06- 096 C.M.R. ch. 692, § 4

Current through 2025-03, January 15, 2025

Section 096-692-4 - Prohibition on facilities on significant sand and gravel aquifers

A person may not install or cause to be installed an oil storage facility on a significant sand and gravel aquifer mapped by the Maine Geological Survey. This prohibition applies regardless of proximity to a public or private drinking water well.

NOTE: Significant Sand and Gravel Aquifer maps are available at most municipal offices and from the Maine Geological Survey, (207) 287-2801.

A.Exceptions. The prohibition of this section does not apply to:

(1) An underground oil storage facility in existence on July 1, 2002 or an aboveground oil storage facility in existence on July 1, 2010;

(2) The replacement or expansion of a motor fuel or marketing and distribution underground oil storage facility in existence on July 1, 2002 or an aboveground oil storage facility permitted by the Fire Marshal and in existence on July 1, 2010 as long as the replacement or expansion occurs on the same property, the facility meets all applicable requirements of Chapter 691 and Chapter 34 and, in the case of replacement, the facility owner:

(a) Within 30 days after removal of the existing facility, notifies the Commissioner in writing of the owner's intent to replace the facility and:

(i) If located in an organized area, notice must also be provided to the municipal code enforcement officer; or

(ii) If located in an unorganized or deorganized area, notice must also be provided to the Office of County Commissioners and the Maine Land Use Planning Commission (LUPC); and

(b) Commences construction of the replacement facility within two years and completes construction within five years after removal of the existing facility;

(3) The conversion of an aboveground oil storage facility permitted by the Fire Marshal and in existence on July 1, 2002 to an underground oil storage facility or the conversion of an underground oil storage facility to an aboveground oil storage facility as long as the conversion occurs on the same propertyand the facility meets all applicable requirements of Chapter 691 and Chapter 34;

(4) A facility used solely to store heating oil for consumption on the premises;

(5) Facility components, such as buildings and parking areas, that are not designed or intended to contain oil in a liquid or vapor phase;

(6) A facility located on a mapped significant sand and gravelaquifer if a site specific hydrogeological investigation shows to the Commissioner's satisfaction that the location is not on a significant sand and gravel aquifer; or

(7) A facility consisting of no more than two double-walled aboveground storage tanks with a total aggregate storage capacity of 1,100 gallons or less on a single parcel of property, provided the tanks are used exclusively to store diesel fuel for heavy equipment used to mine sand and gravel and further provided the tank meets the requirements of subsection B below.

This subsection may not be interpreted to allow the conversion, expansion or replacement of an underground oil storage tank or underground oil storage facility subject to the abandonment requirements of 38 M.R.S. §566-A and Chapter 691§11.

B.Requirements for use of diesel fuel supply tanks on mapped significant sand and gravel aquifers. As provided under subsection A, paragraph 7, the aboveground storage of diesel fuel for equipment used to mine sand and gravel is exempt from the siting prohibition of this section provided:

(1) The oil storage facility is part of a mining operation for sand and gravel licensed in accordance with 38 M.R.S. §§481 through 490 and 490-A through 490-K;

(2) The tank is not located on a portion of the significant sand and gravel aquifer mapped as a high potential aquifer with a yield exceeding 50 gallons per minute; and

(3) The tank is not located in a wellhead protection zone as defined by this Chapter;

NOTE: As resources allow, the Department may be able to assist a facility owner or operator in the determination of the GIS location of the proposed new tank location to determine if a proposed tank location qualifies for this exemption. Any request for assistance should be made at least 10 business days in advance of the planned installation date on the notification form.

(4) The tank is an aboveground, double-walled tank with continuous interstitial space monitoring for leaks and installed in accordance with the following standards:

(a) The tank must be listed and constructed in accordance with Underwriters Laboratories Standards 142, 2080 or 2085;

(b) No product piping runs are associated with the tank, and the dispenser is located directly on the tank;

(c) The tank is equipped with an audible overfill alarm that alerts the operator when the tank is 90% of capacity, equipment that automatically shuts off the flow of the fuel when the tank is 95% or less of total capacity, and a visual product level gauge. Such equipment shall be installed by a manufacturer's certified representative or a Maine certified underground oil storage tank installer;

(d) Tanks and the vehicle fueling areas are located on a single impervious concrete pad or a continuous asphalt pad treated with a petroleum compatible polymer based sealant, installed and maintained in accordance with manufacturer instructions. The pad is to be of adequate size to allow for the clean up of small spills before reaching surrounding soils; and

(e) The tank and all other facility equipment are installed in accordance with the manufacturer's instructions and the rules of the Office of the State Fire Marshal in the Department of Public Safety adopted in accordance with 25 M.R.S.§2482, including but not limited to, maintaining a minimum of a 25-foot setback from all buildings, property lines and public roads.

(5) The oil storage facility (i.e., tank, tank appurtenances and fueling area) is operated and maintained in accordance with the following requirements:

(a) Evidence of a leak in the tank, including fuel in the tank interstitial space as indicated by the leak detection system, must be reported to the Department within 24 hours of discovery.

(b) The facility must be inspected for spills on days when it is in operation receiving or dispensing fuel and a written log or other documentation of the inspections must be maintained at the facility or the owner or operator's normal place of business for up to three calendar years, with the date and findings of each inspection and initialed by the person conducting the inspection.

(c) All oil spills and discharges must be reported to the Department within 2 hours of discovery, and immediately cleaned up to the Commissioner's satisfaction.

NOTE: Oil spills may be reported 24 hours a day at 1-800-482-0777

(d) The overfill protection and prevention devices must be operated and maintained in accordance with manufacturer instructions;

(e) The facility owner or operator shall require fuel delivery personnel to: check in with the on-site representative of the owner or operator before filling a tank to verify the quantity ordered and the tank's ability to receive that volume; remain with the delivery vehicle and monitor filling of the tank; check that hose lines are properly connected and disconnected at the start and completion of the filling operation; inspect the filling area for spills; and report spills to the facility on-site representative. The facility owner and operator shall further ensure that delivery personnel know what procedures to follow in the event of an overfill or other spill; and

(f) A passing annual inspection of the facility must be submitted to the Department by July 1, 2013 and each year thereafter. The inspection must include, but is not limited to, certification that the overfill protection and prevention equipment and leak detection monitoring is operating properly. Any deficiencies discovered must be corrected prior to the annual July 1 inspection report submission deadline. The inspection must be conducted in accordance with the equipment manufacturer instructions and signed by a qualified representative of the facility owner or operator. The inspection results must be recorded and submitted on a form provided by the Commissioner.

(6) The tank owner or operator submits a signed written notice and certification of compliance at least 24 hours prior to installation using a form provided by the Commissioner for that purpose and including, at a minimum, the name and contact information for the facility's owner and operator, the tank GIS location, driving directions, the number of tanks and the maximum volume of each tank. The notice and certification may be provided on the day of installation if the installation is necessitated by any of the following:

(a) An act of war;

(b) An act of God, meaning an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency; or

(c) The proclamation of an emergency pursuant to 38 M.R.S.§547. The tank owner or operator shall submit an amended notice and certification of compliance within 5 business days of a change in the information provided on the form and within 5 business days of moving a tank between locations that previously have been certified as in compliance with this subsection.

(7) The tank is properly abandoned if it is out of service or intended to be out of service for 24 or more consecutive months, including:

(a) Removal of all diesel fuel from the tank;

(b) Removal of the tank;

(c) Proper disposal or re-use of the tank;

(d) Written notification to the Commissioner 10 business days prior to abandonment; and

(e) Completion and submission of an environmental site assessment to determine the presence of oil contamination within 30 days of the transfer of ownership, or a change from a mining operation to another land use, of the parcel upon which the tank was located. The site assessment shall be stamped by a Maine certified geologist, Maine licensed professional engineer, or a geologist or engineer otherwise in compliance with Maine' professional regulation statutes. The site assessment must be conducted to the satisfaction of the Commissioner and must include adequate soil sampling and analyses representative of soil conditions immediately surrounding and underlying the facility and sufficient to determine if any contamination is a risk to ground water. Soil analyses must be conducted using a field method approved by the Commissioner and confirmed with a laboratory soil analysis from soil with the highest field readings. Laboratory samples are to be analyzed by a laboratory method approved by the Commissioner and by a laboratory certified by the State of Maine to conduct this analysis.

C.Variance for polluted significant sand and gravel aquifers and other significant sand and gravel aquifers with low potential for use. The Commissioner may grant a variance to the prohibition of this section if the proposed facility meets the design standards of section 5 and the Commissioner finds that the aquifer has a low potential for future use as a public or private drinking water supply because one of the following circumstances applies:

(1) The proposed facility is located in an urban area of dense commercial or industrial land uses or an area where a public water supply well is unlikely in the foreseeable future and a public drinking water system serves all drinking water users within 1,000 feet of the proposed facility;

(2) The proposed facility is located in an area where the installation of drinking water supply wells within 1,000 feet of the proposed facility site is prohibited by property deed restrictions, municipal land use ordinance or a zoning rule of the Maine LUPC; or

(3) The applicant has submitted hydrogeological studies or groundwater quality testing data demonstrating to the Commissioner's satisfaction that:

(a) The significant sand and gravel aquifer is polluted with one or more man-made contaminants in concentrations exceeding federal maximum contaminant levels (MCLs) or an MCL or maximum exposure guideline (MEG) established by the Maine Center for Disease Control and Prevention; and

(b) The significant sand and gravel aquifer has not been and is not now the subject of a Commissioner-supervised remediation effort with the goal of the eventual restoration of, or the protection of, ground water in the significant sand and gravel aquifer to a quality suitable for human consumption.

D.Variance for moderate yield significant sand and gravelaquifers. The Commissioner may grant a variance to the prohibition of this section if the applicant demonstrates to the Commissioner's satisfaction that:

(1) The significant sand and gravel aquifer is mapped by the Maine Geological Survey as generally yielding 10 or more gallons per minute but no more than 50 gallons per minute or the applicant has determined, and the Commissioner has concurred, that the groundwater yield of the aquifer at the proposed facility location generally yields 10 or more gallons per minute but no more than 50 gallons per minute as confirmed by conducting a Commissioner-approved hydrogeological evaluation in accordance with Appendix A.

The Commissioner may require a hydrogeologic evaluation, as defined in Appendix A of this rule, when a proposed facility is located in an area identified by the Department as an area with a high likelihood of containing an unmapped, high yield significant sand and gravel aquifer, including but not limited to aquifers associated with a surface water body or containing deep glacial drift deposits, or an area with a high likelihood of being used for a public water supply or the expansion of an existing public water utility. This determination will be made based on readily available information and best professional judgement and input from the local public water utility, if any; and

(2) The proposed facility meets the design standards of section 5.

E.Variance for municipalities located on high yield significant sand and gravel aquifers. The Commissioner may grant a variance to the prohibition of this section if the applicant demonstrates to the Commissioner's satisfaction that:

(1) The majority of the land area of the municipality or town center is located on a high yield significant sand and gravel aquifer as delineated by Maine Geological Survey mapping or a Commissioner-approved hydrogeological evaluation conducted in accordance with Appendix A;

(2) The proposed facility meets the design standards of section 5;

(3) The facility is staffed at all times when oil is being pumped; and

(4) The municipality submits a letter stating that the facility is needed within the community and the specific location is acceptable to the municipality and the public water utility, if any.

F.High yield significant sand and gravelaquifers; variance prohibited. Except for sections 4(C) or 4(E), the Commissioner shall not grant a variance from the prohibition of this section if any part of the proposed facility site overlies a mapped significant sand and gravel aquifer that has good to excellent potential ground water yield, generally exceeding 50 gallons per minute. High yield significant sand and gravel aquifers include:

(1) Any area designated on a Maine Geological Survey map as a significant sand and gravel aquifer with good to excellent yield of greater than 50 gallons per minute;

(2) An aquifer or ground water resource protection zone as designated in a municipal ordinance or a LUPC zoning rule;

(3) The source water or recharge area of a community public drinking water system supply well, including a well that is in the process of being developed, or areas within 1,000 feet of such a well, whichever is greater, provided the significant sand and gravel aquifer has been found to yield more than 50 gallons per minute, based on hydrogeological pump test data and analysis by a Maine-certified geologist; or

(4) A portion of a mapped significant sand and gravel aquifer that, based on a borehole test conducted in the center of a proposed facility site and in accordance with Appendix A of this Chapter, is expected to yield more than 50 gallons per minute.

NOTE: If the applicant believes that a high yield significant sand and gravel aquifer, as listed above, has been incorrectly mapped or identified, the applicant should engage the entities responsible for that mapping or identification regarding appropriate changes.

06- 096 C.M.R. ch. 692, § 4