Code, or the “ Rules Regulating Underground Storage Tank Systems, ” IDAPA 58.01.07, shall be subjec t to enforcement pursuant to the enforcement provision of the Idaho Environmental Protection and Health Act, Idaho Code § 39

- 108

, and monetary penalties pursuant to Idaho Code § 39

- 8811 (Appendix B)

. Idaho Code § 39

- 108 of the Idaho Environmental Protectio n and Health Act, provides broad legal authority for the Director to investigate, inspect, enter property, assessApplication for Approval of Idaho’s UST Program

27 violations, commence enforcement, assess penalties

, seek injunctive relief

, and bring civil enforcement actions

. Idaho Code § 39

- 8811 provides for monetary penalties as follows:

 Anyone who has been determined in a civil enforcement action to have failed to comply with tank notification requirements, or to have submitted false information pursuant to tank notification requirements

, shall be liab le for penalties of up to $5,000 per violation.

 Anyone who has been determined in a civil enforcement action to have failed to comply with any provisions of the Idaho Underground Storage Tank Act or rules promulgated pursuant to the U nderground S torage T ank C ompliance A ct

, or any order entered related to such violation, for existing or new tank systems, shall be liable for penalties of up to $5,000 for each tank for each day of violation. If the violation is continuous, the violator shall be liable for
pe nalties of up to $5,000 for each day of violation. Idaho Code § 39

- 109 provides that u pon request of the D irector, it shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in Idaho Code § 39

- 108 and to prosecute actions or proceedings for the enforcement of any criminal provisions.

40 CFR § 281.41(a)(1) Idaho Code § 39

- 108(8) provides that i f there is an emergency that creates conditions of imminent and substantial danger to public health or the environment, the prosecuting attorney or the attorney general may institute a civil action for an immediate injunction to halt any activities creating such c ondition. Further

, Idaho Code § 39

- 109 provides for authority to institute and prosecute civil enforcement actions or injunctive actions as provided in Idaho Code § 39

- 108 a nd to prosecute actions or proceedings for the enforcement of any criminal provisions.

40 CFR § 281.41(a)(2) Idaho Code § 39

- 108(3)(b) provides that c ivil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred.

40 CFR § 281.41(a)(3)(i) and 40 CFR § 281.41(a)(3)(ii) Idaho Code § 39

- 8811 mirrors the language and penalty assessment in 40 CFR § 281.41 (a)(3)(i) and (ii).Application for Approval of Idaho’s UST Program

28 Public Participation i n Enforcement Proceedings Obj ective 40 CFR § 281.42 Any State administering a program must provide for public participation in the State enforcement process by providing any one of the following three options: State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (a) Aut hority that allows intervention analogous to Federal Rule 24(a)(2), and assurance by the appropriate State enforcement agency that it will not oppose intervention under the State analogue to Rule 24(a)(2) on the ground that the applicant's interest is adeq uately represented by the State. Idaho Rules of Civil Procedures (I.R.C.P. 24(a)).

Notes on Objective 40 CFR § 281.42 Public Participation in Enforcement Proceedings

In a civil action, anyone having an interest that is or may be adversely affected may seek intervention of right pursuant to Idaho Rules of Civil Procedures (IRCP) Rule 24(a) (Appendix C )

. The State also assures that it will not oppose intervention under IRCP 24(a) on the grounds that the applicant’s interest is adequately represented by t he State.

Idaho has provided opportunity for public notice and comment for development of the UST program through the negotiated rulemaking process

.Application for Approval of Idaho’s UST Program

29 Underground Storage Tank Compliance Act f rom Energy Policy Act o f 2005

— Inspection Requirements Objecti ve: 9005(c)(1), 9005(c)(2) of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991d)

Section 1523 of the Energy Policy Act of 2005 Grant Guidelines t

o States for Implementing the Inspection Provisions of the Energy Policy Act of 2005
State Rule Citati on (IDAPA) State Statutory

Citation (Idaho Code) (a) Underground storage tanks that have not been inspected since December 22, 1998 must have an on

- site inspection conducted not later than August 8, 2007 to determine compliance with Subtitle I and 40 CFR 280 requirements or requirements or standards of a state program developed under Section 9004. Idaho Code § 39

- 8808(1) (Effective 2

- 23

- 07)

(b) On

- site inspections of each underground storage tank must be conducted at least once every three years to det ermine co mpliance with Subtitle I and 40 CFR 280 requirements or requirements or standards of a state program developed under Section 9004. Idaho Code § 39

- 8808(2) (Effective 2

- 23

- 07)

(c) At a minimum, an on

- site inspection must assess compliance with t he following:

• Notification (failure to notify)

• Corrosion protection

- tanks and piping have appropriate corrosion protection

- documentation available including testing, inspections, and other records

• Overfill prevention in place and operational

• Sp ill prevention in place and operational

• Tank and piping release detection

- appropriate method and appropriate equipment or procedures in place

- documentation of proper monitoring and testing

• Reporting suspected releases

• Records of tank and piping r epairs

• Secondary containment where required

• Financial responsibility

• Temporary closure IDAPA 58.01.07.400.03 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8805 (Effective 5

- 23

- 07)Application for Approval of Idaho’s UST Program

30 Notes on Objective from the Underground Storage Tank Compliance Act from Energ y Policy Act of 2005 for Inspection Requirements, 9005(c)(1), 9005(c)(2) of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991d), Section 1523 of the Energy Policy Act of 2005

EPA has not yet established stringency criteria in 40 CFR Part 281 for En ergy Policy Act requirements. The State has adopted the requirements of this o bjective in the statutory language of Idaho Code § 39

- 8808(1)(2) and it should meet the no less stringent criterion for the Inspection Requirements Objective once it has been es tablished by EPA

. A Department inspector , pursuant to IDAPA 58.01.07.400.03, will assess compliance with the following:

 Notification

 Corrosion protection

 Overfill prevention in place and operational

 Spill prevention in place and operational

 Tank and pip ing release detection

 Reporting suspected releases

 Records of tank and piping repairs

 Secondary containment where required

 Financial responsibility

 Temporary closure An inspection will be conducted at least once every three years and all inspections will b e conducted on

- site.Application for Approval of Idaho’s UST Program

31 Underground Storage Tank Compliance Act f rom Energy Policy Act of 2005

— Operator Training Objective: 9010 of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991i(a))

Section 1524 of the Energy Policy Act of 2005 Grant Guidelines to States for Implementing the Op erator Training Provisions of t he Energy Policy Act of 2005

State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (a) The operator training program shall appropriately train the following classes of operato rs:

 Persons having primary responsibility for on

- site operation and maintenance of underground storage tank systems.

 Persons having daily on

- site responsibility for the operation and maintenance of underground storage tank systems.

 Daily , on

- site employe es having primary responsibility for addressing emergencies presented by a spill or release from an underground storage tank system. IDAPA 58.01.07.300.03 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)

(b) The operator training program shal l be consistent with 42 U.S.C. 6991i(a) IDAPA 58.01.07.300.01(a) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)
(c) The operator training program shall be developed in cooperation with tank owners and operators IDAPA 58.01.07.300.01(b) (Effe ctive 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)
(d) The operator training program shall take into consideration training programs implemented by tank owners and operators as of August 8, 2005 IDAPA 58.01.07.300.01(c) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)
(e) The operator training program shall be appropriately communicated to tank owners and operators IDAPA 58.01.07.300.01(e) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)
(f) All persons subject to the operato r training requirements must meet the state

- specific training requirements IDAPA 58.01.07.300.03 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)Application for Approval of Idaho’s UST Program

32 (g) All persons subject to the operator training requirements must repeat applicable requirement s if the tank for which they have primary daily on

- site management responsibilities is determined to be out of compliance with a requirement or standard of 40 CFR 280 or a requirement or standard of a state program approved under Section 9004. IDAPA 58.01 .07.300.03(c) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)

(h) States must establish a procedure to identify individuals who are required to meet the operator training requirements IDAPA 58.01.07.300.02 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8807 (Effective 2

- 23

- 07)

Notes on Objective from the Underground Storage Tank Compliance Act from Energy Policy Act of 2005 for Operator Training, 9010 of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991i(a)) Section 1524 of the Energy Policy Ac t of 2005

EPA has not yet established stringency criteria in 40 CFR Part 281 for Energy Policy Act requirements. The State has adopted the requirements of this o bjective in the statutory language of Idaho Code § 39

- 8807 and the rule language of IDAPA 58. 01.07.300.01

. T hese provisions substantially meet the requirements described by EPA in the Operator Training Grant Guidelines

, and they will likely meet the no less stringent criteria for the Operator Training Objective once they are established by EPA . S pecifically

, IDAPA 58.01.07.300.03(c) requires owners and operators to repeat the training within 30 days of being out of compliance. IDAPA 58.01.07.300.02 requires owners and operators to notify the Department in writing within 30 days of the designation of operators . IDAPA 58.01.07.300.04 requires unattended sites have a sign posted in a location visible from the dispensers indicating emergency shut

- off procedures and emergency contact phone numbers.

The State’s o perator t raining program can be found in full in the U nderground S torage T

ank Program Implementation Manual in Appendix E

, but it generally consist s of the following:

 The training will be provided at no

- cost

.

 The training will be conducted at the owner or operator’s UST site.

 The owner or oper ator must designate a c lass A, c lass B, and c lass C o perator. The c lass A and c lass B o perators must be reported to the Department within 30 days of the designation and then be trained according to their class.

o Class A o perator

— has primary responsibility for the UST system (i.e.

, the owner)

o Class B o perator

— has daily on

- site responsibility for the UST system (i.e.

, the manager)

o Class C o perator

— has daily on

- site responsibility for addressin g UST emergencies (i.e.

, the clerk)Application for Approval of Idaho’s UST Program

33  The c lass A or B o perator may t rain the c lass C o perator.

 The trained operators must repeat the training within 30 days if the UST system that they have responsibility for is out of compliance.

 Unattended or unmanned sites simply need a sign in a visible location indicating emergency sh ut

- off procedures and contact information.Application for Approval of Idaho’s UST Program

34 Underground Storage Tank Compliance Act f rom Energy Policy Act of 2005

— Public R e cord Objective: 9002(d) of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991a)

Section 1526 of the Energy Policy Act of 2005 Grant Guidelines to States for Implementing the Public Record Provisions of the Energy Policy Act of 2005

State Rule Citation (IDAPA) State Statutory Citation (Idaho Code) (a) The public record of a state must include:

 The number, sources, and causes of underground storage tank releases in the state.

 The record of compliance by underground storage tanks in the state with Subtitle I or a state program approved under Section 9004 of Subtitle I.

 Data on the number of underground storage tank equipment f ailures in the state. IDAPA 58.01.07.200.01(a)(i) (Effective 4

- 2

- 08); IDAPA 58.01.07.200.01(a)( i i) (Effective 4

- 2

- 08); IDAPA 58.01.07.600.01 (Effective 4

- 2

- 08) Idaho Code § 39

- 8810 (Effective 2

- 23

- 07)

(b) The State must update the public record at leas t annually IDAPA 58.01.07.600.01 (Effective 4

- 2

- 08) Idaho Code § 39

- 8810 (Effective 2

- 23

- 07) (c) Each state must develop a web site that does one of the following:

 The public record is posted on or downloadable from the internet. This option may be an interactive web site that retrieves the information, a web site that lists the information, or a file that is downloadable in electronic format.

 The web site describes how to receive an electronic copy of the public record (for example via e

- mail). IDAPA 58.01.07.600.04 (Effective 4

- 2

- 08) Idaho Code § 39

- 8810 (Effective 2

- 23

- 07)Application for Approval of Idaho’s UST Program

35 Notes on Objective from the Underground Storage Tank Compliance Act from Energy Policy Act of 2005 for t he Public Record Provisions, 9002(d) of the Solid Waste Disposal Act, S ubtitle I (42 U.S.C. 6991a), Section 1526 of the Energy Policy Act of 2005

EPA has not yet established stringency criteria in 40 CFR Part 281 for Energy Policy Act requirements. The State has adopted the requirements of this o bjective in the statutory l anguage of Idaho Code § 39

- 8810 and the rule language of IDAPA 58.01.07.200.01 and IDAPA 58.01.07.600

. T hese provisions should meet the no less stringent criterion for the Public Record Provisions Objective once it has been established by EPA . Specificall y , IDAPA 58.01.07.200.04 requires the reporting of the source and cause of a confirmed release to occur within 90 days of confirming the release. IDAPA 58.01.07.600.01 requires the State to update the public record at least quarterly. IDAPA 58.01.07.600.03 allows for the public to petition the State to correct any inaccurate information and the State shall correct any inaccurate information within 30 days after verification. The database is available on the Department’s website at www.deq.idaho.gov/applications/ust

- lust

.Application for Approval of Idaho’s UST Program

36 Underground Storage Tank Compliance Act f rom Energy Policy Act of 2005

— Delivery Prohibition Objective: 9012 of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991)

Secti on 1527 of the Energy Policy Act of 2005 Grant Guidelines to States for Implementing the Delivery Prohibition Provisions of the Energy Policy Act of 2005

State Rule Citation (IDAPA) State Statutory

Citation (Idaho Code) (a) The State must prohibit the de livery, deposit, or acceptance of product to an underground storage tank that has been determined to be ineligible by the State for such delivery, deposit, or acceptance IDAPA 58.01.07.500.01 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)
(b ) The State must develop criteria for determining which underground storage tanks are ineligible for delivery, deposit, or acceptance of product; IDAPA 58.01.07.500.02 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07) (c) The State must develop a process for reclassifying ineligible underground storage tanks as eligible for delivery, deposit, or acceptance of product; IDAPA 58.01.07.500.08 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07) (d) The State must develop a process for prov iding adequate notice to underground storage tank owners and operators and product deliverers that an underground storage tank has been determined to be ineligible for delivery, deposit, or acceptance of product; IDAPA 58.01.07.500.04 (Effective 4

- 2

- 08) I daho Code

§ 39

- 8809 (Effective 2

- 23

- 07)

(e) The State must delineate a process for the application of delivery prohibition in rural and remote areas. IDAPA 58.01.07.500.09 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)Application for Approval of Idaho’s UST Program

37 (f) A State must cl assify an underground storage tank as ineligible for delivery, deposit, or acceptance of product as soon as practicable after the state determines an underground storage tank meets one or more of the following conditions:

• Required spill prevention equipm ent is not installed;

• Required overfill protection equipment is not installed;

• Required leak detection equipment is not installed;

• Required corrosion protection equipment is not installed; or

• Other conditions a state deems appropriate. IDAPA 58.01. 07.500.02 (Effective 4

- 2

- 08); IDAPA 58.01.07.500.02(a) (Effective 4

- 2

- 08); IDAPA 58.01.07.500.02(b) (Effective 4

- 2

- 08); IDAPA 58.01.07.500.02(c) (Effective 4

- 2

- 08); IDAPA 58.01.07.500.02(d) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)

(g) A State should also classify an underground storage tank as ineligible for delivery, deposit, or acceptance of product if the owner/operator of that tank has been issued a written warning or citation (notice of violation or other form indicating a violatio n) under any of the following circumstances and the owner/operator has failed to take corrective action after a reasonable time frame that is determined by the state:

• Failure to properly operate and/or maintain leak detection equipment;

• Failure to prop erly operate and/or maintain spill, overfill, or corrosion protection equipment;

• Failure to maintain financial responsibility;

• Failure to protect a buried metal flexible connector from corrosion; or

• Other conditions a state deems appropriate. IDAPA 5 8.01.07.500.03 (Effective 4

- 2

- 08); IDAPA 58.01.07.500.03(a) (Effective 4

- 2

- 08); IDAPA 58.01.07.500.03(b) (Effective 4

- 2

- 08); IDAPA 58.01.07.500.03(c) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)

(h) The State, after notification by the own er/operator that the violation(s) has/have been corrected, must do the following as soon as practicable:

• Confirm compliance. If any deficiencies that led to the delivery prohibition remain, the state must notify the owner/operator.

• Return the undergrou nd storage tank to being eligible to receive product if the violation(s) has/have been corrected and confirmed by the state. IDAPA 58.01.07.500.08 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)Application for Approval of Idaho’s UST Program

38 (i) T he State must make a reasonable effort to notify tank owners and/or operators in writing (e.g., field notification, mail, e

- mail, or fax) prior to prohibiting the delivery, deposit, or acceptance of product. If an owner or operator is not present at the facility at the time the underground storage tank is identified as ineligible, an employee at the facility at the time of identification (in lieu of the owner or operator) may be notified in writing prior to prohibiting delivery. IDAPA 58.01.07.500.04 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effect ive 2

- 23

- 07)

(j) The State must develop processes and procedures for notifying product deliverers when an underground storage tank is ineligible for delivery, deposit, or acceptance of product. The mechanism a state chooses for identifying eligible/inelig ible underground storage tanks (e.g., green tags, red tags) may provide adequate notice to product deliverers. IDAPA 58.01.07.500.05 (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)

(k) The State may only defer application of del ivery prohibit ion for up to 180 days after determining an underground storage tank is ineligible for delivery, deposit, or acceptance of product. IDAPA 58.01.07.500.09(a) (Effective 4

- 2

- 08) Idaho Code

§ 39

- 8809 (Effective 2

- 23

- 07)

Notes on Objective from the Undergro und Storage Tank Compliance Act from Energy Policy Act of 2005 for Delivery Prohibition
, 9012 of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991), Section 1527 of the Energy Policy Act of 2005

EPA has not yet established stringency criteria in 40 CFR Part 281 for Energy Policy Act requirements. The State has adopted the requirements of this o bjective in the statutory language of Idaho Code § 39

- 8809 and IDAPA 58.01.07.500

. T hese provisions should meet the no less stringent criterion for the Deliv ery Prohibition Objective once it has been established by EPA . Specifically

, IDAPA 58.01.07.500.06 requires the written notice to include the following : (a) T he specific reasons or violations that led to the ineligible classification (b) A statement notif ying the owner and operator that the petroleum underground storage tank is ineligible for delivery and it is unlawful for any person to deliver to, deposit into, or accept a regulated petroleum substance into the petroleum underground storage tank (c) T he effective date the petroleum underground storage tank is deemed ineligible for delivery (d) T he name and address of the department representative to whom a written request for re

- inspection can be made, if a re

- inspection is necessaryApplication for Approval of Idaho’s UST Program

39 (e) A statement regar ding the right to appeal the State’s action regarding ineligible classification pursuant to IDAPA 58.01.23

, “Rules of Administrative Procedure b efore the Board of Environmental Quality” (f) T he option to request a compliance conference pursuant to Subsecti on 500.07

IDAPA 58.01.07.500.07 allows for a compliance conference if the owner or operator disagrees with the delivery prohibition. IDAPA 58.01.07.500.11 says a person shall not be in violation of delivery prohibition if the State fails to provide the no tice required in IDAPA 58.01.07.500.04 and IDAPA 58.01.07.500.05. IDAPA 58.01.07.500.12 says it is unlawful for any person to tamper with and/or remove the delivery prohibition/red tag without the State’s approval.

The State’s d elivery p rohibition require ments can be found in the U nderground S torage T

ank Program Implementation Manual ( Appendix E )

.Application for Approval of Idaho’s UST Program

40 Underground Storage Tank Compliance Act f rom Energy Policy Act of 2005

— Additional Measures to Protect Groundwater Objective: 9003 of the Solid Waste Disposal A ct, Subtitle I (42 U.S.C. 6991b)

Section 1530 of the Energy Policy Act of 2005 Grant Guidelines to States for Implementing the Secondary Containment Provisions of the Energy Policy Act of 2005

State Rule Citation (IDAPA) State Statutory

Citation (Idaho C ode) (a) Each new or replaced underground tank, or piping connected to any such new or replaced tank, that is within 1,000 feet of any existing community water system or any existing potable drinking water well must be secondarily contained and monitored for leaks. IDAPA 58.01.07.100.03(a) (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)

(b) In the case of a replacement of an existing underground tank or existing piping connected to the underground tank, the secondary containment and monitori ng shall apply only to the specific underground tank or piping being replaced, not to other underground tanks and connected pipes comprising such system. IDAPA 58.01.07.100.03(d) (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)

(c) Each new mo tor fuel dispenser system installed within 1,000 feet of any existing community water system or any existing potable drinking water well must have under

- dispenser containment. IDAPA 58.01.07.100.03(e) (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 2 3

- 07) (d) At a minimum, secondary containment systems be designed, constructed, and installed to:

• Contain regulated substances released from the tank system until they are detected and removed,

• Prevent the release of regulated substances to the enviro nment at any time during the operational life of the underground storage tank system, and

• Be checked for evidence of a release at least every 30 days. IDAPA 58.01.07.100.03(a) (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)

(e) Interstitial monitoring must meet the requirements of 40 CFR 280.43(g). IDAPA 58.01.07. 010.20 (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)Application for Approval of Idaho’s UST Program

41 (f) If a new underground storage tank facility will be installed that is not within 1,000 feet of any existing c ommunity water system or any existing potable drinking water well and the owner will install a potable drinking water well at the new facility that is within 1,000 feet of the underground tanks, piping, or motor fuel dispenser systems as part of the new

un derground storage tank facility installation, then secondary containment and under

- dispenser containment are required, regardless of whether the well is installed before or after the underground tanks, piping, and motor fuel dispenser systems are installed

. IDAPA 58.01.07.100.03(b) (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)

(g) To determine if a new or replaced underground tank or piping or new motor fuel dispenser system is within 1,000 feet of any existing community water system or any existing potable drinking water well, at a minimum the distance must be measured from the closest part of the new or replaced underground tank or piping or new motor fuel dispenser system to:

• The closest part of the nearest existing community water syste m, including such components as:

- The location of the wellhead(s) for groundwater and/or the location of the intake point(s) for surface water;

- Water lines, processing tanks, and water storage tanks; and

- Water distribution/service lines under the cont rol of the community water system operator.

- The wellhead of the nearest existing potable drinking water well. IDAPA 58.01.07.100.03(a) (Effective 4

- 2

- 08); IDAPA 58.01.07.010.02 (Effective 4

- 2

- 08); IDAPA 58.01.07.010.16 (Effective 4

- 2

- 08); IDAPA 58.01.07. 010.14 (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)

(h) States must have a system in place for determining when new or replaced underground tanks or piping or new motor fuel dispenser systems are not within 1,000 feet of any existing commu nity water system or any existing potable drinking water well. IDAPA 58.01.07.100.03(c) (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)

(i) States must have a system in place so they will know that secondary containment and under

- dispenser co ntainment are installed where required by these guidelines. IDAPA 58.01.07.100.01 (Effective 4

- 2

- 08) Idaho Code § 39

- 8806 (Effective 2

- 23

- 07)Application for Approval of Idaho’s UST Program

42 Notes on Objective from the Underground Storage Tank Compliance Act from Energy Policy Act of 2005 for Additi onal Measures to Protect Groundwater , 9012 of the Solid Waste Disposal Act, Subtitle I (42 U.S.C. 6991b) Section 1530 of the Energy Policy Act of 2005

EPA has not yet established stringency criteria in 40 CFR Part 281 for Energy Policy Act requirements. The State has adopted the requirements of this o bjective in the statutory language of Idaho Code § 39

- 8806 and the rule language of IDAPA 58.01.07.100

. T hese provisions should meet the no less stringent criterion for the Additional Measures to Protect Grou ndwater Objective once it has been established by EPA . Specifically

, IDAPA 58.01.07.100.01(a) requires an owner, operator, or designee to notify the State 30 days prior to installing a new piping system or a new or replacement petroleum underground storag e tank. IDAPA 58.01.07.100.01(b) requires an owner, operator, or designee notify the State 24 hours prior to the installation of a replacement piping system. The State has adopted the definitions in the Grant Guidelines To States For Implementing The Sec ondary Containment Provisions Of The Energy Policy Act of 2005 in IDAPA 58.01.07.010

.Application for Approval of Idaho’s UST Program

43 

## Demonstration of Adequate Enforcement Procedures

A. Procedures f or Compliance Monitoring
1. Identifying t he Regulated Community / Facility Notification a nd Identi fication The Department of Environmental Quality ’s (Department ’s ) authorities require that any owner or operator intending to install a regulated u nderground s torage t ank (UST) system notify the Department 30 days prior to installing the UST system using t he Department’s version of U.S. Environmental Protection (EPA) form 7530

- 1, “ Notification for Underground Storage Tanks ” (Appendix D ). In the event of replacement piping, 24

- hour advance notification is required. The form can easily be obtained through t he Department’s website, fax, email, or mail services, or by calling during normal Department business hours. At the time of this application, the Department’s UST program does not accept electronic submittals as described in 40 CFR Part 3.

Once the UST s ystem is installed, Department authorities require all owners or operators of regulated USTs to notify the Department within 30 days of bringing the system into use. Notification must be done on the Department’s notification form (Appendix D ) . This notif ication requires submission of a site diagram depicting the location and layout of the UST system. It also requires notification of secondary containment for those systems installed within 1,000 feet of a potable drinking water source. In comparison with EPA form 7530

- 1, the Department’s version includes more notification options and sections for release detection methods, corrosion systems, tank and piping materials, and fuel substances. The Department’s form also specifically identifies the three types of overfill equipment. The Department encourages and trains UST owners and operators to notify the Department if there are any facility changes such as an ownership change, new equipment, new release detection method, or any other change affecting the UST system. A change in service is considered a permanent closure and the Department requires notification 30 days prior to the change in service using the Department’s notification form. Once the change in service has occurred, the Department encourages the owner or operator to again submit the form to identify the exact change in service dates. The owner or operator is required to perform a site assessment and submit the report to the Department. Occasionally, existing regulated but unregistered UST system s are discovered through property transactions, anonymous citizen tips, or Department UST inspectors. In those circumstances, the Department contact s the property owner and require s immediate notification. The Department will take enforcement actions if the newly discovered tank does not me e t the upgrade requirements. The Department is continuously providing technical assistance to new or potential owners and makes every effort to tell current owners and operators thatApplication for Approval of Idaho’s UST Program

44 if they sell their property

, they n eed to inform the new purchaser of his or her UST obligations, including notification.

2. Record Review The Department believes the best way to achieve a high compliance rate is to educate the owners and operators on proper record keeping. The Departmen t provides detailed record keeping training through its operator training program. Each facility receives a 2

- inch record

- keeping compliance binder, and the inspector assembles the binder in the field with the site

- specific tabs the owner and/or operator needs. Owners and operators are encouraged to put their records behind the appropriate tab. The binder also includes tabs for recommended practices, such as saving installation invoices. The Department requires owners or operators to notify the Departmen t on the Department’s notification form for the following activities:

 Intention to install a new or replacement tank and/or piping (30 days prior notice)

 Bringing a new or replacement tank and/or piping into use (within 30 days)

 Intention to close a n UST s ystem or do a change in service (30 days prior notice) The Department recommends that owners or operators notify the Department using the Department’s notification form for the following activities:

 Ownership changes

 Equipment changes

 Release detection met hod changes

 Manager/operator changes

 Fuel substance changes

 Repairs

 After a n UST system closure

 Temporary closures

 New insurance mechanism In addition to the above notifications, the Department requires the facility owner to designate and notify the Depart ment within 30 days of designating c lass A and

c lass B operator(s). When the designated and Department

- trained c lass A and

c lass B operator s train replacement c lass A and c lass B operators, the training operator is required to submit to the Department the “ Operator Training Certification Form ” (Appendix F ). The Department has created its own forms for recording cathodic protection, line tightness, and line leak detector testing results (Appendix G ). The forms are posted on the Department’s website.

Ow ners and operators are required to provide their compliance records during an inspection or have documents readily available at an alternative site to be provided to the inspector upon request. If the owner or operator cannot provide the records upon requ est, the facility is subject to enforcement action(s).Application for Approval of Idaho’s UST Program

45 If there is a suspected release from a n UST system, the owner or operator is required to notify the Department within 24 hours. The owner or operator then ha s 7 days to investigate and confirm the rel ease. If there is a confirmed release from the UST system, the owner or operator has 45 days to perform a site characterization and risk evaluation. Within 90 days from the confirmed release date, the owner/operator is required to report the cause and th e source of the release on the “ Underground Storage Tank Release Reporting Form ” ( Appendix H ). If the results of the approved site characterization and risk evaluation process indicate that corrective action is required, a corrective action plan must be d eveloped and submitted to the Department within 60 days of the Department’s approval. All forms are available on the Department’s website. To assist the Department in achieving a high level of reporting by owners and operators, the Department communicates with the Idaho Petroleum Marketers and Convenience Store Association, Idaho Petroleum Storage Tank Fund, Idaho Association of Realtors, Idaho F ire M arshal, Idaho State Department of Agriculture, Idaho Small Business Association, Idaho Reuse Brownfields Co alition, and the Department’s internal program staff. These organizations and local agencies have received program literature, such as “ Musts for USTs ,” to hand out to interested tank owners. The Department attends the annual Idaho Petroleum Marketers and Convenience Store Association trade show, where an entire booth is dedicated to current UST issues. In addition, the Department prepares mass mailings as often as necessary on important issues such as new rule changes, frequent inspection concerns, UST eq uipment recalls, and anything else affecting UST systems. See Appendix I for examples of Department mailings. If an owner or operator fails to submit the required documents for Departmental review, the Department may initiate enforcement. The Department has developed a tiered enforcement approach

, which is explained in the UST program implementation manual (Appendix E ) and below in Part B, Procedures for Enforcement Response. 3. Inspections The Department believes the best way to achieve high compliance rates is to educate owners and operators. The Department not only conducts inspections to assess compliance but also trains the owners and operators. Owners and operators are encouraged to call their local inspector as often as they need to get their comp liance questions answered. The Department utilizes a periodic and random inspection program. When this inspection program identifies facilities with compliance challenges, the Department increases its inspection frequencies accordingly. The Department ha s statutory authority to enter and inspect UST facilities. Consistent with the UST Compliance Act of 2005, each facility is required to be inspected every 3 years. The Department makes sure each facility is inspected every 3 years byApplication for Approval of Idaho’s UST Program

46 keeping an electroni c report in the UST/LUST database that lists the last date each facility was inspected . The inspectors use this report when scheduling UST facility inspections. The report lists the facility with the oldest inspection date first so that it is visited bef ore those facilities with a more recent inspection date. This strategy allows for a systematic and consistent method for inspectors to schedule inspections. Inspectors also attend all UST installations and closures that the Department has been notified ab out . Owners and operators are required to notify the Department 30 days prior to a new installation or a closure on the Department’s notification form. The form is turned in to the Department’s state office, which then contacts the local regional inspect or and informs him or her that an installation or closure is occurring. The form stipulates that if the dates change, the Department must be notified. The Department UST inspector also takes Global Positioning System (GPS) coordinates of the site at the time of installation ; that information is entered into the Department’s UST/LUST database. New Department inspectors are trained by the Department’s state office. The training includes researching Department and EPA literature on USTs , reviewing Departm ent and EPA records, receiving instruction on the UST/LUST database, and attending meetings with other inspectors. The new inspector then spends time with experienced UST staff conducting on

- site inspections. New inspectors undergo a dditional trainings w ith other experienced inspectors to help maintain consistency amongst the inspectors. The inspectors use an electronic inspection application when conducting UST inspections (Appendix J ). Inspectors are required to document and take photographs of the UST facility if violations are encountered to aid in any potential enforcement proceedings. In addition to photographs, the inspectors are required to take the latitude and longitude of each UST facility. The geographic coordinates of all UST facilities are recorded in the Department’s UST/LUST database. If a new UST site goes into operation, the local UST inspector attends the installation and takes the latitude and longitude coordinates at that time. Inspectors are encouraged to conduct the UST insp ection in a manner that is efficient to them, but the general procedure consists of the following steps:

1. Schedule a convenient time with the owner and/or operator. T ell the owner and/or operator that the training and inspection will require 4 hours of uni nterrupted time. T ell the owner and/or operator which documents to have ready and to have dispenser keys and any locked sumps and fill pipes unlocked. 2. Give the owner and/or operator a reminder call the day before the inspection. 3. Once on

- site, start with i ntroductions and show inspector credentials (Appendix K ). 4. Ask the owner and/or operator for the facility records and review them to get an idea of what to expect when conducting the physical inspection.Application for Approval of Idaho’s UST Program

47 5. After the records review, begin the training by leadi ng the owner and/or operator through the physical inspection. S how the owner and/or operator all of the equipment at the UST facility, including equipment that is not regulated, such as dispensers. T rain the owner and/or operator on this equipment. 6. After the physical inspection, verbally go over any compliance issues. 7. Print out a site

- specific facility management plan, which lists the equipment at the facility and what needs to be done with that equipment to achieve or maintain compliance. It also lists recommended practices. The owner and/or operator can use the management plan to conduct his or her own inspections/audits on a more frequent basis. An example management plan can be found in Appendix L . Review the management plan with the owner and/or o perator. 8. Provide the owner and/or operator with a record

- keeping binder that contains operation and maintenance information on the site

- specific equipment as well as places to store records. 9. Provide t he owner and/or operator with the operator quiz , which tests understanding of the records and equipment at the owner/operator’s specific facility. If the owner or operator passes the quiz, he or she becomes a certified operator and receive s a certificate. If he or she fail s , retrain ing will take place until he or she can pass. 10. Conclude the inspection with a compliance discussion. If there are compliance deficiencies, issue a warning or notice of violation(s) depending on the nature of the deficiency. For those facilities where Department inspectors indenti fied ongoing compliance challenges, the Department conducts inspections more often than every 3 years. Each inspector determines which facilities need additional support and maintains lists and schedules for these facilities. For example, some facilities are located on Idaho’s Rathdrum Prairie sole source aquifer and may receive more frequent inspections due to the sensitivity of this water supply. Inspectors will return to the facility as often as needed to make sure the appropriate records are being ke pt. If periodic, random, or frequent inspections are not achieving the required compliance level, the Department has the capacity to initiate enforcement. The Department has developed a tiered enforcement approach, which is explained in the UST program implementation manual (Appendix E ) and below in Part B, Procedures for Enforcement Response. 4. Public Reporting The Department’s website lists the contact information for the two central UST staff on the UST/LUST homepage ( www.deq.idaho.gov/storage

- tanks ). The website encourages the public to call with any questions and to call for any suspected releases. It is the Department’s policy to respond to any citizen complaint. As stated in each facility’ s management plan, the regulated public is directed to call the Department’s regional inspector to report suspected releases andApplication for Approval of Idaho’s UST Program

48 potential violations. Each facility receives a management plan and one

- on

- one site

- specific training on the plan. The Departme nt communicates with, among others, the Idaho Petroleum Marketers and Convenience Store Association, Idaho Petroleum Storage Tank Fund, Idaho Association of Realtors, Idaho F ire M arshall, Idaho State Department of Agriculture, Idaho Small Business Associat ion, Idaho Reuse Brownfields Coalition, individual owners and operators, and the Department’s internal program staff. The Department attends the annual Idaho Petroleum Marketers and Convenience Store Association trade show, where an entire booth is dedic ated to current UST issues. The Department answers question and provides resources to petroleum marketers. When requested , the Department makes a presentation for the Idaho Association of Realtors. From time to time, the Department will speak at other c orporate or state events. For example, in 2010 the Department made a presentation at the Idaho Transportation Department’s Annual Hazardous Waste Seminar, where we discussed the procedures for handling an unregistered UST discovered during construction.

T he Department also prepares mass mailings to all registered facilities as often as necessary on important issues such as new rule changes, frequent inspection concerns, UST equipment recalls, and anything else affecting UST systems. See Appendix I for exa mples of Department mailings.

5. Data Maintenance The Department’s UST inventory is a web

- based database called the UST/LUST database. For an example facility from the database, see Appendix M . The Department has maintained UST facility information sinc e 1985. The database includes all the information contained on the Department’s notification form,

“ Notification for Underground Storage Tanks

, ” as well as information on inspection results, enforcement actions, operator training, and Energy Policy Act (2 005) requirements

, such as those facilities that are within 1,000 feet of a drinking water source. The database also has a leaking underground storage tank ( LUST ) section where staff records the source

, cause , and size of the release, impacted receptors

, and the site cleanup progress. The database allows queries in the form of reports for effective compliance monitoring. The database currently generates 18 reports. The database also generates reports specifically for EPA reporting purposes. Some of t h ese reports can be accessed online by EPA without contacting Department staff. The database is used and updated daily by all UST staff. Oftentimes when UST staff receive a phone call, they verify UST facility information with the owner or operator and mak e any needed changes in the database. Each time a n UST inspector conducts an inspection, the inspector verifies that specific facility’s database information, notes any changes, and makes the changes to the database in the field via the inspection applica tion (Appendix J ). When the inspection is finished, it is sent electronically to the Department’s UST/LUSTApplication for Approval of Idaho’s UST Program

49 database, where the database is automatically updated with the current site

specific information. At the same time, copies of the inspection report and enforcement action letter , if necessary, are posted directly into the database. If there are alleged violation(s), t he state office performs a review and ensures any associated enforcement action(s) are consistent with the Underground Storage Tank Pr ogram Implementation Manua l (Appendix E )

. The database and reports are also available on the Department’s website so the public can view UST and LUST information. T he UST/LUST database is available at www.deq.idaho.gov/applications/ust

- lust . There are also links to the database from the UST/LUST homepage ( www.deq.idaho.gov/storage

- tanks ). The UST/LUST homepage describes what an un derground storage tank is, when it is regulated, what regulations need to be followed, what happens if it leaks, and other commonly asked questions. The UST/LUST homepage also provides technical assistance on unregulated tanks such as home heating

- oil tan ks. The Department’s notification form, “ Notification for Underground Storage Tanks

, ” can be found on this web page, as well as other forms for reporting the source and cause of releases and the Energy Act Public Record report. The Department has created a service provider directory and posted it on the website. The service provider directory is a phonebook list of service providers who perform installation, maintenance, and/or closure on UST systems. The UST/LUST homepage also provides links to website s such as the U.S. EPA Office of Underground Storage Tanks and the Idaho State Treasurer’s Office for small business loans.



### B

. Procedures for Enforcement Response
The Underground Storage Tank Program Implementation Manual (Appendix E ) is the Department’s internal manual for ensuring statewide consistency in the UST program. It explains how to train owners and operators, assess compliance, and administer enforcement actions. It is intended to assist Department personnel in ensuring that all owners and ope rators are trained on the UST requirements for their facilities; inspections are conducted in a fair and consistent manner; enforcement actions are fair and consistent and are appropriate for the violation committed; that persons are deterred from committi ng violations; and that compliance is achieved. The Department’s goal is to properly train operators on UST equipment, operation, and maintenance so they prevent and detect releases to the environment. The Department believes proper training will help to achieve voluntary compliance. However, voluntary compliance is not always effective, so the Department does have the authority to pursue enforcement against any owner or operator who is in violation of state statute s or rules pursuant to the Idaho Enviro nmental Protection and Health Act (EPHA) ( Idaho Code §§ 39

- 101 through 39

- 130 ) (Appendix B) ; the Idaho Underground Storage Tank Act (USTA) ( Idaho Code Title 39, Chapter 88 ) (Appendix B) ; the “ Rules Regulating Underground Storage Tank Systems ” ( IDAPA 58.01. 07 ) (Appendix A) ; and the

“ Water Quality Standards ” ( IDAPA 58.01.02 ) (Appendix A )

.Application for Approval of Idaho’s UST Program

50 The Department uses a tiered enforcement approach consisting of the following actions presented in increasing levels of severity:

 Informal warning

 Formal warning

 Field noti ce of violation

 Delivery prohibition (red tag)

 Administrative enforcement

 Civil enforcement The Department’s state office case manager, in coordination with the regional office inspector, processes all formal enforcement actions to ensure statewide consi stency and compliance. 1. Inspections Inspections are conducted at least once every 3 years by trained field inspectors. Inspections remain consistent due to adherence to the Underground Storage Tank Program Implementation Manual (Appendix E ). Inspe ctors also attend routine trainings. Trainings are conducted by the Department’s state office staff as well as outside instructors. Enforcement actions are the result of noncompliance by a facility. The Department has broad statutory authority (Idaho Cod e § § 39

- 108(2) and 39

- 8808 [Appendix B] ) to enter, inspect, and review the records of UST facilities. If an owner or operator fails to allow access to the UST system or records, the facility fails the inspection and enforcement actions are taken.

The in spectors use an electronic inspection application when conducting UST inspections (Appendix J ). Inspectors are required to take photographs of the UST facility if violations are encountered for documentation in an enforcement proceeding. When the inspect ion is finished, the inspection is sent electronically to the Department’s UST/LUST database, where the database is automatically updated with the current site

- specific information. At the same time, copies of the inspection report (Appendix N ) and enforc ement action (Appendix O ) are posted directly into the database. The state office reviews the alleged violation(s) and ensures any associated enforcement action(s) are consistent with the Underground Storage Tank Program Implementation Manua l (Appendix E )

. Department inspectors are trained to recognize that when conduct ing inspections, tak ing samples

, or gather ing other information, the evidence gathered may eventually end up in a court proceeding ; thus

, the procedures followed must be conducted in a ma nner that will produce evidence admissible in an enforcement proceeding or court action . The inspectors receive regular Departmental training by the Department’s a ttorney g eneral s taff as well as managers and supervisors regarding evidence collection, ins pections

, and enforcement procedures. The inspector s also follow the guidance in the Enforcement Procedure Manual , specifically

, Section 2: “ Writing the Inspection Report

, ” which describes the basic premise that any inspection may result inApplication for Approval of Idaho’s UST Program

51 enforcement or litigation and how to gather information to support enforcement proceeding

. S ection 2.4 of the Department’s Enforcement Procedures Manual describes the procedure to gather supporting documentation, such as photocopies

, during inspections ; proper chain of custody ; and procedure s for collecting samples or other information gathered during an inspection. Section 2.4 of th e Enforcement Procedures Manual references and instructs Department inspectors to follow chain

- of

- custody procedures according to EPA Order 5360.1 (now CIO 2105.0) when collecting samples ( Appendix P ). Appendix Q provides a copy of the Department’s chain of custody form.

2. Warnings The Department’s informal enforcement response consists of informal and formal warnings. Informal enforceme nt is preferred because it is initiated at the time of the facility’s operator training and facility inspection, giving the owner and operator an opportunity for voluntary compliance. At the training and inspection visit, all facilities receive a manageme nt plan and a supplemental compliance information binder that specifies what is required to comply with UST requirements. See Appendix L for a sample of a facility management plan. Typically, enforcement actions will only be initiated if the required dut ies specified in the site

- specific management plan and supplemental compliance information binder are not being followed. For additional information about enforcement, see the Underground Storage Tank Program Implementation Manual ( Appendix E )

.

a

. Inf ormal Warnings Informal warnings are recommended in the majority of cases, especially for first

time violators. Informal warnings are given at the time of the inspection for first

time violations and are documented on the enforcement form. See Appendix O for an example of the Department’s enforcement action. Informal warnings are discussed with the owner and/or operator, who also receive s a copy of the informal warning. Informal warnings are for minor issues such as missing 1 month of leak detection rec ords because the tank was not full enough to conduct the test. If, during the next inspection, the problem leading to an informal warning is still present , a formal warning can be issued. For more information about informal warnings, see the Underground Storage Tank Program Implementation Manual (Appendix E ).

b . Formal Warnings Formal warnings are given at the time of inspection for a major first

- time violation or a repeat violation (noted in a previous informal warning) that has not been corrected, a lthough a more formal response occurs in situations where there is substantial risk to human health and the environment. Formal warnings are issued at the facility at the time of inspection via the enforcement form (Appendix O ). Formal warnings need to b e signed by the UST owner or operator, who also receives a copy of the form. Follow

- up is done by the inspector.Application for Approval of Idaho’s UST Program

52 After the written formal warning is issued, the Department determines a time period of 30, 60, or 90 days (depending on the nature of the vi olation) for the facility to come back into compliance. If compliance cannot be achieved within the chosen timeframe, an extension may be granted if the reason for the delay is documented and approved by the inspector. If compliance is not achieved withi n the chosen timeframe and an extension is not granted, a f ield n otice of v iolation (FNOV) may be issued. For more information about formal warnings, see the Underground Storage Tank Program Implementation Manual (Appendix E ).

3. Expedited Enforcement (Field Citation)

Field Notices o f Violation( s )

An FNOV is a ticket

- style citation that specifies which violation(s) occurred at the facility and the associated penalty dollar amount(s). The Department uses the O ffice of S olid W aste and E mergency R esponse (OSWER) d irective 9610.16

— Guidance on Federal Field Citation Enforcement October 6, 1993

, as revised April 6, 2010

— to determine the penalty dollar amount, which ranges from $70 to $420. A list of selected violations and associated penalty amounts can be found in Appendix G of the Underground Storage Tank Program Implementation Manual (Appendix E )

. Violations appropriate for FNOVs are those which are clear

- cut and easily verifiable (i.e., "either they have it or they do not") and violations that are eas ily correctable. When inspector s make the decision to issue an FNOV, they consider the following factors:

1. Good faith efforts to comply 2. Degree of willful, negligent, or unavoidable nature of a violation 3. Extent of deviation from the requirements 4. Potential for harm 5. History of noncompliance 6. Additional relevant factors Examples and considerations for each of these factors are as follows:

1

. Good f

aith e fforts to c omply

 Maintaining a well

- organized management binder with a management plan

 Having trained c l ass A, B, and C operators

 Performing routine nonrequired maintenance on the UST system

 Performing any action that goes above and beyond the compliance requirements

2. Degree of w

illful, n egligent, or u navoidable n ature of a v iolation

 Extent of the alleged violator’s direct or indirect control over the events resulting in the violation(s)

 The foreseeability of the events resulting in the violation(s)

 Whether the alleged violator took reasonable precautions to prevent the events constituting the violation(s)Application for Approval of Idaho’s UST Program

53  Whether the alleged violator promptly reported the noncompliance to the Department

 Whether the alleged violator knew, or should have known, of the violation(s)

3. Extent of d

eviation from the r

equirements

 Length of time not in compliance

 Extent of complian ce (i.e., partial or full noncompliance). Examples include the following scenarios :

 N ot having proof of insurance but having coverage versus not having any insurance at all

 N ot having paperwork versus not even having a printer

4

. Potential for h arm

 If huma n life or health is potentially threatened by the violation

 If any environmental media is potentially threatened by the violation

 Any adverse effect the noncompliance may have on the statutory or regulatory purposes or procedures for implementing the UST p rogram
5

. History of n oncompliance

 The existence of prior UST violation(s) may be used to support issuing a field notice of violation (FNOV). Greater support is built when the prior violation(s):

 Resulted in a civil or criminal enforcement action.

 Resulte d in a w arning or FNOV.

 Was (were) documented on a prior inspection form.

6. Additional relevant factors to consider include:

 Similarity of the alleged violation to a previous violation.

 The number of previous violations.

 Recentness of the previous violat ion(s).

 The alleged violator’s efforts and success in correcting the previous violation(s).

FNOVs will be issued using the enforcement form (Appendix O ). The FNOV needs to be signed by the UST owner or operator and a copy of the form left with the owner or operator. If the FNOV is issued from the office, the FNOV must be sent through certified mail. A copy of the FNOV, along with any photo documentation and a summary of the violations, must be sent to the Department’s case manager for follow

- up.
The F NOV will provide a specified time period, depending on the nature of the violation, during which the facility must come back into compliance. If compliance is achieved at the end of this time period, the Department’s inspector and case manager have the opt ion to waive the penalty. If compliance cannot be achieved within the time period, an extension may be granted if the reason is documentedApplication for Approval of Idaho’s UST Program

54 and approved by the case manager. If compliance is not achieved within the time period and an extension was not gra nted, the facility may be referred for further formal enforcement. FNOV penalty payments can be waived by the c ase m anager if the owner or operator has shown good faith efforts to remedy the violation(s) or if the UST inspector who issued the FNOV makes a recommendation to do so.

4. Formal Enforcement In some instances, training and the supplied management plan may not be sufficient to deter noncompliance. In these instances, enforcement may become necessary to eliminate the potential for harm to huma n health and the environment. The Department’s formal enforcement responses consist of FNOVs, red tags, administrative enforcement, and/or civil enforcement. The Department can take a tiered enforcement action approach, as described below, or can go dire ctly to district court for a civil enforcement action as provided in Idaho Code § 39

- 108(3)(b). For more information about formal enforcement, see the Underground Storage Tank Program Implementation Manual (Appendix E ). If an owner or operator is unres ponsive to an FNOV, the case manager will consult with the inspector who initiated the FNOV to determine which next course of action is most appropriate for the violation(s). For example, delivery prohibition will not be effective for tanks that are tempo rarily out of use. If an owner or operator has been unresponsive to several FNOVs, a civil action may be more effective. The Department is not required to initiate or prosecute an administrative action before initiating a civil enforcement action. The pr ocess to initiate enforcement beyond an FNOV is similar to the referral process used in the LUST p rogram. An enforcement case referral package, which explains why the facility requires formal enforcement, must be filled out by the inspector or c ase m anage r (Appendix R ). If filled out by the inspector, t he referral package is sent to the case manager, who works with the A ttorney G eneral’s O ffice and the Department’s D irector to decide the appropriate actions to take. A referral package is either initiated for delivery prohibition ( r ed t ag), administrative enforcement, and civil enforcement.

a . Delivery Prohibition (Red Tag) The Department must classify an UST ineligible for delivery, deposit, or acceptance of product when one or more of the following cond itions exist:

 Required spill prevention equipment is not installed

 Required overfill protection is not installed

 Required leak detection equipment is not installed

 Required corrosion protection equipment is not installed The Department may classify an UST ineligible for delivery, deposit, or acceptance of product when one or more of the following conditions exist:

 Lack of financial responsibility (only after a formal warning or FNOV has been issued and ignored )Application for Approval of Idaho’s UST Program

55  Failure to properly operate or maintain leak detection equipment (only after an FNOV has been ignored)

 Failure to properly operate or maintain spill, overfill, or corrosion protection equipment (only after an FNOV has been ignored)

 Failure to correct v iolations within 30 days of receiving an FNOV for which an extension was not granted or an extension was exceeded without compliance

 Failure of the alleged violator to sign an FNOV

 Noncompliance following a warning or FNOV The Department D irector may only delay classifying an UST as ineligible for deli very for up to 180 days if such a delay is in the best interest of the public. When a tank is to be classified as ineligible for delivery, deposit, and acceptance of product, the following process is followed:

1. The case manager prepares and sends out (by certified mail to the last known address of the owner or operator) a written notice explaining the reason(s) for the delivery prohibition

. 2. The case manager supplies the UST inspector with a r ed t ag. 3. The UST inspector notifies the owner or operator by perso nally delivering the notice to the owner or operator or clearly posting the notice at a public entrance to the facility. 4. The UST inspector physically attaches the supplied r ed t ag (s) to the fill pipe of the ineligible tank(s). 5. The case manager publicizes t he ineligible tank(s) on the “Do Not Fill” list posted on the Department’s website.

b . Administrative Enforcement An administrative enforcement action is initiated by a n otice of v iolation (NOV). As provided in Idaho Code §§ 39

- 108(3)(a) and 39

- 8811, the NOV identifies the alleged violation with specificity, specifies each provision of the act or rule that has been violated, and states the claimed amount of the civil penalty the owner/operator is liable for each alleged violation.

c . Civil Enforcement If the Department and the alleged violator cannot reach agreement on an administrative enforcement consent order within 60 days after the receipt of the NOV or if the recipient does not request a compliance conference, the Department may commence and prose cute a civil enforcement action. The Department can initiate a civil enforcement action without initiating an administrative action first. As provided in Idaho Code § 39

- 108(3)(b)

, enforcement actions shall be commenced and prosecuted in the district co urt and for the county in which the alleged violation occurred and may be brought against any person who is alleged to have a violation of the above mention ed statute s or rule s or orders issued pursuant to those rules or statutes. The action may be brough t to compel compliance with any provision of the above mention ed statutes or rules and forApplication for Approval of Idaho’s UST Program

56 any relief or remedies authorized. Idaho Code § 39

- 108 does not contain any requirement that a violation be knowing or willful prior to imposing a penalty, although the Department will consider the nature of the violation and the owner’s/operator’s conduct when assessing the penalty.
In a civil enforcement action for these above mentioned statute or rule violations, the “preponderance of the evidence” standard contro ls, with the burden of proof falling on the party that is asserting a claim ( Ebert v. Newton , 97 Idaho 418, 546 P.2d 64 [ 1976 ] [ plaintiff bears burden of persuasion by preponderance of evidence on all necessary elements of cause of action ]

, Appendix S )

. 5. Compliance Conferen ce a nd Consent Order

If an alleged violator disagrees with a n FNOV or administrative enforcement action, he or she has the right to request a compliance conference in accordance with Idaho Code § 39

- 108(3)(a) and IDAPA 58.01.07.500. 07, “Rules Regulating Underground Storage Tank Systems.” The alleged violator must contact the Department within 15 days of the receipt of the FNOV or administrative enforcement

, and the conference shall be held within 20 days unless the Department and th e alleged violator agree on a later date. The compliance conference provides an opportunity for the alleged violator to explain the circumstances of the alleged violation and to present a proposal for remedying the damage caused by the alleged violation a nd ensuring future compliance. If the alleged violator and the Department agree on a plan to remedy damage caused by the alleged violation and to ensure future compliance, they enter into a consent order formalizing the agreement (s ee Idaho Code § 39

- 108( 3)(a)(iv) and (v) ). The consent order may include a provision providing a payment of any agreed civil penalty. The consent order is effective immediately upon signing by both parties and precludes any civil enforcement action for the same alleged violatio n. If a party does not comply with the terms of the consent order, or if the parties cannot reach agreement on the terms of the consent order, the Department may pursue a civil action in district court for specific performance of the consent order and/or any other relief allowed in the Idaho EPHA (Idaho Code Title 39, Chapter1)

, the Idaho Underground Storage Tank Act (Idaho Code Title 39, Chapter 88) , and any other remedy as provided in law (Appendix B)

. 6. Penalties Idaho Code § 39

- 8811 provides for monetary penalties in civil enforcement actions for violation(s) of the Idaho Underground Storage Tank Act or rules promulgated pursuant to the U nderground S torage T ank C ompliance A ct (USTCA) to be assessed against the violator, or the violator shall be s ued to recover in court as follows:

 Anyone who has been determined in a civil enforcement action to have failed to comply with tank notification requirements, or to have submitted false information pursuant to tank notification requirements

, shall be liab le for penalties of up to $5,000 per violation.Application for Approval of Idaho’s UST Program

57  Anyone who has been determined in a civil enforcement action to have failed to comply with any provisions of Idaho Underground Storage Tank Act or rules promulgated pursuant to USTCA

, or any order entered r elated to such violation, for existing or new tank systems, shall be liable for penalties of up to $5,000 for each tank for each day of violation. If the violation is continuous, the violator shall be liable for penalties of up to $5,000 for each day of vi olation. When the Department evaluates the amount of violation to be assessed, it will utilize the Hazardous Waste Management Act (HWMA) Civil Penalty Policy

, with some minor deviations due to the difference in allowable civil penalty amounts for the Stat e of Idaho (Appendix T )

. The Hazardous Waste Management Act (HWMA) allows for a maximum of $10,000 per day

, per violation, so when the Department utilizes the Hazardous Waste Management Act (HWMA) Civil Penalty Policy

, it will reduce all amounts listed in the policy by half. The revised matrix will be as follows:

Extent of Deviation from Requirement

Major Moderate Minor Potential For Harm Major $5,000 to $4,000 $3,999 to $3,000 $2,999 to $2,200

Moderate $2,199 to $1,600 $1,599 to $1,000 $999 to $600

Minor $599 to $300 $299 to $100 $99 to $0

The imposition or computation of monetary penalties may take into account the seriousness of the violation, good faith efforts to comply with the law, and an enforceable commitment by the person against whom t he penalty is directed to implement a supplemental environmental project. In lieu of monetary penalties, the Department may allow the violator to implement a supplemental environmental project as provided in Idaho Code § 39

- 108(5)(b) . A supplemental envi ronmental project is a project that the person is not otherwise required to perform and that prevents pollution, reduces the amount of pollutants reaching the environment, contributes to public awareness of environmental matters, or enhances the quality of the environment. In evaluating a particular supplemental environmental project proposal, preference may be given to those projects with an environmental benefit that relates to the violation or the objectives of the underlying statute or rule that was vi olated or that enhances the quality of the environment in the general geographic location where the violation occurred. The Department’s guidance document on supplemental environmental projects is in Appendix U

.Application for Approval of Idaho’s UST Program

58 Idaho Code § 39

- 108(6) provides that, in a ddition to civil penalties, the violator who has been determined to have violated the statute s or rules shall be liable for any expense incurred by the State in enforcing the EPHA ( Idaho Code §§ 39

- 101 through 39

- 130 ) or in enforcing or terminating any nui sance, source of environmental degradation, cause of sickness, or health hazard. Any expenses incurred include out

- of

- pocket costs incurred by the Department in its enforcement activities. In Idaho Dep’t of Health & Welfare v Southfork Lumber Co ., 123 Id aho 146, 845 P2d 564 (1993), the Idaho Supreme Court interpreted Idaho Code § 39

- 108(6) stating that it is “clear that an award of expense s under EPHA is mandatory and unqualified, stating that a person who violates the Act ‘shall be liable for any expense ’” (Appendix S ).

Idaho Code § 39

- 108(8) provides that i f there is an emergency that creates conditions of imminent and substantial danger to public health or the environment, the prosecuting attorney or the attorney general may institute a civil action for an immediate injunction to halt any activities creating such condition. In such an action

, the court may issue an ex parte restraining order. Finally, Idaho Code § 39

- 109 provides that upon request of the D epartment Director, the attorney general has the duty to prosecute actions or proceedings for the enforcement of any criminal provisions of the EPHA. The attorney general may delegate the authority and duty under this section to prosecute criminal actions to the prosecuting attorney of the county in whi ch such a criminal action may arise.59 

## Memorandum o f Agreement

Between the U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION 10 and the IDAHO DEPARTMENT OF ENVIRONMENTAL QUALITY

For the Activities of the UNDERGROUND STORAGE TANK PROGRAM


### I. GENERAL

This Me morandum of Agreement (hereinafter "Agreement") establishes policies, responsibilities, and procedures pursuant to 40 CFR Part 281 for the State of Idaho's Underground Storage Tank Program (hereinafter "State Program") approved under Section 9004 of Subtit le I of the Resource Conservation and Recovery Act (hereinafter "RCRA" or "the Act") 42 USC 6991 et seq. , as amended, and the United States Environmental Protection Agency (hereinafter "EPA") r egional office for Region 10. This Agreement further sets forth the manner in which the State and EPA will coordinate in the State's administration of the State program.

This Agreement is entered into by the Director of t he Idaho Department of Environmental Quality (hereinafter "Director") and the Regional Administrat or, EPA Region 10 (hereinafter "Regional Administrator" or "EPA").

Nothing in this Agreement shall be construed to restrict in any way EPA's authority to fulfill its oversight and enforcement responsibilities under Subtitle I of RCRA. Nothing in this Agre ement shall be construed to contravene any provision of 40 CFR Parts 280 and 281.

The parties will review the Agreement jointly at least once every three years . This Agreement may be modified upon the initiative of either party in order to ensure consisten cy with State program modifications made or for other purposes mutually agreed upon. Any revisions or modifications must be in writing and must be signed by the Director and the Regional Administrator.

This Agreement will remain in effect until such time a s State program approval is withdrawn by or is voluntarily transferred to EPA according to the criteria and procedures established in 40 CFR §§ 281.60 and 281.61.

This Agreement shall be executed by the Director and the Regional Administrator and shall bec ome effective at the time the State's approval takes effect, which shall be the effective date of the approval as specified in the Federal Register notice announcing EPA's final decision to grant approval to the State.60



### II. POLICY STATEMENT

Each of the part ies to this Agreement is responsible for ensuring that its obligations under Subtitle I of RCRA are met. Upon award of final approval by EPA, the State assumes primary responsibility for implementing the Subtitle I Underground Storage Tank Program within i ts boundaries. EPA retains its responsibility to ensure full and faithful execution of the requirements of Subtitle I of RCRA, including direct implementation in the event the State is unwilling or unable to act. The Director and the Regional Administrator agree to maintain a high level of cooperation and coordination between their respective staffs in a partnership to ensure successful and effective administration of the State program.

EPA assumes a management role upon granting final approval to the State . EPA will review the State program in order to assist the State in implementing its program ; to allow EPA to report to the President, the Congress, and the public on the achievements of the underground storage tank program ; and to encourage the State and EPA to agree on desirable technical support and targets for joint efforts to prevent and mitigate environmental problems associated with improper management of underground storage tanks. Management will be accomplished by EPA through written reporting requ irements, compliance and enforcement overview, and annual review of the State's program.



### III. STATE PROGRAM REVIEW

The Regional Administrator will assess the State administration and enforcement of the underground storage tank program on a continuing basis for stringency with Subtitle I requirements, with this Agreement, and with all applicable Federal requirements and policies and for adequacy of enforcement. This assessment will be accomplished by EPA review of information submitted by the State in accord ance with this Agreement and annual review of State program activities. The Regional Administrator may also consider, as part of this regular assessment, written comments about the State's program administration and enforcement that are received from regul ated persons, the public, and Federal, State, and local agencies. Copies of any such comments received by the Regional Administrator will be provided to the State.

To ensure effective program review, the State agrees to allow EPA access to all files and ot her information requested by the Regional Administrator and deemed necessary for reviewing State program administration and enforcement.

Review of Department files may be scheduled at quarterly intervals. Program review meetings between the Director and th e Regional Administrator or their assignees will be scheduled at reasonable intervals not less than annually to review specific operating procedures and schedules, to resolve problems

, and to discuss mutual program concerns. These meeting s will be schedule d at least61

15 days in advance unless agreed to differently. A tentative agenda for the meeting will be prepared by EPA.



### IV. INFORMATION SHARING

A. General

As the national underground storage tank program matures, the respective roles and responsibilities i n this State/Federal partnership will become more refined. As the respective information needs of the State and EPA evolve, changes to this section of the Agreement may be appropriate. During the annual review of this A greement, the Director and Regional A dministrator will carefully examine the following information

- sharing provisions for necessary revisions.

B. EPA

1. EPA will keep the State informed of the content and meaning of Federal statutes, regulations, guidelines, standards, policy decisions, directiv es, and any other factors that affect the State program. EPA will also provide general technical guidance to the State. EPA will share with the State any national reports developed by EPA from the data submitted through State reporting requirements. 2. EPA wi ll make available to the State other relevant information as requested that the State needs to implement its approved program. 3. EPA will allow the State to submit comments on proposed national legislation affecting the State program.

C. State

1. The State agre es to inform the Regional Administrator of any proposed or adopted program changes that would affect the State's ability to implement the approved program. Program changes of concern include modification of the State's legal authorities (for example, statu tes, regulations, and judicial or legislative actions affecting those authorities) ; modifications of memoranda of agreement or understanding with other agencies ; and modifications of resource levels (for example, available or budgeted personnel and funds). The State recognizes that program revisions must be made in accor dance with the provisions of 40 CFR Part 281. 2. The State will provide compliance monitoring and enforcement information to the Regional Administrator, as specified in the annual grant guidanc e, on a semi

- annual basis. The State agrees to provide EPA with copies of reports on data resulting from any compliance inspection and subsequent enforcement actions, if EPA requests such copies. EPA will give the State at least 14 days notice if they requ ire such records.62

3. If the State issues variances, it will do so in a manner that is no less stringent than the Federal program. 4. The State will establish policies, responsibilities, and procedures pursuant to the Underground Storage Tank Compliance Act of 20 05. 5. State activities will further be described in detail in the State

- EPA Agreement (UST Program) and Cooperative Agreement (LUST Program) work plans.

D. National Data

EPA maintains certain national data on underground storage tanks. This data is used to report to the President, Congress, and the public on the achievements of the underground storage tank program and to support EPA's regulatory development efforts. Whenever EPA determines that it needs to obtain certain information, EPA will first seek to o btain this information from the State. The State agrees to supply the Regional Administrator with this information if readily available and as resources allow. If the State is unable to provide the information or if it is necessary to supplement the State information, EPA may conduct a special survey or perform information collection site visits after notifying the State. EPA will share with the State any national reports developed by EPA as a result of such information collection.

E. Confidentiality

The St ate agrees to furnish to the EPA information obtained or used in the administration of the State program which is not submitted under a claim of confidentiality. If information has been submitted to the State under a claim of confidentiality, the State mu st submit that claim to EPA when providing the information. Any information obtained from a State and subject to a claim of confidentiality will be treated in accordance with the regulations in 40 CFR Part 2

.


### V. COMPLIANCE MONITORING AND ENFORCEMENT

A. EP A

Nothing in this A greement shall restrict EPA's right to inspect any underground storage tank facility or bring enforcement action against any person believed to be in violation of the approved State und erground storage tank program. EPA will continue to do annual inspect ions for oversight monitoring. Before conducting an inspection of a facility, the Regional Administrator will normally give the State at least 30 days notice of the intent to inspect and provide the State an opportunity to participate in t he inspection. Results of passed inspections will be shared with the State within 14 day s of the completed inspection. Once compliance has been reached on non

- passing inspections, EPA will sen d a copy to the State within 14 days of closing the enforcement action. The State agrees to not release such information to the public if it is exempt from p ublic disclosure pursuant to63

40 CFR Part 2. In the case of planned inspections at the start of the F ederal fiscal year, EPA will provide the State with a list of t he planned inspections as soon as the list is developed, but no later than 30 da ys before the first inspection. If the State performs a compliance inspection and submits a report and relevant data thereto within that time to EPA, no EPA inspection will be conducted, except under the following circumstances : (i) EPA has a rea sonable basis to conclude that the State report and data is inadequate, (ii) EPA is conducting its annual oversight inspections, or (iii) EPA has determined that an EPA inspection is

nee ded at a facility(ies) that may have a suspected or on going violation(s) that is, or may be, subject to a F ederal enforcement action. In case of an imminent hazard to human health or the environment, the Regional Administrator may shorten or waive the not ice period.

The Regional Administrator may take enforcement action against any person determined to be in violation of Subtitle I of RCRA in accordance with Section 9006. EPA also retains its right to issue orders and bring actions under Section 9003(h) or 9006 of Subtitle I of RCRA and any oth er applicable Federal statute. When issuing orders

, EPA will cite the appropriate v iolation under IDAPA 58.01.07. The State will normally be given a chance to initiate enforcement prior to EPA involvement in an enfo rcement action. It is EPA's policy not to take such action where a State has taken a ppropriate enforcement action. Before issuing a compliance order under Section 9006, EPA will give notice to the State.

When the Department and EPA coordinate activities, a s described in this Agreement, it is understood that the EPA Idaho Operations Office (IOO) shall be the initial point of contact between the Department and EPA.

This Agreement does not apply to UST activities in Indian Country. EPA retains responsibility for implementing the UST program in Indian Country.

B. State

The State agrees to carry out an effective program for monitoring the compliance by owners and operators of facilities with a pplicable program requirements. As part of this program, the State wi ll conduct compliance inspections and use other mechanisms to assess compliance with underground storage tank standards, compliance schedules, and all other program requirements.

The State agrees to implement an appropriate enforcement response against all persons in violation of underground storage tank standards (including notification requirements), compliance schedules, and all other program requirements, including violations detected by State compliance inspections. The State will maintain procedures f or receiving and ensuring proper consideration of information about violations submitted by the public.64

The State agrees to retain all records relating to enforcement against all persons in violation of underground storage tank standards for at least 3 yea rs unless there is an enforcement action pending. In that case all records will be retained until such action is resolved. Once the enforcement action is resolved the State will retain the records for at least 3 years.

The terms set forth in this Agreeme nt are intended solely for the purpose of memorializing the parties' understanding of their respective roles and commitments in the administration of the Underground Storage Tank Program. They are not intended, and cannot be relied upon, to create any righ ts, substantive or procedural, enforceable by any other party in litigation with either of the parties to this A greement. The parties reserve the right to modify this A greement in accordance with its terms.

_______________________________________ __ __________________ Dennis J. McLerran, Regional Administrator Date U.S. Environmental Protection Agency Region 10

_______________________________________ ____________________ Toni Hardesty, Director Date State of Idaho Department of Environmental QualityApplication for Approval of Idaho’s UST Program

65 

## Program Description

A. Program Description
1. Type o f Approval Requested The State of Idaho is requesting final approval for a complete u nderground

s torage t ank (UST) program regulating both petroleum and hazardous substance UST systems.

2. Does t he S tate h ave any existing agreements w ith Indian tribes? I f so, attach agreements a nd briefly describe. The State of Idaho does not have any existing agreements with I ndian t ribes to regulate UST systems.


### B. Program Scope The State of Idaho has adopted the Federal regulations by reference

, so its program scope is similar to that of the Federal government’s. The State program differ s from the Federal program in the fol lowing areas (see Appendix A for the full text of IDAPA 58.01.07) :

 The State’s UST program requires secondary containment and monitoring of any UST system installed or replaced after February 23, 2007

, that is within 1

, 000 feet of a potable drinking water source. See Idaho’s “Rules Regulating Underground Storage Tank Systems

, ” IDAPA 58.01.07.100.

 The State’s UST program requires owners and/or operators to report the source and cause of a release. See IDAPA 58.01.07.200.

 The State’s UST program r equires oper ator training

. See IDAPA 58.01.07.300

.

 The State’s UST program requires that every UST facility be inspected at least every 3 years. See IDAPA 58.01.07.400

.

 The State’s UST program allows for delivery prohibition. See IDAPA 58.01.07.500

.

 The State’s UST pr ogram requires the Department to create and maintain a public UST database. See IDAPA 58.01.07.600

.

The following table outlines Idaho statutes and rules that are referenced in this Application for the UST program and the appendix where they can be found after the body of this document . Note that some references are subparts to a larger authority but are included specifically because of their pertinence to the State’s UST program.Application for Approval of Idaho’s UST Program

66 Statute Rule Description Appendix

IDAPA 58.01.02 Water Quality Standards A

 IDAPA 58.01.02.851  Petroleum Release Reporting,

Investigation, and Confirmation

 IDAPA 58.01.02.852  Petroleum Release Response and

Corrective Action IDAPA 58.01.07 Rules Regulating Underground Storage

Tank Systems A

IDAPA 58.01.18 Idaho Land Remediation Rules A IDAPA 58.01.23 Rules of Administrative Procedure before

the Board of Environmental Quality A

IDAPA 58.01.24 Standards and Procedures for Application

of Risk Based Corrective Action at Petroleum Release Sites A

Idaho Code Title 39 Chapter 1 Idaho Environmental Protection and Health Act B

 Idaho Code § 39

- 107  The composition of the Department’s Board and rule

- making powers

 Idaho Code § 39

- 108  Investigation, Inspection, Right of Entry, Violation, Enforcement, Penalty, Injunctio ns

 Idaho Code § 39

- 109  Commencement of Civil Enforcement Actions, Criminal Actions Authorized, Duties of Attorney General Idaho Code Title 39 Chapter 72 Idaho Land Remediation Act B

Idaho Code Title 39 Chapter 88 Idaho Underground Storage Tank A ct B

Idaho Rules of Civil Procedures, Rule 24(a) Intervention of Right C

UST Program Statistics

As of March 2011 , the total Department

- regulated UST population includes the following facilities and systems : Total regulated UST facilities (active) 1

, 17 8 Total regulated UST facilities (closed) 3

, 848 Total regulated UST systems (active) 3

, 294 Total hazardous substance UST systems (active) 0 Total temporarily out

- of

- use UST systems (active) 173

Approximately 90% of the State’s UST facilities are sing le

- owner entities

. 

### C. Organization and Structure o f State Program

The Idaho Department of Environmental Quality (Department) is the lead agency for facilitating communications between the U.S. Environmental Protection Agency ( EPA ) and the State of Idaho

. The Department is the only state agency that implements the UST program. The Department’s mission statement is to “Protect human health and preserve the quality of Idaho’s air, land, and water forApplication for Approval of Idaho’s UST Program

67 use and enjoyment today and in the future

. ” To carry out its mission statewide, the Department has a state office located in Boise and six regional offices. Appendix V contains an organizational chart. Within the Department’s state office

, there is a Waste Management and Remediation Division

, which operates all waste

- related programs such as UST, l eaking u nderground s torage t anks (LUST), s olid w aste, Resource Conservation and Recovery Act (RCRA), Voluntary Cleanup Program (VCP), Brownfields, and

m ining. The Department’s state office and the regional offices work cooperatively to implement the UST program. The Department’s state office UST program is responsible for the following tasks :

 C reating and amending regulations

 D eveloping policies

 M anaging EPA assistance grants

 I ssuing enforcement orders

 T raining c orporate operators

 S pot

- checking field inspections

 S upporting the six regional offices

 M anaging the UST database

 R esponding to public records requests

 S etting the general direction of the UST program The six regional offices are responsible for the followi ng tasks :

 C onducting field inspections

 P erforming follow

- up for field inspections

 T raining owners and operators

 I ssuing enforcement orders

 O verseeing tank installations

 O verseeing tank closures

 Overseeing site cleanups

 R esponding to public complaints

 R espo nding to public records requests

 R ecording performance measures The Department also has d eputy a ttorney g eneral s from the Idaho Attorney General ’s Office assigned as in

- house counsel . The Attorney General’s Office provides legal advice to the UST program and represents the Department in court actions. The Attorney General’s Office can pursue civil , criminal, and/or administrative enforcement when cases are referred for enforcement

. Idaho’s Petroleum Storage Tank Fund (PSTF) provides low

- cost insurance to most of Idaho’s UST facilities. The Department notifies PSTF administrators of the compliance status of each UST facility so that they may investigate their continuing insurance coverage.Application for Approval of Idaho’s UST Program

68 

### D. Release Response , Reporting a nd Corrective Action

1. Overvi ew The Department’s LUST program is responsible for the oversight of investigation s of confirmed petroleum releases and any required site cleanup. Currently

, the LUST staff is addressing approximately 150 petroleum release events and is using Federal reso urces to resolve problems on LUST sites that have no responsible party (RP) or have an RP with limited

, if any

, resources. The Department has been able to close at least 20 sites annually over the last 5 years and has continuously met EPA cleanup goals. The Department enforces the release reporting and corrective action requirements of the UST regulations and seeks cost recovery where required. The Department finalized its Cost Recovery Guidance Manual in February 2008 (Appendix W )

. The process of rel ease reporting and corrective action follows 40 CFR Part 280 as identified in Subparts E and F . Although the State adopted 40 CFR Part 280 by reference on April 2, 2008, the State has been enforcing IDAPA 58.01.02 Subsections 851 and 852 since July 1, 199 3, which are consistent with 40 CFR Part 280 Subparts E and F. The Department’s state office LUST program is responsible for the following actions:

 Creating and amending regulations

 Developing policies

 Managing EPA assistance grants

 Issuing enforcement a ctions

 Maintaining enforcement records

 Supporting the six regional offices

 Managing the LUST database

 Responding to public records requests

 Setting the general direction of the LUST program The six regional offices are responsible for the following tasks:

 Conducting field inspections related to complaints

 Performing follow

- up on reported confirmed releases

 Providing owners and operators with comments on LUST site issues

 Requesting enforcement actions

 Overseeing and reviewing LUST site information

 Overseeing and approving LUST corrective action plans

 O verseeing site cleanups based on corrective action plans

 Responding to public records requests

 Recording performance measures The following are typical steps that occur during release reporting and corrective

ac tion circumstances:Application for Approval of Idaho’s UST Program

69 1. All suspected releases must be reported by the owner or operator to the Department within 24 hours. 2. All suspected releases must be investigated and confirmed by the Department within 7 days

. 3. If the release is confirmed, the UST owner or operator must perform the initial response actions within 24 hours of confirmation. Such actions prevent further releases and mitigate fire hazards. 4. Within 20 days or another reasonable time period after release confirmation, the owner or operator must s ubmit to the Department a report summarizing the initial response steps. 5. A site characterization report needs to be submitted within 45 days of release confirmation. This would include a free product removal report, if needed. 6. The owner or operator must s ubmit a corrective action plan for the Department’s approval that responds to the contaminated soils, surface water, and/or ground water. 7. The regional office LUST staff must submit a consent order referral package to the state office for evaluation, and if necessary, prepar e and submit a consent order to the responsible party. 8. The responsible party must negotiate terms and/or sign the consent order within 30 days of receiving the consent order

. 9. The regional LUST staff, with support from the state office, a pproves the corrective action plan, which becomes an enforceable part of the consent order. 10. A s chedule and c riteria will be issued if owners and operators cannot reach an agreement with the Department on the terms of the consent order and can be issued wit hin 30 days after issuance of the consent order

. 11. If a corrective action plan is prepared, the Department must provide notice to the affected public and receive comments and address them before the corrective action plan can be approved

. 12. Within 90 days of a confirmed release

, the owner or operator must submit a report to the Department identifying the release source and cause

. Department LUST staff address the reporting and cleanup of spills and overfills in the same manner as other confirmed releases unles s this activity results in a release of less than 25 gallons, does not cause a sheen on nearby surface water, and is cleaned up within 24 hours. Hazardous substance releases are managed by the Department’s hazardous waste management staff. The Department’ s UST and LUST staff work together on site discovery and confirming suspected releases. R eporting of suspected releases not due to offsite impacts is handled by the UST staff, while reporting of suspected releases due to offsite impacts is handled by the LUST staff. If an UST inspector suspects a release during an inspection, the inspector will work with the owner or operator to confirm or deny the suspected release. If the release is confirmed, the UST inspector will turn the case over to the LUST staff

.Application for Approval of Idaho’s UST Program

70 Department LUST staff are on site during tank closure activities and require environmental contractors to sample in certain locations such as the former tank basin, every 20 feet of a piping run, and dispenser areas . The LUST staff document and map the tank closure activities in their field book. The Department’s LUST staff use the UST/LUST database to track LUST site progress. The database contains known information on the release

, such as the cleanup project manager ; who reported the release ; how the release was detected ; the source, cause, and amount of the release; which tank / piping run / dispenser had the release ; what the receptors are ; what cleanup method wa s used; and all corresponding dates for when the release occurred, when cleanup started, and when cleanup ended. For an example of a LUST event database entry, see Appendix X

. 2. Risk Evaluation Manual for Petroleum Releases ( P etroleum REM) In May 2009, t he Idaho Legislature approved rules promulgated by the Department and entitled “ Standa rds and Procedures for Application of Risk Based Corrective Action at Petroleum Release Sites ” (IDAPA 58.01.24) (Appendix A )

. The rules required the Department to prepare a r isk e valuation

m anual for petroleum releases that will be used as guidance for imp lementation of the rules

. Development of this manual has been in progress sinc e August 2009 and has involved the formation of a work group. It is anticipated that the guidance will be completed and provided to the public for comment and implementation in f all 2011, along with minor revisions to the rules. The following website includes the latest draft of the petroleum REM: www.deq.idaho.gov/risk

evaluation

- manual

. The draft petroleum REM pres ents a roadmap for evaluating risk

— from discovery through cleanup

— at petroleum release sites.

The petroleum REM is used to determine whether ground water, surface water, soil , or soil vapor at a particular location is contaminated to the extent it poses a human health risk. The manual guides Department employees and others in responding when chemicals are released in to the environment. It helps the Department evaluate whether an investigation or cleanup is needed and, if so, what its scope and nature sho uld be. The manual provides a brief description of the steps in the risk evaluation process , gives general information related to the data requirements and implementation of the risk evaluation process , and then describes in detail each of the steps in th e risk evaluation process including corrective action plans and activity and use limitations.

The manual includes appendices which contain information to assist in implementing the risk evaluation process. This information includes the following elements :

 Residential u se s creening l evels ( RUSL s) for selected chemicals

 P hysical, chemical, and toxicological values for these chemicals

 R ationale for the selection of screening default fate and transport and exposure factor parameter values

 E quations used in the calculations, guidance on natural attenuation

, and evaluation of the vapor intrusion pathwayApplication for Approval of Idaho’s UST Program

71  Interpretation of practical quantitation limits as cleanup criteria

 Estimation of exposure point concentrations

 E xamples of reporting formats

 Activity and use limitations and environmental covenant discussion Three software applications are provided to complement and assist in implementation of the risk evaluation process. All three are Microsoft Excel spreadsheets :

 A computational application to calculate risk s and targets levels

 A utility to conduct a Mann

- Kendall analysis of trend for up to five chemicals and ten sampling events

 A utility to calculate the 95% u pper c onfidence l imit (95% UCL) of the mean for chemical concentration data. The utility calculates the 95% UCL for normal and log

- normal distributed sample data, as well as a bootstrap

- t estimate. The Department’s website provides contact information for those persons wanting to take part in the REM training. Upon finalization of the draft guidance, t he Department anticipates offering training to Department staff and the regulated community

. 3. Voluntary Cleanup Program (VCP) In 1996, the Idaho Legislature created the Idaho Land Remediation Act ( Title 39 Chapter 72, Idaho Code)

, which authorized the Department’s VCP . The VCP encourage s innovation and cooperation between the State , local communities

, and private parties working to revitalize properties with hazard ous substance or petroleum contamination. In 1997, the Department developed the “ Idaho Land Remediation Rules ” (IDAPA 58.01.18) detailing implementation of the VCP. The Department also created an application to participate in the program and guidance for completing the application.

A person may apply to participate in the VCP . I f accepted into the program

, the applicant is provided benefits from the VCP , including the following :

 A n expedited remediation process

 A voiding an adversarial enforcement action

 A 7

- year partial property tax exemption

 A “Covenant Not to Sue” from the Depa rtment

 The use of institutional controls in cleanup plans

 “ L ender liability” protections that are similar to the protection s for “indicia of ownership” interests as in the Comprehensive Environmental Response, Compensation, and Liability Act ( CER C LA )

The S tate of Idaho offers financial incentives for those willing to clean up a LUST site through the Community Reinvestment Pilot Initiative if the property owner did not cause the contamination . The VCP also allows for a 7

- year partial property tax exemption wherein the owner can exempt 50% of the remediated land value for 7 tax years.Application for Approval of Idaho’s UST Program

72 4. Community Reinvestment Pilot Initiative ( Pilot )

The Community Reinvestment Pilot Initiative (Pilot ) makes available up to $1,500,000 in State funds to private and non

- prof it entities completing Department

- approved cleanups at up to 10 properties selected as Pilot site s. To be eligible for Pilot funds

, the applicant must be selected to be in the VCP and must not have been the responsible party to have caused the contaminati on. Pilot sites are vacant or underutilized properties whose reuse is complicated by contamination. Upon cleanup completion, the State issues the participant a Community Reinvestment Rebate equal to 70% of the cleanup costs incurred, with a maximum rebat e of $150,000 per P ilot site

. The participant submits to the Department for review and approval a proposed

r emediation w ork p lan. Once the Department approves the work plan, the participant conducts the Department

- approved cleanup with D epartmental

overs ight. When identified cleanup goals are reached, the participant submits to the Department a w ork p lan c ompletion r eport and the Department issues a

c ertificate of c ompletion. Within 60 days of receiving the c ertificate of

c ompletion, participants may re quest their c ommunity r einvestment r ebate. The Department will review the rebate request and certify the amount of qualifying remediation costs. Within 30 days of certifying these costs, the Department will issue the participant a c ommunity r einvestment r ebate.



### E. UST Closure When closing a n UST, owners or operators are required to notify the Department 30 days prior to closure . They do this on the Department’s notification form. The form is turned in to the Department’s state office , which then contac ts the local regional inspector and informs him or her that a closure is occurring. The form stipulates that if the closure date change s , the Department must be notified. All UST closures are attended by a Department inspector. The inspector directs the environmental contractor in finding the best locations to sample and in taking the appropriate number of samples. In addition to Department personnel, closures are also usually attended by the local fire department and a representative from the State’s Pe troleum Storage Tank Fund. Although closing tanks in place is an acceptable method of closure, the Department discourages such actions unless the removal of the tank will compromise a structure. L ending institutions will rarely lend on a property with t anks still present , even if they are properly closed in place. The Department conveys this information to all owners and operators who want to close a tank in place. The Department reaches out to realtors on this subject as well.

Once a closure occurs an d the site assessment report is reviewed, the Department issues a n o f urther a ction (NFA) letter. This letter states the owner or operator does not need to perform remediation in connection with the UST closure

. If contaminants are discovered in unaccept able amounts, the UST site becomes a LUST site.Application for Approval of Idaho’s UST Program

73 

### F. Financial Responsibility The State of Idaho has created the Idaho Petroleum Clean Water Trust Fund, administered by the Petroleum Storage Tank Fund (PSTF ) . It is a not

- for

- profit insurance organizatio n that provides coverage for approved petroleum cleanup costs and valid third

- party claims resulting from covered accidental releases commencing during the policy period. PSTF offers coverage for USTs, above ground storage tanks ( ASTs )

, and residential, f arm, and heating oil tanks. PSTF offers the following benefits:

 C overage on an "occurrence" basis, which means that once a tank is insured, accidental releases that occur while the policy is in force may be covered even if the release is not discovered un til a later date.

 T he insurance contract may be transferable to a new owner upon sale of the property without any lapse in coverage if all underwriting requirements are met.

 A reimbursable deductible allows the PSTF to pay the first dollar of cleanup costs and compensatory damages to third parties for valid bodily injury or property damage claims. This enables the PSTF to react quickly to monitor the cleanup process and to pay cleanup costs as they are incurred. Tank owners or operators are not required to pay the cost and then wait for reimbursement. The cost for PSTF insurance is $25 per tank per year. The PSTF provides for the following coverage for USTs:

 For petroleum marketers operating 1 to 100 covered underground petroleum storage tanks, no more than $1 million in costs per occurrence and no more than $1 million annual aggregate

 For petroleum marketers operating 101 or more covered underground petroleum storage tanks, no more than $1 million in costs per occurrence and no more than $2 million annual a ggregate

 For non

- marketers of petroleum products who are owners or operators of ASTs and USTs and who consume 10,000 gallons or less of petroleum products each month, no more than $500,000 per occurrence and no more than $1 million annual aggregate

 $10,000 deductible per annum

 Annual inspection EPA evaluated the PSTF coverage and found it to be equivalent to the 40 CFR Part 28 0 .93 (amount and scope of required financial responsibility) requirements under 40 CFR Part 28 0 .100 ( use of state

- required mechanism)

. The State of Idaho has an “Idaho Prime Loan Program” for small business

own e r s who want to improve or expand their business es (Appendix Y )

. Department inspectors hand out the Idaho Prime Loan Program brochures to UST owners and operators who may need so me financial help in purchasing new UST equipment. UST owners can borrow up to $750,000 and have the interest rate set at prime.Application for Approval of Idaho’s UST Program

74 

### G. Resource Information Currently, t he Department’s UST /LUST program has approximately 11 full

- time employees ; 3 in the stat e office and 8 in the six regional offices. The UST /LUST program has the following sources of funding:

1. The Federal State and Tribal Assistance Grant (STAG) The Federal STAG provides funding for database maintenance, program management, UST inspections, state program approval, outreach, and general program oversight. As of fiscal year 2011 , this annual grant includes $8 8

, 207 in Federal funds (75%) and $29, 402 in State funds (25%) for a total of $117, 609 . Administrative costs account for $3 1

, 721 ( 27 %) o f the total grant amount. The grant funds 1.17 full

- time employees.

2. The Federal LUST Prevention Grant

The Federal LUST Prevention G rant provides funding for U nderground S torage T ank C ompliance A ct implementation, database maintenance, program manageme nt, and UST inspections. As of fiscal year 2011 , this annual grant includes $3 06

, 3 7 2 in Federal funds (75%) and $ 1 02

, 124 in s tate funds ( 25%) for a total of $4 08

, 496 . Administrative costs account for $1 11

, 546 (2 7 %) of the total grant amount. The grant f unds 4. 54 full

- time employees.

3. The Federal LUST Trust Fund Grant

The Federal LUST Trust Fund G rant provides funding for site investigations, enforcement and corrective action, emergenc y and complaint response , database maintenance, rulemaking, and publ ic outreach. As of fiscal year 2011 , this annual grant includes $5 65

, 000 in Federal funds (90%) and $ 62

, 778 in s tate funds (10%) for a total of $627,778 . Administrative costs account for $1 45

, 934 (2 3 %) of the total grant amount. The grant funds 5

. 25 ful l

- time employees.

The total amount the State of Idaho has in UST and LUST a ssistance g rants is $1,1 53

, 883 . Occasionally, the State may receive additional grants for special projects. For example, the State currently has a LUST stimulus grant in the

amo unt of $1,284,000, a grant to investigate temporarily out

- of

- use or abandoned UST systems for $250,000, and a grant to assist in cleaning up LUST sites in the Boise regional office ’s jurisdiction for $250,000.


### H. Energy Policy Act of 2005

The Idaho Unde rground Storage Tank Act (Idaho Code Title 39, Chapter 88) was enacted on February 23, 2007 (Appendix B ) . This a ct allowed the Department to make rules regarding the Energy Policy Act of 2005. It also allowed the Department to start enforcing on many mea sures in the Energy Policy Act of 2005. On April 2, 2008, the “ Rules Regulating Underground Storage Tank Systems ” (IDAPA 58.01.07) were enacted (Appendix A ) . The r ules contain the following sections , as discussed in more detail below :Application for Approval of Idaho’s UST Program

75  Incorporation of th e Federal Technical Standards and Corrective Action Requirements for Owners and Operators o f Underground Storage Tanks, 40 CFR Part 280

 Additional Measures to Protect Ground Water from Contamination

 Release Reporting Requirements

 Training Requirements

 Insp ections

 Delivery Prohibition

 Maintenance of the Petroleum Underground Storage Tank Database Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks, 40 CFR Part 280 (Section 004) This section incorporat es , by reference, the Federal UST laws that have been in effect since December 22, 1988.

Additional Measures to Protect Ground Wa ter from Contamination (Section 100) This section explains new notification requirements for all tank systems and requirements for UST systems installed or replaced after February 23, 2007. Some of those requirements include the following:

 The Department must be notified 30 days prior to installing a new piping system or a new or replacement tank

.

 The D epartment must be notified 24 hours prior to replacing a piping system

.

 Each new tank and/or piping system installed or replac ed after February 23, 2007

, that is within 1

, 000 feet of a potable drinking water source must have secondary containment (an inner and outer barrier) instal led

, and the space between the inner and outer barrier must be monitored

.

 Each new motor fuel dispenser system that is within 1

, 000 feet of a potable drinking water source and is installed after February 23, 2007

, must have under

- dispenser containment

. Rel ease Reporting Requirements (Section 200) When a release occurs, the owner or operator must report the source and cause of the release. Sources may include

, but are not limited to , the following :

 An underground storage tank

 Piping

 Dispensers

 Submersible t urbine pump area

 Delivery problem Causes may include

, but are not limited to , the following :

 Spills

 OverfillsApplication for Approval of Idaho’s UST Program

76  Physical or mechanical damage

 Corrosion

 Installation problem s Operator Training Requirements (Section 300)

This section describes both the Departm ent’s and owners ’ and operators ’ obligations to training. Some of those requirements include the following:

 The Department will adopt an owner and operator training program

.

 The training will be provided at no cost

.

 The training will be conducted at the owner or operator’s UST site.

 The owner or operator must designate a c lass A, c lass B, and c lass C

o perator. The c lass A and c lass B o perators must be reported to the department within 30 days of the designation and then be trained according to their clas s.

 Class A o perator

— has primary res ponsibility for the UST system (i.e.

, the owner)

 Class B o perator

— has daily on

- site responsibility for the UST system (i.e.

, the manager)

 Class C o perator

— has daily on

- site responsibility for addressing UST emergencies (i .e. , the clerk)

 The c lass A or B o perator may train the c lass C o perator.

 If their UST system is out of compliance, t he trained operators must repeat the training within 30 days of the noncompliance event

.

 Unattended or unmanned sites need a sign in a visi ble location indicating emergency shut

- off procedures and contact information. Inspections (Section 400) This section describes what UST equipment , actions, and paperwork a D epartment inspector will use to assess compliance , including the following :

 Notifi cation

 Corrosion protection

 Overfill prevention in place and operational

 Spill prevention in place and operational

 Tank and piping release detection

 Reporting suspected releases

 Records of tank and piping repairs

 Secondary containment where required

 Financ ial responsibility

 Temporary closure An inspection will be conducted at least once every 3 years and all inspections will be conducted on site.Application for Approval of Idaho’s UST Program

77 Delivery Prohibition (Section 500)

This section states that it is unlawful to deliver to, deposit into, or acce pt a regulated substance into an ineligible UST. A tank will be ineligible if any of the following statements are true :

 Required spill equipment is not installed

 Required overfill protection equipment is not installed

 Required leak detection equipment is not installed

 Required corrosion protection equipment is not installed

A tank may be ineligible if any of the following situations occur :

 Failure to properly operate or maintain leak detection equipment

 Failure to properly operate or maintain spill, overfi ll, or corrosion protection equipment

 Failure to maintain financial responsibility The owner will be notified prior to prohibiting deliveries and will have the opportunity to appeal. A tamper

- proof red tag will be attached to each ineligible fuel tank’s f ill pipe. A current list of all ineligible fuel tanks will be posted on the Department’ s website. UST Database Maintenance (Section 600)

This section states that the Department will maintain a quarterly

- updated database that contains information on the sta tus of all UST systems. The database is available on the Department ’s website at www.deq.idaho.gov/applications/ust

- lust

.