[Proposed Rules]
[Pages 71708-71796]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29293]
[[Page 71707]]
Vol. 76
Friday,
No. 223
November 18, 2011
Part III
Environmental Protection Agency
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40 CFR Parts 280 and 281
Revising Underground Storage Tank Regulations–Revisions to Existing
Requirements and New Requirements for Secondary Containment and
Operator Training; Proposed Rule
Federal Register / Vol. 76 , No. 223 / Friday, November 18, 2011 /
Proposed Rules
[[Page 71708]]
———————————————————————–
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 280 and 281
[EPA-HQ-UST-2011-0301; FRL-9485-5]
RIN 2050-AG46
Revising Underground Storage Tank Regulations–Revisions to
Existing Requirements and New Requirements for Secondary Containment
and Operator Training
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
———————————————————————–
SUMMARY: EPA is proposing to make certain revisions to the 1988
underground storage tank (UST) technical, financial responsibility, and
state program approval regulations. These changes establish federal
requirements that are similar to key portions of the Energy Policy Act
of 2005; they also update certain 1988 UST regulations. Proposed
changes include: Adding secondary containment requirements for new and
replaced tanks and piping; adding operator training requirements;
adding periodic operation and maintenance requirements for UST systems;
removing certain deferrals; adding new release prevention and detection
technologies; updating codes of practice; making editorial and
technical corrections; and updating state program approval requirements
to incorporate these new changes. These changes will likely protect
human health and the environment by increasing the number of prevented
UST releases and quickly detecting them, if they occur.
DATES: Comments must be received on or before February 16, 2012. Under
the Paperwork Reduction Act, comments on the information collection
provisions are best assured of having full effect if the Office of
Management and Budget (OMB) receives a copy of your comments on or
before December 19, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
UST-2011-0301, by one of the following methods:
http://www.regulations.gov; Follow the online instructions
for submitting comments.
Email: mcdermott.elizabeth@epa.gov.
Mail: EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-
UST-2011-0301, Mail Code 2822T, 1200 Pennsylvania Ave. NW., Washington,
DC 20460. In addition, please mail a copy of your comments on the
information collection provisions to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk
Officer for EPA, 725 17th St. NW., Washington, DC 20503.
Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave. NW., Washington, DC 20460. Attention
Docket ID No. EPA-HQ-UST-2011-0301. Such deliveries are only accepted
during the Docket’s normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-UST-
2011-0301. EPA’s policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an “anonymous access” system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through http://www.regulations.gov your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA’s public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.govindex. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Docket, EPA/DC,
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the EPA
Docket Center (EPA/DC) is (202) 566-0276.
FOR FURTHER INFORMATION CONTACT: Elizabeth McDermott, OSWER/OUST
(5401P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460; telephone number: (703) 603-7175; email address:
mcdermott.elizabeth@epa.gov.
Table of Contents
I. General Information
Does this action apply to me?
What should I consider as I prepare my comments for EPA?
II. Authority
III. Background
Why is EPA changing the UST regulations?
What is the history of the UST laws and regulations?
What is the impact of this proposal?
What was EPA’s process in deciding which changes to incorporate
in the regulations?
IV. Proposed Revisions to the Requirements for Owners and Operators
of Underground Storage Tanks
A. Changes To Establish Federal Requirements for Operator
Training and Secondary Containment
1. Operator Training
2. Secondary Containment
B. Additional Requirements for Operation and Maintenance
1. Walkthrough Inspections
2. Spill Prevention Equipment Tests
3. Overfill Prevention Equipment Tests
4. Secondary Containment Tests
5. Operation and Maintenance Requirements for Release Detection
Equipment
C. Addressing Deferrals
1. Emergency Power Generator UST Systems
2. Airport Hydrant Fuel Distribution Systems
3. UST Systems With Field-Constructed Tanks
4. Wastewater Treatment Tank Systems
5. Maintain Deferral for USTs Containing Radioactive Material
and Emergency Generator UST Systems at Nuclear Power Generation
Facilities Regulated by the Nuclear Regulatory Commission
D. Other Changes
1. Changes to Overfill Prevention Equipment Requirements
2. Internal Linings That Fail the Periodic Lining Inspection and
Cannot Be Repaired
3. Notification Requirements
4. Alternative Fuels and Compatibility
5. Improving Repairs
[[Page 71709]]
6. Phase Out Vapor Monitoring and Groundwater Monitoring as
Release Detection Methods
7. Interstitial Monitoring Results, Including Interstitial
Alarms, Under Subpart E
E. General Updates
1. Incorporate Newer Technologies
2. Updates to Codes of Practice Listed in the UST Regulation
3. Updates To Remove Old Upgrade and Implementation Deadlines
4. Editorial and Technical Corrections
F. Alternative Options EPA Considered
V. Updates to State Program Approval Requirements
VI. Overview of Estimated Costs and Benefits
VII. Statutory and Executive Orders
A. Executive Order 12866: Regulatory Planning and Overview and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
SUPPLEMENTARY INFORMATION:
I. General Information
Does this action apply to me?
In the table below, EPA is providing a list of potentially affected
entities. However, this proposed action may affect other entities not
listed below. The Agency’s goal with this section is to provide a guide
for readers to consider regarding entities that potentially could be
affected by this action. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding section titled FOR FURTHER INFORMATION CONTACT.
Industry Sectors Potentially Affected by the Proposed Rule
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Industry sector NAICS code
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Retail Motor Fuel Sales……… 447.
Commercial (wholesale trade, 42, 44-45, 72 (excluding 447).
retail trade, accommodation,
and food services).
Institutional (hospitals only).. 622.
Manufacturing………………. 31-33.
Transportation (air, water, 481, 483-486, 48811.
truck, transit, pipeline, and
airport operations).
Communications and Utilities 5171, 2211.
(wired telecommunications
carriers; and electric power
generation, transmission, and
distribution).
Agriculture (crop and animal 111, 112.
production).
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What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. Authority
EPA is proposing these regulations under the authority of sections
2002, 9001, 9002, 9003, 9004, 9005, 9006, 9007, and 9009 of the Solid
Waste Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act of 1976, as amended [42 U.S.C. 6912, 6991, 6991(a),
6991(b), 6991(c), 6991(d), 6991(e), 6991(f), 6991(h), 6991(i), and
6991(k)].
III. Background
EPA is proposing certain changes to the 1988 underground storage
tank (UST) regulations in 40 CFR part 280. In addition, EPA is planning
to implement the delivery prohibition provision of the Energy Policy
Act of 2005 (hereafter called Energy Policy Act) for EPA-led
inspections, but will address that independent of today’s proposal.
Finally, EPA is proposing to revise its state program approval (SPA)
requirements in 40 CFR part 281 to incorporate the changes in 40 CFR
part 280. While EPA’s proposed changes to the 1988 UST regulations will
improve environmental protection, we are sensitive to future costs for
UST owners and operators and, as a result, minimized required
retrofits.
This proposal strengthens the 1988 UST regulation by increasing the
emphasis on properly operating and maintaining equipment. The 1988 UST
regulation required owners and operators have spill, overfill, and
release detection equipment in place, but did not require proper
operation and maintenance for some of that equipment. For example, EPA
required spill prevention equipment to capture drips and spills when
the delivery hose is disconnected from the fill pipe but did not
require periodic testing of that equipment. Today’s proposed revisions
will require that UST equipment is operated and maintained properly,
which will improve environmental protection. These changes also
acknowledge improvements in technology over the last 20 years,
including the ability to detect releases from deferred UST systems.
[[Page 71710]]
Why is EPA changing the UST regulations?
EPA is proposing to revise the 1988 UST regulations to:
Establish federal requirements that are similar to certain
key provisions of the Energy Policy Act;
Ensure owners and operators properly operate and maintain
their UST systems;
Include updates to current technology and codes of
practices;
Make technical and editorial corrections; and
Update SPA regulation to address the proposed changes
listed above.
In 1988, EPA first promulgated the UST regulations (40 CFR part
280) to prevent, detect, and clean up petroleum releases into the
environment. The 1988 UST regulations required new UST systems to be
designed, constructed, and installed to prevent releases; existing UST
systems had to be upgraded to prevent releases. In addition, owners and
operators were required to perform release detection, demonstrate
financial responsibility, and clean up releases.
The Energy Policy Act amended Subtitle I of the Solid Waste
Disposal Act (SWDA), the statute that authorized the UST program. Key
Energy Policy Act provisions (such as secondary containment and
operator training) apply to all states receiving federal Subtitle I
money under SWDA, regardless of their state program approval status,
but do not apply in Indian country (or in states and U.S. territories
that do not meet EPA’s operator training or secondary containment grant
guidelines). The U.S. has a unique legal relationship with federally
recognized Indian Tribes. This government to government relationship
includes recognizing the rights of Tribes as sovereign governments to
self-determination and acknowledging the federal government’s trust
responsibility to Tribes. As a result, EPA directly implements the UST
program in Indian country.
In order to establish federal UST requirements that are similar to
the UST secondary containment and operator training requirements of the
Energy Policy Act, EPA decided to revise the 1988 UST regulations. EPA
also decided to revise the 1988 UST regulations in order to achieve
better release prevention and compliance results (see section IV.B.
Additional Requirements for Operation and Maintenance for additional
information). Today’s proposed revisions also fulfill objectives in
EPA’s UST Tribal Strategy (August 2006), where both EPA and Tribes
recognized the importance of requirements that ensure parity in program
implementation among states and in Indian country. Requiring secondary
containment will reduce releases to the environment by containing them
within a secondary area and detecting them before they reach the
environment. Operator training will educate UST system operators and
help them prevent releases by complying with the regulation and
performing better operation and maintenance of their UST systems.
Since the beginning of the UST program, preventing petroleum and
hazardous substance releases from UST systems into the environment has
been one of the primary goals of the program. Although EPA and our
partners have made significant progress in reducing the number of new
releases, approximately 7,000 releases are discovered each year as of
FY 2009.\1\ Lack of proper operation and maintenance of UST systems is
a main cause of new releases. Information on sources and causes of
releases shows that releases from tanks are less common than they once
were. However, releases from piping and spills and overfills associated
with deliveries have emerged as more common problems. In addition,
releases at the dispenser are one of the leading sources of releases.
Finally, data show that release detection equipment is only detecting
approximately 50 percent of releases it is designed to detect. These
problems are partly due to improper operation and maintenance (see
section IV.B. Additional Requirements for Operation and Maintenance for
a more detailed discussion of problems).2 3
—————————————————————————
\1\ Semi-Annual Report Of UST Performance Measures, End Of
Fiscal Year 2009, http://epa.gov/oust/cat/camarchv.htm.
\2\ Petroleum Releases At Underground Storage Tank Facilities In
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\3\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
—————————————————————————
EPA relies on two draft causes of release studies to help support
this proposed rule. Petroleum Releases at Underground Storage Tank
Facilities in Florida contains release data on 512 releases from new
and upgraded tanks in Florida.\4\ The second draft study, Evaluation of
Releases from New and Upgraded Underground Storage Tank Systems,
contains release data on 580 releases from new and upgraded tanks in 23
states across the Northeast, South, and Central parts of the United
States.\5\ Taken together, these draft studies provide information
about 1092 releases in 24 of the 50 states. The data in the two
studies, when taken as a whole, generally provide a representative
sampling of releases across the United States because nearly half of
the states contributed to the studies. Both drafts were peer reviewed
but never finalized because the passage of Energy Policy Act of 2005
required a reallocation of personnel and resources. Even though these
studies were never finalized, the underlying data and calculations can
be used to support this proposed rule because that information did not
change as a result of the peer review process.
—————————————————————————
\4\ Petroleum Releases At Underground Storage Tank Facilities In
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\5\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
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Many USTs currently in the ground were upgraded to meet the spill,
overfill, corrosion protection, and release detection requirements in
the 1988 UST regulation. As these USTs continue to age, it is vital
that we improve UST operation and maintenance and test components to
ensure they are still working as intended. Today’s proposed revisions
to the 1988 UST regulation focus on ensuring equipment is working,
rather than requiring UST owners and operators to replace or upgrade
equipment already in place. The 1988 UST regulation require owners and
operators to use equipment that could help prevent releases; today’s
proposed revisions highlight the importance of operating and
maintaining UST equipment so releases are prevented and detected early
in order to avoid or minimize potential soil and groundwater
contamination.
EPA is proposing changes to the SPA regulation (40 CFR part 281) to
address today’s proposed changes to 40 CFR part 280. By doing so, EPA
will require states to generally adopt the 40 CFR part 280 changes
proposed today in order to obtain or retain SPA.
What is the history of the UST laws and regulations?
In 1984, Congress responded to the increasing threat to groundwater
posed from leaking USTs by adding Subtitle I to the Solid Waste
Disposal Act (SWDA). Subtitle I of SWDA required EPA to develop a
comprehensive regulatory program for USTs storing petroleum or certain
hazardous substances, ensuring that the environment and human health
are protected from UST releases. In 1986, Congress amended Subtitle I
of SWDA and created the Leaking Underground
[[Page 71711]]
Storage Tank Trust Fund to implement a cleanup program and pay for
cleanups at sites where the owner or operator is unknown, unwilling, or
unable to respond, or which require emergency action.
In 1988, EPA promulgated the UST regulation (40 CFR part 280),
which set minimum standards for new tanks and required owners and
operators of existing tanks to upgrade, replace, or close them. In
addition, after 1988 owners and operators were required to report and
clean up releases from their USTs. The 1988 UST regulation set
deadlines for owners and operators to meet those requirements by
December 22, 1998. Owners and operators who chose to upgrade or replace
had to ensure their UST systems included spill and overfill prevention
equipment and were protected from corrosion. In addition, owners and
operators were required to monitor their UST systems for releases using
release detection (phased in during the 1990s, depending on when their
UST systems were installed). Finally, owners and operators were
required to have financial responsibility (phased in through 1998),
which ensured they have financial resources to pay for cleaning up
releases. EPA has not significantly changed the UST regulation since
1988.
In 1988, EPA also promulgated a regulation for state program
approval (40 CFR part 281). Since states are the primary implementers
of the UST program, EPA established a process where state programs
could operate in lieu of the federal program if states met certain
requirements and obtained state program approval from EPA. The state
program approval regulation describes minimum requirements states must
meet so their programs can be approved and operate in lieu of the
federal program.
In 2005, the Energy Policy Act further amended Subtitle I of SWDA.
The Energy Policy Act required states receiving Subtitle I money from
EPA meet certain requirements. EPA developed grant guidelines for
states regarding operator training, inspections, delivery prohibition,
secondary containment, financial responsibility for manufacturers and
installers, public record, and state compliance reports on government
USTs. The operator training and secondary containment requirements are
two major pieces of the Energy Policy Act that currently do not apply
in Indian country, but will apply when EPA finalizes today’s proposed
regulation.
What is the impact of this proposal?
This proposal will ensure parity in program implementation among
states and in Indian country. This proposal will achieve parity by
adding certain requirements to the federal UST regulation (that would
apply in Indian country) that are similar to the operator training and
secondary containment requirements in the Energy Policy Act. This
action will also further strengthen protection of human health and the
environment from UST releases by increasing the emphasis on proper
operation and maintenance of release prevention and detection
equipment. Today’s proposed revisions also reflect improvements in
technology that allow for the ability to prevent and quickly detect
releases for many tank systems that are currently deferred. The
regulatory changes proposed today impose costs to owners and operators
of existing regulated UST systems, owners and operators of certain
deferred USTs, as well as costs associated with state review of the
regulatory changes. EPA prepared an analysis of the potential
incremental costs and benefits associated with this action. This
analysis is contained in the regulatory impact analysis (RIA) titled
Assessment Of The Potential Costs, Benefits, And Other Impacts Of The
Proposed Revisions To EPA’s Underground Storage Tank Regulations, which
is available in the docket for this proposal. A summary of these
impacts is provided under the Statutory Review section of this preamble
and in the table below.
Costs and Benefits of the Proposed Rule
[2008$ millions]
————————————————————————
7% Discount rate 3% Discount rate
————————————————————————
Total Annual Compliance Costs….. $210 $210
Total Annual Avoided Costs…….. $300-$740 $330-$770
Net Cost (Savings) to Society….. ($530-$90) ($560-$120)
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EPA also prepared a risk assessment titled Risk Analysis to Support
Potential Revisions to Underground Storage Tank (UST) Regulations,
associated with the regulatory changes. The risk assessment examines
potential impacts to groundwater and subsequent chemical transport,
exposure and risk. It is available for review in the docket for this
proposal.
What was EPA’s process in deciding which changes to incorporate in the
regulations?
After the Energy Policy Act became law, EPA recognized a need to
revise the 1988 UST regulations. The Energy Policy Act required
additional measures to protect groundwater (either with secondary
containment or financial responsibility for manufacturers and
installers) and operator training requirements in states receiving
federal Subtitle I money from EPA. However, no similar requirements
would apply in Indian country until EPA promulgates a regulation. Both
EPA and Tribes are committed to ensuring program parity between states
and in Indian country, and today’s proposed regulation, when final,
will achieve this parity.
For over 20 years, the 1988 UST regulations worked well. However,
two decades of experience implementing the UST program have shown there
are a number of areas where EPA can improve the UST program and
increase environmental protection. For example, updating the regulation
to reflect current technologies and ensuring release prevention and
release detection equipment are properly operated and maintained have
surfaced as important regulatory changes.
From the start, EPA embraced an open, inclusive, and transparent
process so all UST stakeholders had an opportunity to share their ideas
and concerns. EPA recognizes concerns about costs to owners and
operators and the importance of limiting requirements for retrofits. In
developing this rule, we reached out to stakeholders involved in all
aspects of the tank program, provided multiple opportunities for
sharing ideas, and kept stakeholders informed of progress.
Using information from our extensive outreach, EPA compiled
potential proposed changes to the 1988 UST regulations. We added or
deleted items to the list of changes based on data, analysis, costs and
benefits resulting from the proposed changes, and EPA discretion.
Ultimately, EPA identified
[[Page 71712]]
the items in today’s proposal as most appropriate.
IV. Proposed Revisions to the Requirements for Owners and Operators of
Underground Storage Tanks
The following sections describe EPA’s proposal, starting with
requirements for operator training and secondary containment. The next
four sections address changes to the existing regulation in 40 CFR part
280, organized by topic: Additional requirements for operation and
maintenance; proposed approach for currently deferred tanks; other
changes to improve release prevention and release detection; and
general updates to the 1988 UST regulation. Finally, there is a section
describing alternative options considered.
After each proposed regulatory change, EPA poses some questions to
which readers may wish to respond. In addition to these specific
questions, readers may provide comments to any other area of the
proposal on which they wish to comment.
A. Changes To Establish Federal Requirements for Operator Training and
Secondary Containment
1. Operator Training
What is EPA proposing?
EPA is proposing to add a new subpart, subpart J–Operator
Training, to 40 CFR part 280. Through subpart J, EPA is proposing the
following training requirements for three UST system operator classes.
New Definitions
EPA is proposing the following new terms and definitions:
Class A operator–individual with primary responsibility
for operating and maintaining an UST system according to applicable
requirements established by the implementing agency. The Class A
operator typically manages resources and personnel, such as
establishing work assignments, to achieve and maintain compliance with
regulatory requirements.
Class B operator–individual with day-to-day
responsibility for implementing applicable regulatory requirements
established by the implementing agency. The Class B operator typically
implements in the field aspects of operation, maintenance, and
associated recordkeeping for an UST system.
Class C operator–employee responsible for initially
addressing emergencies presented by a spill or release from an UST
system. The Class C operator typically controls or monitors dispensing
or sale of regulated substances.
Training program–any program established by the
implementing agency that provides information to and evaluates the
knowledge of a Class A, Class B, or Class C operator regarding
requirements for UST systems.
Training Requirements
How operators are designated–UST owners and operators
must designate individuals for each of the three operator classes. UST
owners and operators must designate at least one Class A and one Class
B operator for each UST or group of USTs at a facility. UST owners and
operators must designate all of their employees who meet the Class C
operator definition as Class C operators.
Who must be trained–This proposed training requirement
covers all UST systems storing regulated substances. UST owners and
operators must ensure designated individuals meet specific training
requirements according to the operator class in which they are
designated.
Requirements for operator training–UST owners and
operators must ensure operators in each class successfully complete
training programs or comparable examinations that, at a minimum, cover
these areas:
[cir] Class A operator–spill and overfill prevention; release
detection; corrosion protection; emergency response; product and
equipment compatibility; financial responsibility; notification and
storage tank registration; temporary and permanent closure; related
reporting and recordkeeping; environmental and regulatory consequences
of releases; and training requirements for Class B and C operators.
Training for Class A operators is general on all listed areas.
[cir] Class B operator–operation and maintenance; spill and
overfill prevention; release detection and related reporting; corrosion
protection and related testing; emergency response; product and
equipment compatibility; reporting and recordkeeping; environmental and
regulatory consequences of releases; and training requirements for
Class C operator. Training for Class B operators may be general or
specific to a Class B operator’s site.
[cir] Class C operator–appropriate action to take in response to
emergencies (including situations posing an immediate danger or threat
to the public or environment and that require immediate action) or
alarms caused by spills or releases from an UST system. Training for
Class C operators may be general or specific to a Class C operator’s
site.
Training programs for Class A and B operators must, at a
minimum, teach and evaluate their knowledge on the purpose, methods,
and functions of items listed in the minimum training areas above.
Training programs for Class C operators must teach and evaluate their
knowledge of the items listed in the minimum training areas above.
A training program must meet the minimum requirements
discussed above and evaluate knowledge through a test, practical
demonstration, or another approach acceptable to the implementing
agency. In lieu of a training program, all three operator classes must
pass comparable examinations that assess their knowledge in the minimum
training areas above.
The evaluation component of training programs and
comparable examinations must be developed and administered by an
independent organization, the implementing agency, or delegated
authority.
When designated operators must complete operator
training–UST owners and operators must ensure all designated Class A,
B, and C operators are trained or successfully complete a comparable
examination according to criteria and within time frames in the
schedule below. Phase in is based on when USTs were installed because
newer UST systems tend to have fewer releases than older UST
systems.\6\
—————————————————————————
\6\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
[[Page 71713]]
Phase-In Schedule for Operator Training
—————————————————————————————————————-
Criteria Date when operator training or comparable examination is required
—————————————————————————————————————-
One or more USTs at the facility were One year after effective date of rule.
installed on or before 12/22/1988.
No USTs at the facility were installed on Two years after effective date of rule.
or before 12/22/1988 and at least one
UST at the facility was installed on or
before 12/22/1998.
All USTs at the facility were installed Three years after effective date of rule.
after 12/22/1998.
—————————————————————————————————————-
After the last date in the table above, UST owners and operators
must ensure designated Class A and B operators are trained within 30
days of assuming duties. Designated Class C operators must be trained
before assuming their duties.
Retraining–Class A and B operators of UST systems
determined by the implementing agency to be out of compliance must
complete a training program or comparable examination in accordance
with requirements in Sec. 280.242. At a minimum, training must cover
the area(s) determined to be out of compliance. Retraining must occur
within 30 days from the date an implementing agency determines an UST
system is out of compliance. Retraining is not required if:
[cir] Class A and B operators take annual refresher training which
covers all applicable training requirements for their operator class;
or
[cir] The implementing agency, at its discretion, grants a waiver
relinquishing the Class A and B operators from meeting the retraining
requirement.
Documentation–UST owners and operators must maintain
documents that identify all operators by class and demonstrate that
training or retraining, if necessary, was completed. These documents
must contain:
[cir] A list of designated Class A, B, and C operators for each UST
facility–Include names, operator class trained, date assumed duties,
date completed initial training, and date of any retraining. These
records must be maintained for all Class A, B, and C operators at the
facility for the previous three years.
[cir] Proof of training or retraining–A paper or electronic record
that, at a minimum, includes name of trainee, date trained, and
operator class. In addition, records from classroom or field training
programs or a comparable examination, must be signed by the trainer or
examiner and include the printed name of the trainer or examiner,
company name, address, and phone number. Records from computer-based
training, at a minimum, must include the name of the training program
and web address, if Internet-based. Records of retraining must include
those areas on which the Class A or B operator was retrained. Records
of training or retraining must be maintained as long as the Class A,
Class B, and Class C operators are designated at the facility.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing operator training requirements to ensure that all
regulated UST systems are operated by properly trained individuals. The
operator training provision of the Energy Policy Act requires state
implementing agencies, as a condition of receiving federal Subtitle I
money, develop state-specific training requirements for three classes
of UST system operators. EPA issued grant guidelines that provide
minimum requirements state operator training programs must include in
order for states to continue receiving federal Subtitle I money.\7\ The
operator training grant guidelines apply to most UST systems in the
United States; however, not all are covered. UST systems not covered
include those in Indian country where EPA is the primary implementing
agency, and in states and territories that do not meet the requirements
of EPA’s operator training grant guidelines.
—————————————————————————
\7\ Grant Guidelines To States For Implementing The Operator
Training Provision Of The Energy Policy Act Of 2005: http://www.epa.gov/oust/fedlaws/optraing.htm.
—————————————————————————
Through today’s proposal, EPA is closing the gap in coverage and
ensuring all operators are trained according to their level of
responsibility, as designated as Class A, B, or C. Sufficiently
training UST operators will increase compliance with regulatory
requirements. In addition, operator training may decrease UST system
releases by educating Class A, B, and C operators about their UST
system requirements, and may result in greater protection of human
health and the environment.
Today’s proposed operator training regulation for UST owners and
operators is consistent with the requirements in EPA’s operator
training grant guidelines for states. In both, EPA establishes minimum
operator training requirements, yet allows flexibility to tailor
training programs for specific needs. This means that although there
may be variations among operator training programs, all Class A, B, and
C operators will be trained to meet minimum requirements.
Definitions–EPA is proposing specific definitions of the three
operator classes to distinguish them from the term operator defined in
the 1988 UST regulation. Only if a Class A, B, or C operator meets the
definition of operator in the 1988 UST regulation will he or she then
be subject to the same responsibilities and liabilities as an operator.
EPA’s proposed definitions of Class A, B, and C operators do not
relieve owners and operators, as defined in the 1988 UST regulation,
from any legal responsibility. EPA based the proposed three operator
class definitions on duties each typically performs at UST facilities.
EPA is proposing a definition for training program. It is important
that training programs for Class A, B, and C operators include both
sharing information and evaluating knowledge.
How operators are designated–EPA is proposing how UST owners and
operators designate the three operator classes for their facilities.
EPA is taking the position that designating at least one Class A and B
operator at each facility is sufficient. Class A and B operators can
provide adequate training to Class C operators, which should ease UST
owners’ and operators’ ability to comply with this requirement. Because
a Class C operator’s duties typically place him or her in a position of
providing initial response to an emergency, any UST owner’s and
operator’s employee who meets the Class C operator definition must be
designated as such and trained in emergency response.
EPA will allow UST owners and operators to designate contractors as
their Class A and B operators as long as they are responsible for all
areas required in the training for the class of operator designated.
UST owners and operators must maintain documentation containing
individual names of Class A and B contractors who complete operator
training. It will be easier for implementing agencies to verify
training, retraining, and refresher training using individual names
rather
[[Page 71714]]
than company names. All Class C operators must be employees of the UST
system owner and operator.
EPA wants to ensure Class A and B operator training addresses all
components and encompasses the entire UST system. If an UST system is
out of compliance and the implementing agency determines retraining is
required, Class A or B operators must either be retrained or take
annual refresher training. EPA cautions UST owners and operators to
consider whether contractors serving as Class A or B operators can be
designated. Because some contractors specialize in UST services, they
might not be eligible to be Class A or B operators. For example, if a
contractor is only responsible for release detection compliance, that
contractor would not be eligible to be a Class A or B operator because
he or she is not responsible for all required training areas.
EPA realizes many UST owners and operators may want to designate
one person at an UST facility as responsible for all Class A, B, and C
operator duties. EPA will allow one person to serve in multiple
operator classes; however, that person must be trained for each class
designated.
Who must be trained–When final, today’s proposal will require
training for designated Class A, B, and C operators at UST systems
regulated under Subtitle I. This includes UST systems of all attended
and unattended facilities. An unattended UST facility means a Class A,
B, or C operator may not be present during times when a facility is
operating. Nonetheless, even at unattended UST facilities, designated
Class A, B, and C operators must still meet the operator training
requirement.
Requirements for operator training–EPA based the three operator
classes on duties each typically performs at UST facilities. Building
on that, EPA is proposing each person designated in an operator class
pass an examination comparable to the training program, or meet a
specific training program, which will:
For Class A operator, teach and evaluate his or her
knowledge to make informed decisions regarding compliance and determine
whether appropriate people are fulfilling the operation, maintenance,
and recordkeeping requirements for UST systems.
For Class B operator, teach and evaluate his or her
knowledge and skills to implement UST regulatory requirements on
typical UST system components or site-specific equipment at the UST
facility.
For Class C operator, teach and evaluate his or her
knowledge to take appropriate action in response to emergencies
(including situations posing an immediate danger or threat to the
public or environment and that require immediate action) or alarms
caused by spills or releases from an UST system.
For each class of operator, EPA considered developing specific
training curricula that would prescribe length of training, areas to
cover, and trainer qualifications. EPA decided that providing the
general criteria requirements presented in today’s proposal is the best
approach because they provide flexibility while being comparable to
EPA’s operator training grant guidelines for states and ensuring each
class of operator is trained.
EPA proposes not to restrict who may develop and administer the
training component of a training program. However, to avoid potential
conflicts of interest, EPA proposes to only allow independent
organizations to develop and administer the evaluation component
training programs and comparable examinations, as long as they meet the
minimum requirements in today’s proposal. EPA considers independent
organizations to include a wide array of program providers who are not
affiliated with the Class A, B, or C operators they are training. For
example, Class A or B operators can train other Class A or B operators
at the same UST facility, but they cannot develop or conduct the
evaluation component of the training program for those operators.
However, as discussed earlier, Class A or B operators can train and
evaluate Class C operators. In addition, the implementing agency may
develop and administer a training program or comparable examination.
Although not specifically listed in the regulation, EPA will allow
a variety of ways to train operators. These include classroom,
computer-based, hands on, and any combination of these.
Accepted in lieu of completing a training program, Class A, B, or C
operators can pass a comparable examination (for example, via
classroom, Internet, or computer program) that meets the requirements
for operator training criteria described in today’s proposal.
When designated operators must complete operator training–EPA is
proposing that UST owners and operators ensure all Class A, B, and C
operators successfully complete a training program or a comparable
examination over three years, based on UST installation dates. This
phased-in approach will stagger the need for operator training and
reduce a rush at the end of the initial three year period. Since older
USTs potentially pose a greater risk to the environment, EPA decided
Class A, B, and C operators of those systems should be trained first.
After the initial three year phase-in period and for consistency
with EPA’s operator training grant guidelines for states, EPA is
proposing new Class A, B, and C operators be trained as follows:
Class A and B operators must be trained within 30 days of
assuming duties. 30 days are sufficient for Class A and B operators to
receive operator training.
Class C operators must be trained before they assume their
duties; it is critical that they are trained immediately in order to
respond to emergencies.
Retraining–UST system noncompliance can be an indication that
Class A and B operators are not doing what is necessary to maintain
compliance. If an UST system is out of compliance, then generally,
Class A and B operators designated for that UST system need to be
retrained. Retraining must, at a minimum, cover those areas determined
by the implementing agency to be out of compliance. Retraining must be
completed within 30 days of the implementing agency making a final
determination of noncompliance. EPA is proposing to allow annual
refresher training in lieu of retraining as long as all training areas
required by regulation are covered. Refresher training must have been
in place at the time the implementing agency determined the UST system
was out of compliance.
EPA is also proposing to allow implementing agencies, at their
discretion, to waive the retraining requirement. EPA recommends that
such a waiver be in writing. In granting a waiver, EPA expects the
implementing agency to consider factors such as the severity and areas
of noncompliance. In those instances where UST system noncompliance
violations do not warrant retraining, EPA encourages implementing
agencies to provide information to Class A and B operators so they are
able to return their facilities to compliance. These allowances will
provide greater flexibility for UST owners and operators to meet the
retraining requirement. This proposal is consistent with EPA’s
retraining requirement for noncompliance with significant operational
compliance requirements and an annual refresher training allowance
provided in our operator training grant guidelines for states.
EPA considered requiring retraining when UST facilities change
equipment,
[[Page 71715]]
but decided this would be an unnecessary burden on both the regulated
community and implementing agencies. If an UST system is out of
compliance because of an equipment change, EPA is proposing that the
implementing agency require that UST owners and operators ensure Class
A and B operators are retrained as proposed above.
Documentation–EPA is proposing UST owners and operators maintain a
list of Class A, B, and C operators at each UST facility for the
previous three years. Keeping this list for three years is adequate
because it is consistent with the inspection frequency provided by the
Energy Policy Act. Owners and operators must have a list of trained
operators for the past three years each time they are inspected. In
addition, UST owners and operators must also document verification of
training or retraining, as appropriate, for each class of operator. EPA
will require basic information to document Class A, B, and C operators
and confirm they are appropriately trained. For example, classroom
training must be signed by the trainer; computer based training does
not require a signature but must indicate the name of the training.
Records verifying training or retraining must be maintained as long as
the Class A, B, and C operators are designated at the facility. This
time frame will allow owners and operators to demonstrate Class A, B,
and C operators are trained as long as they are designated at the
facility.
What issues related to this change does EPA request comment or
additional data on?
Should EPA impose a limit on the number of USTs or
facilities a Class A or B operator is responsible for? If so, what
should the limit be and why?
EPA is seeking information about the number of unattended
regulated UST facilities in the United States. How many regulated UST
facilities are unattended in the United States?
EPA is basing the initial period for meeting the training
requirement on the UST installation date. Should we consider other
criteria? If so, what and why?
Is there a need for a phased-in schedule for operator
training? If so, is EPA’s proposed schedule reasonable?
Does EPA’s proposal prohibit training approaches currently
available? If so, which ones and why?
Should EPA prohibit particular training approaches? If so,
which ones and why?
Although operators can access any available information
source to obtain necessary knowledge of UST systems, in order to
address potential conflicts of interest concerns, only independent
organizations are allowed to develop and administer the evaluation
component of training programs and comparable examinations. Are there
cases where EPA should consider exceptions to this proposed
requirement?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
2. Secondary Containment
What is EPA proposing?
EPA is proposing to add in 40 CFR part 280 secondary containment
and interstitial monitoring requirements for new and replaced tanks and
piping. In addition, UST systems must have under-dispenser containment
for new dispenser systems.
New Definitions
EPA is proposing the following new terms and definitions:
Dispenser system–Equipment located above ground that
meters the amount of regulated substances transferred to a point of use
outside the UST system, such as a motor vehicle. This system includes
equipment necessary to connect the dispenser to the UST system.
Replaced–
[cir] For a tank: To remove a tank and install another tank.
[cir] For piping: To remove 50 percent or more of piping and
install other piping, excluding connectors, connected to a single tank.
For tanks with multiple piping runs, this definition applies
independently to each piping run.
Secondary containment or secondarily contained–A release
prevention and release detection system for a tank and/or piping. This
system has an inner and outer barrier with an interstitial space that
is monitored for leaks.
Under-dispenser containment (UDC)–Containment underneath
a dispenser system designed to prevent dispenser system leaks from
reaching soil or groundwater.
Secondary Containment
EPA is proposing owners and operators install secondary containment
(including interstitial monitoring) for new or replaced tanks and
piping installed after the effective date of the final UST regulation.
EPA is not proposing secondary containment for the following types of
piping:
Suction piping that meets the requirements of Sec.
280.41(b)(2)(i) through (v), sometimes called safe suction piping; and
Piping associated with field-constructed tanks and airport
hydrant fuel distribution systems.
EPA is proposing secondarily contained tanks and piping be:
Able to contain regulated substances leaked from the
primary containment until they are detected and removed;
Able to prevent release of regulated substances to the
environment at any time during the operational life of the UST system;
and
Monitored for a leak at least once every 30 days using
interstitial monitoring according to Sec. 280.43(g).
In addition to the requirements above, pressurized piping must have
an automatic line leak detector according to Sec. 280.44(a).
EPA is proposing to remove the option in Sec. 280.42 for owners
and operators to use a release detection method other than interstitial
monitoring for hazardous substance USTs installed after the effective
date of the final UST regulation.
Under-Dispenser Containment
EPA is proposing owners and operators install under-dispenser
containment beneath new dispenser systems at UST systems. EPA will
incorporate this new requirement by adding a new subsection (f) to
Sec. 280.20, which will require under-dispenser containment beneath
each new dispenser system at an UST system.
EPA is proposing a dispenser system be considered new when both the
dispenser system and equipment needed to connect the dispenser system
to the UST system are installed at an UST facility. The equipment
connecting the dispenser system to the UST system includes check
valves, shear valves, unburied risers or flexible connectors, or other
transitional components beneath the dispenser that connect it to
underground piping. Finally, under-dispenser containment must be liquid
tight on its sides, bottom, and at any penetrations and allow for
visual inspection and access to the components in the containment
system, or must be continuously monitored for leaks from the dispenser
system.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing this change to prevent regulated substances from
reaching the environment and ensure a consistent level of environmental
protection for regulated UST systems across the United States. Data
from
[[Page 71716]]
release sites show a higher number of releases from single-walled tanks
and piping when compared to secondarily contained systems.\8 9\
Releases could be reduced for tanks and piping if they are secondarily
contained.
—————————————————————————
\8\ Petroleum Releases At Underground Storage Tank Facilities In
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\9\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
—————————————————————————
The Energy Policy Act requires state implementing agencies, as a
condition of receiving federal Subtitle I money, implement additional
measures to protect groundwater. Under the law, state implementing
agencies’ choices to protect groundwater were secondary containment
(including under-dispenser containment) or financial responsibility for
manufacturers and installers (and installer certification). 54 of 56
state implementing agencies chose secondary containment. The Energy
Policy Act did not specifically require additional measures to protect
groundwater in Indian country. As the primary implementer for more than
2,600 UST systems in Indian country, \10\ EPA is proposing secondary
containment for new and replaced tanks and piping along with under-
dispenser containment beneath all new dispenser systems at UST systems.
Over the last seven years, approximately 25 new UST systems per year
were installed in Indian country.\11\ The final UST regulation will
bring UST systems in Indian country to the same level of environmental
protection as those regulated by states.
—————————————————————————
\10\ Semi-Annual Report Of UST Performance Measures, End Of
Fiscal Year 2009, http://epa.gov/oust/cat/camarchv.htm.
\11\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
The Energy Policy Act requires states that receive federal Subtitle
I money (and that choose the secondary containment option) to have
secondary containment and under-dispenser containment for tanks,
piping, and dispensers only if they are installed or replaced within
1,000 feet of an existing community water system or potable drinking
water well.\12\ However, EPA is proposing all new and replaced tanks
and piping have secondary containment and UST systems have under-
dispenser containment beneath all new dispenser systems for the
following reasons:
—————————————————————————
\12\ Title XV, subtitle B, Section 1530 of Energy Policy Act of
2005, 109th Congress Public Law 58, August 8, 2005.
—————————————————————————
Nearly all new and replaced tanks and piping are installed
within 1,000 feet of an existing community water system or potable
drinking water well. We assume that any UST listed with a commercial
ownership type (i.e., gas station) is located within 1,000 feet of an
on-site well or public water line because nearly all commercially-owned
facilities with USTs require water utilities in order to operate and
all privately owned facilities (i.e., fleet fueling for non-marketers)
are also assumed to be in close proximity to some type of water supply
given that these sites are typically combined with other functional
operations (office, maintenance, manufacturing, etc.) and require water
for restrooms, water fountains, shops, etc.;\13\
—————————————————————————
\13\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
Some state implementing agencies that require secondary
containment only within 1,000 feet of one of these water sources have
informed EPA that installations of single-walled tanks or piping are
not occurring; and
Secondary containment and under-dispenser containment will
help protect other sensitive areas, such as designated source water
protection areas, natural springs, and surface waters.
EPA is not proposing secondary containment for piping that meets
the requirements of 280.41(b)(2)(i) through (v), sometimes called safe
suction piping because it is currently not required to meet release
detection requirements. This type of piping uses a suction pump to
deliver regulated substances from the UST to the dispenser. Safe
suction piping operates at less than atmospheric pressure, slopes back
towards the UST so regulated substances drain to the UST if suction is
lost, and has only one check valve located close to the suction pump.
As discussed in the 1988 UST regulation preamble, these characteristics
ensure that little, if any, regulated substances will be released if a
break occurs in the line.\14\
—————————————————————————
\14\ Preamble to 40 CFR part 280, FR Vol. 53, No. 185, Friday,
September 23, 1988, p. 37154.
—————————————————————————
EPA is not proposing secondary containment for piping associated
with field-constructed tanks and airport hydrant fuel distribution
systems. EPA understands this piping typically is larger diameter and
runs for long distances, making it difficult to slope the piping back
to an interstitial monitoring area. In addition, EPA understands it is
difficult to keep water out of the interstitial area of these long
piping runs. Since nearly all this piping is steel, corrosion can occur
in the interstitial area when an electrolyte, such as water, is in the
interstitial area. This corrosion can significantly shorten the
piping’s life. Corrosion protection safeguards piping in contact with
the ground, but does not protect the inside part of piping from
corrosion. To prevent corrosion caused by water in the interstitial
area, owners and operators would need to add corrosion protection
inside the interstitial area of piping, which EPA realizes would be
difficult, if not impossible, to do. Given all of these issues,
secondary containment for these piping runs could potentially reduce
environmental protection.
EPA is proposing owners and operators install tank and piping
secondary containment that: will contain regulated substances leaked
from the primary containment until they are detected and removed; is
able to prevent the release of regulated substances to the environment
at any time during the operational life of the UST system; and is
monitored for a leak at least once every 30 days using interstitial
monitoring. These requirements are consistent with the 1988 UST
regulation for secondarily contained hazardous substance tanks (Sec.
280.42) and are necessary to help prevent releases to the environment.
The secondary containment requirement applies to new or replaced
underground tanks and piping regulated under Subtitle I except those
excluded by regulation at 40 CFR 280.10(b) and those deferred by
regulation at 40 CFR 280.10(c). All petroleum and hazardous USTs are
intended to meet the secondary containment requirement with the
corresponding use of interstitial monitoring. EPA’s current regulation
allows variances to the use of interstitial monitoring as the method of
release detection for hazardous substance USTs. Since these variances
are no longer an option, EPA is eliminating this language to avoid
confusion.
EPA is not proposing secondary containment and/or under-dispenser
containment for UST systems where installation began on or before the
effective date of the final UST regulation. Similar to the definition
of existing tank system in the 1988 UST regulation, EPA considers an
installation to have begun after the owner or operator has obtained all
federal, state, and local approvals or permits and:
[[Page 71717]]
Physical construction or installation began; or
The owner or operator entered into a contractual agreement
that cannot be cancelled or modified without substantial loss and
physical construction or installation will commence within a reasonable
time frame.
Requiring retrofits would be a significant financial burden for
owners and operators. EPA anticipates owners and operators will replace
single-walled UST systems as they age. When owners and operators
replace singled-walled UST systems after the effective date of the
final UST regulation, new tanks and piping will need to be secondarily
contained and new dispensers will have under-dispenser containment.
To implement secondary containment and under-dispenser containment,
EPA is proposing to add new terms and definitions: Dispenser system;
replaced; secondary containment or secondarily contained; and under-
dispenser containment. EPA defined these terms so they are no less
stringent than the definitions contained in EPA’s secondary containment
grant guidelines to state implementing agencies.\15\
—————————————————————————
\15\ Grant Guidelines To States For Implementing The Secondary
Containment Provision Of The Energy Policy Act Of 2005: http://epa.gov/oust/fedlaws/secondco.htm.
—————————————————————————
EPA’s secondary containment grant guidelines provide states with
significant flexibility to define “replaced” as it applies to piping.
The guidelines require that states, at a minimum, consider replacing
piping when 100 percent of piping, excluding connectors, connected to a
single UST is removed and other piping is installed. When deciding how
to best define replaced as it applies to piping, EPA analyzed state UST
regulations for approximately 40 states that currently require
secondary containment and interstitial monitoring.\16\ About 75 percent
of these states have requirements as stringent as, or more stringent
than, the 50 percent threshold EPA proposes.
—————————————————————————
\16\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
In addition, EPA performed a screening analysis using limited,
readily-available data to determine when repair cost approached
replacement cost (and at what point owners and operators were most
likely to replace the entire piping run rather than repair it).\17\ The
screening analysis suggested replacement cost of an entire piping run
became equal to repair cost when about 60 percent of a piping run is
repaired. Based on this information, EPA is proposing owners and
operators secondarily contain an entire piping run when 50 percent or
more of a piping run is replaced. This is consistent with most state
implementing agency decisions and existing economic incentives. This
will also prevent owners and operators from leaving small pipe sections
in the ground to avoid this proposed secondary containment requirement.
If an UST has multiple piping runs, the secondary containment
requirement will only apply to those where 50 percent or more of piping
is replaced. Currently installed piping runs, and piping runs where
less than 50 percent of the piping is repaired, will not require
secondary containment.
—————————————————————————
\17\ IEc Incorporated, Work Assignment 1-19,
“Methodology and Calculator for Secondary Containment for Piping,”
October 3, 2008.
—————————————————————————
For pressurized piping, EPA considers a piping run to be the piping
that connects the submersible turbine pump (STP) to all of the
dispensers fed by that pump. For example, if a tank has two STPs, the
piping associated with each STP would be considered separate piping
runs. For suction piping, a piping run is the piping that runs between
the tank and the suction pump.
Consistent with EPA’s current policy, if an owner or operator
chooses to reinstall a secondarily contained tank or piping that was
previously installed, that tank or piping must meet new tank and piping
standards in Sec. 280.20 at the time of installation.
The Energy Policy Act defined secondary containment as a release
detection and prevention system that meets the interstitial monitoring
requirement in Sec. 280.43(g). Based on this definition, EPA is
proposing to include interstitial monitoring as part of the secondary
containment definition. Therefore, secondary containment means having
an interstitial space to monitor and monitoring that space for a leak.
Consistent with the 1988 UST regulation release detection requirements,
EPA is proposing interstitial monitoring of new and replaced
secondarily contained tanks and piping at least once every 30 days.
EPA is proposing owners and operators install under-dispenser
containment beneath new dispenser systems at UST systems. Data from
release sites show dispensers are one of the leading release
sources.18 19 Under-dispenser containment is located
underground and will prevent some releases by containing small releases
that occur inside and beneath the dispenser. EPA considers a dispenser
system new when both the dispenser and equipment needed to connect the
dispenser to an UST system are installed at an UST facility. EPA is
proposing check valves, shear valves, unburied risers or flexible
connectors, and other transitional components be included as equipment
that connects a dispenser to an UST system. This equipment is located
beneath the dispenser and typically connects underground piping to a
dispenser. If an owner or operator replaces a dispenser but uses
existing equipment to connect a dispenser to the UST system, then
under-dispenser containment is not required.
—————————————————————————
\18\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\19\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
—————————————————————————
To contain small releases from the dispenser, piping, and other
equipment, the under-dispenser containment must be liquid tight. EPA is
proposing under-dispenser containment be liquid tight on its sides,
bottom, and at any penetrations through the containment. EPA is
proposing periodic testing of under-dispenser containment in the
secondary containment tests section (see section B-4). In addition, an
owner or operator must have access to and be able to visually inspect
the containment. If visual inspection and access are not available,
then under-dispenser containment must be continuously monitored to
ensure containment is intact and free of liquids. Continuous monitoring
and visual inspections (required in the proposed walkthrough
inspections discussed in section B-1) will ensure problems with the
under-dispenser containment will be detected before a release to the
environment occurs.
The Energy Policy Act requires under-dispenser containment beneath
new motor fuel dispenser systems at UST systems. However, EPA is aware
of a small number of dispenser systems which do not dispense motor fuel
(for example, kerosene dispensers). Small releases can occur at these
dispensers in the same manner as they occur at motor fuel
dispensers.20 21 22 Therefore, EPA is
[[Page 71718]]
proposing owners and operators install under-dispenser containment
beneath new dispenser systems at UST systems, irrespective of whether
they dispense motor fuel.
—————————————————————————
\20\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\21\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
\22\ Frequency And Extent Of Dispenser Releases At Underground
Storage Tank Facilities In South Carolina (EPA-510-R-04-004,
September 2004). http://epa.gov/oust/pubs/dispenser.htm.
—————————————————————————
What issues related to this change does EPA request comment or
additional data on?
If you have any of the following data, please provide the:
[cir] Number of UST systems not installed within 1,000 feet of any
existing community water system or potable drinking water well.
[cir] Number of non-motor fuel dispensers connected to UST systems
in the United States.
[cir] Typical length or percentage of piping repaired during a
typical repair.
[cir] Costs, types and frequency of piping repairs and
replacements.
Are there regulatory incentives that EPA should consider
to encourage owners and operators to move toward secondary containment?
If yes, what are those incentives?
In addition to the three types of piping identified for
exclusion by EPA, are there other types of piping for which secondary
containment is impractical or unnecessary? If yes, what are those types
and why is secondary containment impractical or unnecessary?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
B. Additional Requirements for Operation and Maintenance
The 1988 UST regulation required owners and operators to install
improved UST system equipment to detect and prevent releases; however,
it did not require operation and maintenance for all of that equipment.
Owners and operators need to properly operate and maintain their UST
system equipment in order to prevent and quickly detect releases.
Therefore, we propose to add requirements for periodic spill, overfill,
secondary containment, and release detection testing along with
periodic walkthrough inspections to prevent and quickly detect
releases.
When a test or inspection occurs, owners and operators may find
problems with the UST system. When a test or inspection indicates a
problem, owners and operators must repair the problem to remain in
compliance with the 1988 UST regulation. Section 280.33 of the 1988
regulation describes repair requirements for UST systems.
1. Walkthrough Inspections
What is EPA proposing?
In Sec. 280.37, EPA is proposing owners and operators perform
walkthrough inspections of their UST systems at least once every 30
days and meet one of these three options:
Option 1: Conduct operation and maintenance walkthrough
inspections that, at a minimum and as appropriate to the facility,
check the following equipment:
[cir] Spill prevention equipment
[dec222] Open and visually check for any damage;
[dec222] Remove any liquid or debris;
[dec222] Check each fill cap to make sure it is securely on the
fill pipe; and
[dec222] If secondarily contained with continuous interstitial
monitoring, check for a leak in the interstitial area.
[cir] Sumps and dispenser cabinets
[dec222] Open and visually check for any damage, leaks to the
containment area, or releases to the environment;
[dec222] Remove any liquid (in contained areas) or debris; and
[dec222] If contained areas are secondarily contained with
continuous interstitial monitoring, check for a leak in the
interstitial area.
[cir] Monitoring/observation wells
[dec222] Check covers to make sure they are secured.
[cir] Cathodic protection
[dec222] Check to make sure impressed current cathodic protection
rectifiers are on and operating; and
[dec222] Ensure records of three year cathodic protection testing
and 60 day impressed current system inspections are reviewed and
current.
[cir] Release detection
[dec222] Check to make sure the release detection system is on and
operating with no alarm conditions or other unusual operating
conditions present;
[dec222] Check any devices such as tank gauge sticks, groundwater
bailers, and hand-held vapor monitoring devices for operability and
serviceability; and
[dec222] Ensure records of release detection testing are reviewed
monthly and current.
Option 2–Conduct operation and maintenance walkthrough
inspections according to a standard code of practice developed by a
nationally recognized association or independent testing laboratory
that are comparable to the specific requirements listed above.
Option 3–Conduct operation and maintenance walkthrough
inspections developed by the implementing agency that are comparable to
the specific requirements listed above.
EPA is proposing owners and operators maintain walkthrough
inspection records for one year. Each record must include a listing of
each area checked, whether each area checked was acceptable or needed
to have some action taken, and a description of actions taken to
correct an issue.
Why is EPA proposing this change? What background information is
available about this change?
The 1988 UST regulation focused on owners and operators installing
improved UST equipment, but did not require significant equipment
operation and maintenance activities. After more than 20 years of
experience with UST requirements, EPA finds both using improved
equipment and operating and maintaining UST equipment are necessary to
protect human health and the environment. 12 states have adopted
monthly walkthrough inspection requirements for their UST facilities.
Of those states, only California has been implementing the requirement
long enough to provide input about the effectiveness of walkthrough
inspections. California indicates that, according to UST inspectors and
industry people, the monthly inspections decreased the number of
violations found, reduced the frequency and duration of release
detection alarms, prompted better record keeping, and resulted in
overall better operations at the UST facility.\23\
—————————————————————————
\23\ Email from Laura Fisher, California State Water Resources
Control Board, April 30, 2010.
—————————————————————————
As part of operating and maintaining UST systems, EPA proposes
owners and operators conduct walkthrough inspections at least once
every 30 days. Periodic walkthrough inspections will help owners and
operators detect problems earlier, resulting in fewer releases to the
environment and reduced environmental impacts of releases that reach
the environment.
Walkthrough inspections are designed to verify proper function or
operating condition of easily accessible UST system components and
ensure required records are current. These inspections typically
include reviewing records and checking components to confirm function
or condition. For example, owners and operators will be required to
review current records and ensure equipment is operating properly;
containment sumps are free of liquid and debris; and leaks are not
occurring at dispensers, submersible turbine pumps, and other areas.
EPA used the Petroleum Equipment Institute’s Recommended Practice 900,
Recommend Practices for the Inspection and Maintenance of UST Systems,
as a
[[Page 71719]]
guide as we developed the proposed walkthrough inspection requirements.
EPA is proposing allowing owners and operators to hire a third party to
conduct walkthrough inspections instead of performing the inspection
themselves.
EPA is proposing three options for owners and operators to choose
from in conducting walkthrough inspections: follow the specific
requirements (described below) appropriate to the UST facility; use a
code of practice developed by a nationally recognized association or
independent testing laboratory; or follow requirements developed by the
implementing agency. At a minimum, walkthrough inspections conducted
according to a code of practice or developed by the implementing agency
need to be comparable to the following requirements. The specific
requirements proposed and reasons for their inclusion in the regulation
are:
For spill prevention equipment–open each spill prevention
area, check for damage, and remove any liquid or debris; check the fill
cap to make sure it is securely on the fill pipe; and for secondarily
contained spill prevention equipment with continuous interstitial
monitoring, check for a leak in the interstitial area.
[cir] Damaged spill prevention equipment can release regulated
substances into the environment and liquid or debris can reduce the
equipment’s capacity. Fill caps not secure on the fill pipe can result
in vapors exiting the tank and can render overfill prevention
inoperable in tanks that use flow restrictors in the vent line. Some
spill prevention equipment construction materials may not be designed
to contain regulated substances for long periods of time. For spill
prevention equipment with two walls and continuous interstitial area
monitoring, owners and operators need to check the monitoring device or
area to make sure the interstitial monitoring is operating properly and
does not indicate a leak in the interstitial area.
For sumps, including submersible turbine pump sumps and
transition sumps–open and visually check for damage, leaks to the
containment area, or releases to the environment; remove any liquid (in
contained sumps) or debris; and for secondarily contained sumps with
continuous interstitial monitoring, check for a leak in the
interstitial area.
[cir] Drips and other small releases from damaged components
contained by the sump can result in regulated substances remaining in
the sump. Damaged sumps can release regulated substances into the
environment. Liquid or debris can reduce the capacity of a contained
sump. Some sump construction materials may not be designed to contain
regulated substances for long periods of time. For sumps with two walls
and continuous interstitial area monitoring, owners and operators need
to check the monitoring device or area to make sure the interstitial
monitoring is operating properly and does not indicate a leak in the
interstitial area.
For dispenser cabinets–open each cabinet; visually check
for damage, leaks to the containment area, or releases to the
environment; remove any liquid (in dispensers with under-dispenser
containment) or debris; and for dispenser sumps with continuous
interstitial monitoring, check for a leak in the interstitial area.
[cir] Visual checks for dispensers are important because the 1988
UST regulation does not require release detection for dispensers. Drips
and other small releases from damaged components in the dispenser
cabinet can result in regulated substances remaining in the dispenser
sump or being released to the environment. Damaged under-dispenser
containment (if present) can release regulated substances into the
environment. If under-dispenser containment is present, liquid or
debris can reduce the capacity of the containment sump. Some under-
dispenser containment construction materials may not be designed to
contain regulated substances for long periods of time. For dispenser
sumps with two walls and continuous interstitial area monitoring,
owners and operators need to check the monitoring device or area to
make sure the interstitial monitoring is operating properly and does
not indicate a leak in the interstitial area.
For monitoring or observation wells–check the covers to
make sure they are secured.
[cir] These wells need to be secured to avoid potential
contamination of wells through the well cover (for example by surface
runoff or accidental fuel delivery to the well).
For cathodic protection–check to make sure impressed
current cathodic protection rectifiers are on and operating; ensure
records of three year cathodic protection testing and 60 day impressed
current system inspections are reviewed and up to date.
[cir] Impressed current cathodic protection systems need to be on
and operating to protect underground metal components of the UST system
that routinely contain regulated substances from corrosion. In
addition, owners and operators need to retain records of the most
recent two cathodic protection tests (required once every three years)
and the most recent three inspections (required once every 60 days) for
impressed current systems. These records show that cathodic protection
systems are on and operating properly to protect UST system components
from corrosion. Owners and operators who record rectifier readings and
compare those readings to the normal operating parameters of the
rectifier during the 30 day walkthrough inspections will meet the 60
day impressed current inspection requirement in Sec. 280.31(c) without
further activity. Failure to operate and maintain cathodic protection
could mean that metal UST system components are corroding and could
result in a release to the environment.
For release detection–check to make sure the release
detection system is on and operating with no alarm conditions or other
unusual operating conditions present; check any devices such as tank
gauge sticks, groundwater bailers, and hand-held vapor monitoring
devices for operability and serviceability; and ensure records of
release detection testing are reviewed monthly and up to date.
[cir] Release detection equipment needs to be operable in order to
detect releases when they occur. Owners and operators must respond to
release detection alarms. Manual release detection equipment needs to
be serviceable and operational so owners and operators can perform
proper release detection. In addition, owners and operators need to
ensure they review the most recent month’s release detection
information and retain the most recent year’s worth of release
detection records. These records are required for all methods of
release detection, and reviews ensure UST systems are being checked for
a release at least once every 30 days. Failure to perform these checks
could mean release detection equipment is not operating properly and
could result in a release to the environment.
Owners and operators using continuous interstitial monitoring for
double-walled spill prevention devices, sumps, or dispenser containment
areas need to check the interstitial monitoring to make sure it is
operating properly and does not indicate a leak in the interstitial
area. EPA is aware of these continuous interstitial monitoring methods:
vacuum, pressure, or liquid-filled interstitial area monitoring and
placing sensors in the interstitial area. For vacuum, pressure, or
liquid-filled interstitial area monitoring using electronic devices and
sensors, owners and operators will need to check the electronic device
to make sure it is not
[[Page 71720]]
in alarm. For interstitial areas monitored using vacuum, pressure, or
liquid-filled interstitial area monitoring not using some type of
electronic monitoring, owners and operators will need to make sure the
vacuum, pressure, or liquid is maintaining its appropriate level.
Owners and operators who do not check the interstitial monitoring of
spill prevention devices must perform periodic spill prevention
equipment testing described in Sec. 280.35(a)(ii) of the proposed UST
regulation. Owners and operators who do not check the interstitial
monitoring of sumps or dispenser containment areas and who use those
areas for interstitial monitoring for their piping must perform the
periodic testing of secondary containment described Sec.
280.36(a)(iii) of the proposed UST regulation.
EPA is proposing walkthrough inspections be conducted at least
every 30 days. 30 days is a reasonable time frame because:
Deliveries occur frequently–often daily or every few
days;
Dispenser filters are changed every few weeks or months;
It is consistent with the 30 day release detection
monitoring requirement; and
Current operation and maintenance industry standards
(Petroleum Equipment Institute Recommended Practice 900) recommend
monthly checks as one of the periodic inspection frequencies.
EPA is proposing owners and operators retain the most recent year’s
worth of records to demonstrate compliance with the walkthrough
inspection requirement. Owners and operators will be required to
document they performed each of the required activities at least once
every 30 days. Keeping one year’s worth of records is consistent with
the current recordkeeping requirement for release detection monitoring.
EPA is proposing owners and operators document each area checked,
whether each area checked was acceptable or needed to have some action
taken, and provide a description of any actions taken to correct an
issue. This information is important to assist implementing agencies in
determining proper operation and maintenance.
What issues related to this change does EPA request comment or
additional data on?
Is a 30 day inspection frequency an appropriate time frame
for owners and operators to conduct walkthrough inspections?
Is it reasonable for owners and operators to begin
conducting walkthrough inspections immediately after the final UST
regulation becomes effective?
Is specialized training required for individuals
completing walkthrough inspections? If yes, what should EPA establish
as the extent of the training?
Are there other codes of practice that should be included
for conducting walkthrough inspections?
Is requiring owners and operators to keep the most recent
year’s worth of records sufficient?
Are the items EPA proposes checking appropriate? Should
EPA add anything? Are there checks EPA is proposing that should not be
required?
Should EPA consider not requiring owners and operators to
remove water from contained sumps when both of the following conditions
exist?
[cir] Owners and operators choose to connect an anode to the metal
components in the sump for corrosion protection and
[cir] The sump is not used for interstitial monitoring.
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
2. Spill Prevention Equipment Tests
What is EPA proposing?
In Sec. 280.35, EPA is proposing owners and operators test spill
prevention equipment (such as a catchment basin, spill bucket, or other
spill containment device) at installation and at least once every 12
months. This test must ensure spill prevention equipment is liquid
tight by performing a vacuum, pressure, or liquid test according to one
of the following:
Requirements developed by the manufacturer (Note that
owners and operators may use this option only if the manufacturer
developed spill prevention equipment test requirements);
Code of practice developed by a nationally recognized
association or independent testing laboratory; or
Requirements determined by the implementing agency to be
no less protective of human health and the environment than the two
bulleted items above.
Exception: EPA is proposing spill prevention equipment tests not be
required in those situations where spill prevention equipment has two
walls and the space between the walls is monitored continuously
(interstitial monitoring) to ensure the integrity of both the inner and
outer wall.
EPA is proposing owners and operators maintain the following:
Records of spill prevention equipment tests for three
years; or
Documentation showing the spill prevention equipment has
two walls and is monitored continuously for each spill prevention
device installed at the facility. Owners and operators must maintain
this documentation for as long as the spill prevention equipment is
monitored continuously and for three additional years after continuous
monitoring ends.
EPA is proposing owners and operators meet this requirement within
one year after the effective date of the final UST regulation for
existing UST systems and at installation for UST systems installed
after the effective date of the final regulation.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing this change to help ensure small releases
occurring when the delivery transfer hose is disconnected from the fill
pipe are contained in the spill prevention equipment. Owners and
operators need to properly operate and maintain their spill prevention
equipment in order to prevent releases to the environment. If a small
release occurs at the fill port and the spill prevention equipment is
not liquid tight, then the release can exit the spill prevention
equipment and reach the environment. EPA is aware of various problems
with spill prevention equipment. Examples include damage due to:
Vehicle drive over; ground movement or freeze/thaw cycles; inadequate
installation practices; and normal wear and tear. In addition, the
typical life of spill prevention equipment is about three to seven
years, but the 1988 UST regulation does not have a replacement
requirement. Today’s proposed periodic spill prevention equipment test
will minimize problems and ensure spill prevention equipment will
contain small releases from the delivery hose when disconnected from
the fill pipe.
EPA is proposing not to require owners and operators of double-
walled spill prevention equipment with continuous interstitial
monitoring to conduct annual tests because this spill prevention
equipment is continuously checked for tightness through interstitial
monitoring. EPA is proposing owners and operators in the monthly
walkthrough inspections visually check continuous interstitial
monitoring methods that do not alert the owner and operator with an
alarm. Additional
[[Page 71721]]
information on these inspections is available in section B-1.
EPA is proposing to require vacuum, pressure, or liquid methods
when testing spill prevention equipment. We believe these options
provide owners and operators with significant flexibility for testing
this equipment.
EPA is proposing to specifically allow owners and operators to use
manufacturer’s requirements or a code of practice developed by a
nationally recognized association or independent testing laboratory for
spill prevention equipment tests. The manufacturer’s requirement is an
option only when the manufacturer has developed a testing requirement.
In response to today’s proposed regulation, EPA anticipates nationally
recognized associations or independent testing laboratories will
develop codes of practice for spill prevention equipment tests and
manufacturers will develop testing requirements. In addition, EPA is
providing implementing agencies flexibility to allow other methods they
determine to be as protective of human health and the environment as
the manufacturer’s requirements or a code of practice. This option
allows alternatives in the event codes of practice and manufacturer’s
testing requirements are not developed.
EPA is proposing owners and operators conduct spill prevention
equipment tests at least once every 12 months. We propose this
frequency because spill prevention equipment is prone to problems that
can occur over the course of a year and frequent tests will catch
problems earlier. In addition, testing every 12 months is consistent
with other testing requirements, such as annual automatic line leak
detector testing, in the 1988 regulation.
EPA is proposing owners and operators maintain spill prevention
equipment test records three years for each spill containment device at
a facility. These records will enable implementing agencies to
determine whether owners and operators conducted annual spill
prevention equipment testing during the three year inspections required
by the Energy Policy Act. These records will also demonstrate that
owners and operators tested their spill prevention equipment, ensuring
it will contain small drips and spills that can occur when the transfer
hose is disconnected from the fill pipe. In order for double-walled
spill prevention equipment with continuous interstitial monitoring to
be exempt from spill prevention equipment tests, owners and operators
will need to maintain documentation showing spill prevention equipment
has two walls and uses continuous interstitial monitoring. In addition,
EPA is proposing owners and operators maintain this documentation for
three years after continuous interstitial monitoring ends. EPA is
proposing maintaining this documentation so owners and operators can
demonstrate compliance with the spill prevention equipment testing
requirement.
What issues related to this change does EPA request comment or
additional data on?
Is a 12 month frequency an appropriate time frame for
spill prevention equipment tests? For example, should EPA consider more
frequent tests in sensitive areas, such as source water protection
areas?
Are there other acceptable test methods in addition to
vacuum, pressure, or liquid spill prevention equipment tests?
Is the one year time frame proposed for owners and
operators to begin implementing this requirement reasonable?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
3. Overfill Prevention Equipment Tests
What is EPA proposing?
In Sec. 280.35, EPA is proposing owners and operators test proper
operation of overfill prevention equipment (automatic shutoff devices,
flow restrictors, and high level alarms) at installation and at least
once every three years. The test must ensure overfill prevention
equipment is set to activate at the appropriate level in the tank (as
specified in Sec. 280.20(c)) and the equipment will activate when the
regulated substance reaches that height. EPA is proposing owners and
operators test according to one of the following:
Requirements developed by the manufacturer (Note that
owners and operators may use this option only if the manufacturer
developed overfill prevention equipment test requirements);
Code of practice developed by a nationally recognized
association or independent testing laboratory; or
Requirements determined by the implementing agency to be
no less protective of human health and the environment than the two
bulleted items above.
EPA is proposing owners and operators maintain records of overfill
prevention equipment tests for three years for each overfill device
installed at a facility.
For UST systems installed after the effective date of the final UST
regulation, EPA is proposing owners and operators meet this requirement
at installation. For UST systems installed on or before the final UST
regulation is effective, EPA is proposing owners and operators meet
this requirement within three years and according to the time frames in
the following table:
Phase-In Schedule for Overfill Prevention Equipment Tests
—————————————————————————————————————-
Criteria Date by which first test must be conducted
—————————————————————————————————————-
One or more USTs at the facility were One year after effective date of rule.
installed on or before 12/22/1988.
No USTs at the facility were installed on Two years after effective date of rule.
or before 12/22/1988 and at least one
UST at the facility was installed on or
before 12/22/1998.
All USTs at the facility were installed Three years after effective date of rule.
after 12/22/1998.
—————————————————————————————————————-
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing this change to help ensure overfill prevention
equipment is operating properly and will activate before an UST is
overfilled. Owners and operators need to properly operate and maintain
their overfill prevention equipment in order to prevent releases to the
environment. If overfill prevention equipment is not working properly,
an UST can be overfilled and release product to the environment. EPA is
aware that USTs are being overfilled and there are problems with
overfill prevention equipment. Examples include: Tampering; improper
use; and normal wear and tear. The proposed periodic overfill
prevention equipment tests will minimize problems and ensure overfill
prevention equipment is operating properly.
[[Page 71722]]
Overfill prevention test methods should not overfill the tank to
determine whether overfill prevention equipment is operating properly.
Rather, the equipment should be tested or inspected to determine
whether it will operate or activate properly according to requirements
set forth in the UST regulation. For example, a test or inspection for
an automatic shutoff device in the fill pipe might include removing the
device and checking it for the ability to operate and measuring the
position of the device in the tank to determine whether it will
activate at the correct height.
For overfill prevention equipment tests, EPA is proposing owners
and operators use manufacturer’s requirements or a code of practice
developed by a nationally recognized association or independent testing
laboratory. The manufacturer’s requirement is an option only when the
manufacturer has developed a testing requirement. In response to this
proposed regulation, EPA anticipates nationally recognized associations
or independent testing laboratories will develop codes of practice for
overfill prevention equipment tests, and manufacturers will develop
testing requirements. In addition, EPA is providing implementing
agencies flexibility to allow other methods they determine to be as
protective of human health and the environment as the manufacturer’s
requirements or a code of practice. This option allows alternatives in
the event that codes of practice and manufacturer’s testing
requirements are not developed.
EPA is proposing owners and operators conduct overfill prevention
equipment tests at least once every three years. We propose this
frequency because overfill prevention equipment is less prone to
problems than spill prevention equipment, but still needs periodic
testing. In addition, a three year time frame is consistent with other
testing requirements, such as cathodic protection testing and the
proposed three year interstitial integrity testing.
EPA is proposing to stagger implementation over a three year period
based on the installation date of the oldest UST at the facility. The
proposed phase-in will require overfill prevention equipment in older
UST systems that pose a greater risk to the environment to be tested
first. The phase-in approach will allow overfill prevention equipment
tests to be spread out and reduce the risk of a last-minute rush of
owners and operators obtaining overfill prevention equipment tests at
the end of the initial three-year period.
EPA is proposing owners and operators maintain overfill prevention
equipment test records for three years for each overfill device at a
facility. These records will demonstrate to implementing agencies that
the overfill prevention equipment has been tested, is set at the
appropriate height in the tank, and will activate when regulated
substances reach that height. EPA is proposing owners and operators
maintain records for three years to coincide with the three year
inspection frequency required by the Energy Policy Act.
What issues related to this change does EPA request comment or
additional data on?
Is a three year frequency an appropriate time frame for
overfill prevention equipment tests? For example, should EPA consider
more frequent tests in sensitive areas such as source water protection
areas? Should EPA consider less frequent testing?
Should EPA consider owners and operators retain overfill
prevention equipment test records for a different time frame?
Is the three year time frame and phase-in proposed for
owners and operators to begin implementing this requirement reasonable?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
4. Secondary Containment Tests
What is EPA proposing?
In Sec. 280.36, EPA is proposing owners and operators test
secondary containment areas that use interstitial monitoring at least
once every three years. A secondary containment test (also called an
interstitial integrity test) is performed in the space between tank
walls, pipe walls, or in a secondary containment sump area and ensures
the area being tested has integrity and will contain a leak. Secondary
containment areas include tank and piping interstitial areas, as well
as containment sumps used as part of the piping secondary containment
and interstitial monitoring. EPA is proposing owners and operators test
interstitial integrity areas using a vacuum, pressure, or liquid method
according to one of the following:
Requirements developed by the manufacturer (Note that
owners and operators may use this option only if the manufacturer
developed interstitial integrity test requirements);
Code of practice developed by a nationally recognized
association or independent testing laboratory; or
Requirements determined by the implementing agency to be
no less protective of human health and the environment than the two
bulleted items above.
Exceptions: EPA is proposing the following exceptions apply to
interstitial integrity tests:
Tanks–Owners and operators using continuous interstitial
monitoring on their tanks will not be required to perform periodic
interstitial integrity tests.
Piping–Owners and operators using vacuum monitoring,
pressure monitoring, or liquid-filled interstitial space monitoring on
their underground piping will not be required to perform periodic
interstitial integrity tests.
Containment sumps–Owners and operators using containment
sumps which have two walls and continuously monitor the interstitial
space between the walls for releases will not be required to perform
interstitial integrity tests.
EPA is proposing owners and operators maintain the following:
Records of interstitial integrity tests for three years;
or
Documentation demonstrating that the tanks, piping, or
containment sumps are not required to have a periodic interstitial
integrity test according to the exceptions above. Owners and operators
must maintain this documentation for as long as the tank, piping, or
containment sump uses one of the continuous methods listed in the
exceptions and for three additional years after continuous monitoring
ends.
For UST systems installed after the effective date of the final UST
regulation, EPA is proposing owners and operators meet this requirement
at installation. For UST systems installed on or before the final UST
regulation is effective, EPA is proposing owners and operators meet
this requirement within three years and according to the time frames in
the following table:
[[Page 71723]]
Phase-In Schedule for Interstitial Integrity Tests
—————————————————————————————————————-
Criteria Date by which first test must be conducted
—————————————————————————————————————-
One or more USTs at the facility were One year after effective date of rule.
installed on or before 12/22/1988.
No USTs at the facility were installed on Two years after effective date of rule.
or before 12/22/1988 and at least one UST
at the facility was installed on or
before 12/22/1998.
All USTs at the facility were installed Three years after effective date of rule.
after 12/22/1998.
—————————————————————————————————————-
This proposed requirement only applies to UST systems using
interstitial monitoring. It does not apply to UST systems without
secondary containment or those with secondary containment but not using
interstitial monitoring for release detection.
Why is EPA proposing this change? What background information is
available about this change?
The Energy Policy Act requires states that receive federal Subtitle
I money implement additional measures to protect groundwater, either
with secondary containment for new and replaced tanks and piping or
financial responsibility for manufacturers and installers. 54 of 56
states have implemented the secondary containment option. To ensure
secondary containment is working properly, the integrity of the
interstitial space needs to be tested. Therefore, EPA is proposing
periodic interstitial integrity tests of the interstitial space in
secondarily-contained UST systems which use interstitial monitoring for
release detection. These systems need to contain a leak until
interstitial monitoring detects the regulated substance. Currently, EPA
has no requirement for ensuring the integrity of secondary containment
areas.
Since most states implemented the secondary containment
requirements in the Energy Policy Act for most new and replaced tanks
and piping, new and replaced UST systems will be secondarily contained
with interstitial monitoring. This requirement signals a move from non-
secondarily contained UST systems using methods of release detection
that detect a release only after regulated substances have reached the
environment to secondary containment with interstitial monitoring that
identifies a problem before regulated substances reach the environment.
Interstitial integrity tests will confirm for owners and operators that
secondary containment will contain a leak until it is detected and the
problem is repaired.
Some interstitial monitoring methods for tanks, piping, and
containment sumps already continuously ensure the interstitial area’s
integrity. When an owner or operator uses one of these methods, EPA
will not require periodic interstitial integrity tests.
Tanks–According to EPA’s source and cause of release
information, tanks are not the leading source of releases
24 25 In addition, tanks are nearly always constructed in a
factory under controlled conditions, making it less likely problems
will occur in interstitial areas after installation. For these reasons,
EPA proposes not to require owners and operators to conduct periodic
interstitial integrity tests of tanks using continuous interstitial
monitoring. Methods of continuous interstitial monitoring for tanks
include liquid filled, vacuum, pressure, and sensors in the
interstitial space.
—————————————————————————
\24\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\25\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
—————————————————————————
Piping–EPA’s source and cause of release information
shows that a significant number of releases occur from
piping.26 27 In addition, piping and containment sumps are
assembled in the field during the installation process, potentially
creating increased opportunities for releases. Therefore, unless owners
and operators use continuous liquid-filled, vacuum, or pressure
interstitial monitoring for piping release detection, EPA is proposing
to require periodic interstitial integrity testing for piping. For
example, owners and operators who choose to use sensors in containment
sumps for piping interstitial monitoring must also perform three year
interstitial integrity tests of the piping interstitial space.
—————————————————————————
\26\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
\27\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
—————————————————————————
Containment sumps–Similar to piping, EPA’s source and
cause of release information shows that a significant number of
releases occur in containment sump areas. EPA is also aware of issues
with the tightness of containment sumps. Based on this information, EPA
is proposing owners and operators conduct periodic interstitial
integrity tests of containment sumps used for piping interstitial
monitoring, unless the containment sump has two walls and the
interstitial space between the walls in the sump is continuously
monitored. For example, if an owner or operator has a double-walled
containment sump and uses a sensor, vacuum, pressure, or liquid-filled
interstitial area to continuously monitor the space between the two
walls, then periodic interstitial integrity tests of that sump are not
required under this proposal. Owners and operators of double-walled
sumps without continuous interstitial monitoring must perform three
year interstitial integrity tests.
Continuous interstitial monitoring means the secondary containment
space is monitored all the time by a method or device and owners and
operators check the continuous monitoring method or device for a leak
at least once every 30 days. In addition, owners and operators must
immediately respond to any alarms they encounter. Methods of continuous
interstitial monitoring include vacuum, pressure, and liquid-filled
interstitial areas along with sensors and probes located in the
interstitial area.
EPA is proposing owners and operators conduct interstitial
integrity tests for tanks, piping, and sumps at least once every three
years. EPA is proposing this frequency because we believe secondarily
contained UST systems are much less prone to releases than single-
walled UST systems. However, since owners and operators are relying on
the interstitial space to detect problems, the interstitial areas still
need periodic tests to ensure proper operation and maintenance. A three
year time frame is consistent with other testing requirements, such as
cathodic protection testing and the proposed overfill prevention
equipment testing.
EPA is proposing to stagger implementation over a three year period
based on the installation date of the oldest UST at the facility. The
proposed phase-in will require older UST systems that may pose a
greater risk to the environment to be tested first. The phase-in
approach will allow interstitial tests to be spread out and reduce the
risk of a last-minute rush of owners and operators obtaining tests at
the end of the initial three-year period.
[[Page 71724]]
EPA is proposing owners and operators maintain interstitial
integrity test records for three years for each regulated tank, pipe,
and containment sump at a facility or maintain documentation
demonstrating periodic interstitial integrity tests are not required.
Documentation supporting that periodic interstitial integrity tests are
not required could include: the tank or piping uses vacuum, pressure,
or liquid-filled interstitial monitoring; the tank uses continuous
interstitial sensors for interstitial monitoring; or the containment
sump has two walls and the space between the containment sump walls is
continuously monitored. In addition, EPA is proposing owners and
operators maintain this documentation for three years after continuous
interstitial monitoring ends. EPA is proposing owners and operators
maintain this documentation so they can demonstrate to implementing
agencies compliance with the interstitial integrity test requirement.
This documentation coincides with the three year inspection
requirements in the Energy Policy Act.
What issues related to this change does EPA request comment or
additional data on?
Is a three year frequency an appropriate time frame for
interstitial integrity tests? For example, should EPA consider more
frequent tests in sensitive areas such as source water protection
areas?
Should EPA consider owners and operators retain records of
interstitial integrity tests for a different time frame?
Should EPA consider interstitial integrity tests for tanks
using continuous interstitial sensors? Should EPA consider limiting
this exclusion to discriminating sensors?
Is there a need for a phased-in schedule to implement this
requirement? Is the three year time frame and phase-in proposed for
owners and operators to begin implementing this requirement reasonable?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
5. Operation and Maintenance Requirements for Release Detection
Equipment
What is EPA proposing?
In Sec. 280.40, EPA is proposing UST owners and operators perform
annual operation and maintenance tests on electronic and mechanical
components of their release detection equipment to ensure the equipment
is operating properly. Owners and operators will be required to check
the following equipment:
ATG and other controllers
[cir] Test alarm;
[cir] Verify system configuration; and
[cir] Test battery back-up.
Probes and sensors
[cir] Inspect for residual build-up;
[cir] Ensure floats move freely;
[cir] Ensure shaft is not damaged;
[cir] Ensure cables are free of kinks, bends, and breaks; and
[cir] Test alarm operability and communication with controller.
Line leak detector
[cir] Simulate leak which determines capability to detect a leak;
and
[cir] Inspect leak sensing o-ring.
Vacuum pumps and pressure gauges
[cir] Ensure communication with sensors and controller.
EPA is proposing owners and operators meet this requirement according
to one of the following: manufacturer’s instructions; a code of
practice developed by a nationally recognized association or
independent testing laboratory; or requirements developed by the
implementing agency.
EPA is proposing owners and operators maintain records of the
annual operation tests for three years. At a minimum, records must:
list each component tested; indicate whether each component met the
criteria listed above or needed to have action taken; and describe any
action taken to correct an issue.
EPA is proposing owners and operators begin meeting this
requirement no later than one year after the effective date of the
final UST regulation.
Why is EPA proposing this change? What background information is
available about this change?
EPA is concerned about the performance of release detection
equipment. Inspectors routinely find release detection equipment
installed on UST systems, but that equipment is not properly operated
and maintained. In addition, information from an analysis in Florida
indicates, “Leak detection successfully detected 26 percent of all
releases. Conversely, leak detection was specifically identified as
failing to detect 23 percent of releases.” The analysis also says the
exact reason for the leak detection failure could not be determined.
However, the analysis provided these possible reasons, “* * * faulty
equipment; improper installation; operation or maintenance; or
insufficient performance standards.” \28\ To increase the
effectiveness of release detection, EPA is targeting operation and
maintenance.
—————————————————————————
\28\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
—————————————————————————
The 1988 UST regulation in Sec. 280.40(a)(2) requires that release
detection “Is installed, calibrated, operated, and maintained in
accordance with the manufacturer’s instructions, including routine
maintenance and service checks for operability or running condition;”.
Most owners and operators installed the required release detection
equipment, but some owners and operators are not properly operating and
maintaining their equipment. To achieve optimal performance from
equipment and meet release detection requirements, it is important for
UST system owners and operators to both install the equipment and
properly operate and maintain it. In the 1988 UST regulation, EPA did
not provide specifics on minimum requirements to ensure adequate
operation and maintenance of release detection equipment. As a result,
operation and maintenance requirements vary greatly, even between
similar types of equipment.
Some manufacturers’ requirements do not adequately address
operation and maintenance. For example, some manufacturers only
recommend operation and maintenance checks; but EPA is taking the
position that checks should be mandatory instead of optional. In
addition, similar release detection components should be tested in a
similar manner, which will increase the likelihood all release
detection equipment will function at optimal levels for as long as
possible. California’s in-field analysis of sensors used for release
detection and anecdotal feedback supports EPA’s belief. \29\
—————————————————————————
\29\ California’s “Field Evaluation Of Underground Storage Tank
System Leak Detection Sensors,” August 2002. http://www.waterboards.ca.gov/water_issues/programs/ust/leak_prevention/sensors/index.shtml.
—————————————————————————
EPA is proposing this change to improve and standardize operation
and maintenance for all release detection equipment. This proposed
change will provide owners and operators with an understanding of
equipment tests necessary to ensure equipment is properly operated and
maintained. EPA is proposing a set of minimum operation and maintenance
criteria owners and operators must follow for all electronic- and
mechanical-based release detection equipment. EPA is also addressing
equipment that is neither electronically nor mechanically based (for
example,
[[Page 71725]]
bailers and measuring sticks used for activities such as statistical
inventory reconciliation [SIR]) separately under the walkthrough
inspections section (see section B-1).
EPA based these proposed operation and maintenance minimum
requirements for release detection on common requirements and
recommendations by various equipment manufacturers of similar
equipment. EPA used the National Work Group on Leak Detection
Evaluation’s (NWGLDE) list of leak detection equipment to identify
commonly used equipment.\30\ In addition, EPA’s publication, Operating
And Maintaining Underground Storage Tanks Systems: Practical Help And
Checklists and Petroleum Equipment Institute’s Recommended Practices
for the Inspection and Maintenance of UST Systems (RP 900) also helped
establish proper operation and maintenance activities.
—————————————————————————
\30\ National Work Group On Leak Detection Evaluation’s (NWGLDE)
List Of Leak Detection Evaluations For Storage Tank Systems: http://www.nwglde.org/.
—————————————————————————
Regarding our proposal to use a code of practice developed by a
nationally recognized association or independent testing laboratory,
EPA knows of one code of practice currently being developed that may
address operability testing for release detection equipment. After that
code of practice is final, EPA will review it and decide whether to
include it in the final UST regulation.
EPA is proposing owners and operators maintain records of annual
operation tests for three years. Results of tests must include: a list
of each component tested; whether it tested acceptable or needed
action; and a description of any action taken to correct an issue.
Three years worth of records are consistent with the three year
inspection cycle, and content of the records will allow owners and
operators to demonstrate compliance with this operation and maintenance
requirement.
Finally, EPA is allowing owners and operators up to one year from
the effective date of the final UST regulation to meet this
requirement. One year is consistent with the annual test frequency
requirement already in place for automatic line leak detectors, and
many third-party service providers nationwide already perform the
testing.
What issues related to this change does EPA request comment or
additional data on?
Are the proposed minimum operation and maintenance
requirements sufficient to cover release detection equipment on
regulated UST systems?
Are there additional performance tests EPA should
consider?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
C. Addressing Deferrals
Note about the overlap of UST regulations and Spill Prevention
Control and Countermeasures (SPCC) regulations: At the time of the 1988
UST regulation, facilities with an aggregate completely buried storage
capacity greater than 42,000 gallons and located near navigable waters
of the U.S. or adjoining shorelines were subject to both UST rules and
SPCC rules. Since then, SPCC rules have been amended and the rule
exempts completely buried storage tanks, as well as connected
underground piping, underground ancillary equipment, and containment
systems, when subject to the technical requirements of 40 CFR part 280.
In today’s proposal, EPA proposes to continue to defer the aboveground
components associated with airport hydrant systems and USTs with field-
constructed tanks. Only those deferred aboveground components will be
subject to SPCC requirements. EPA is proposing to regulate the
underground components associated with airport hydrant systems and USTs
with field-constructed tanks. In addition, EPA is proposing to regulate
wastewater treatment tank systems and UST systems that store fuel
solely for use by emergency power generators deferred under the 1988
regulation. Once the proposal becomes final, these UST systems will no
longer be subject to SPCC requirements.
1. Emergency Power Generator UST Systems
What is EPA proposing?
EPA is proposing to eliminate the current deferral in Sec.
280.10(d) for UST systems storing fuel solely for use by emergency
power generators. This means emergency power generator USTs will no
longer be deferred from release detection requirements in 40 CFR part
280, subpart D and will be subject to all UST requirements.
In addition, EPA is proposing that, no later than 30 days after the
effective date of the final UST regulation, owners of UST systems
storing fuel solely for use by emergency power generators notify
appropriate implementing agencies that their systems exist.
EPA is proposing owners and operators of UST systems storing fuel
solely for use by emergency power generators begin meeting these
requirements as follows:
For systems installed after the effective date of the
final UST regulation, at the time of installation.
For systems installed on or before the effective date of
the final UST regulation, within one year of the effective date of the
final UST regulation.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing to regulate UST systems storing fuel solely for
use by emergency power generators because our previous rationale for
deferring release detection no longer applies. To allow time for
developing workable release detection requirements, EPA in the 1988 UST
regulation deferred release detection requirements for UST systems
storing fuel solely for use by emergency power generators. The 1988 UST
regulation preamble indicated that monthly monitoring requirements were
unworkable because these tanks often were located at unmanned stations
in remote areas and visited infrequently.
EPA always intended for these systems to meet release detection
requirements when appropriate release detection methods became
available. Since the 1988 UST regulation, release detection
technologies have matured greatly. In addition, technology is now
available to perform release detection at remote sites. Emergency
generator tanks and piping can now be monitored for releases by the
majority of methods listed in Sec. 280.43. EPA estimates about 30
percent of active UST systems storing fuel solely for use by emergency
power generators already have release detection.
Effective remote monitoring methods for release detection are now
available and used to monitor unmanned UST systems storing fuel solely
for use by emergency power generators. Numerous contractors perform
remote monitoring for releases at these unmanned sites. Remote monitors
transmit visual or audible alarms to a receiving console at a manned
location when there is a suspected or confirmed release. This provides
owners and operators with real-time release detection data for
immediate response to suspected or confirmed releases at sites with
unmanned UST systems storing fuel solely for use by emergency power
generators.
Emergency power generator UST systems are located throughout the
[[Page 71726]]
country. EPA’s review of several state databases revealed these systems
are located at hospitals, universities, communication utilities,
military installations, and other locations relying on backup power
sources. EPA estimates UST systems storing fuel solely for use by
emergency power generators now represent approximately 3 percent of the
active tank population.\31\
—————————————————————————
\31\ Industrial Economics, Inc., “Detailed Assessment of UST
Universe by Tank Use and Industry Sector,” Work Assignment 1-15,
Task 6, January 23, 2009.
—————————————————————————
Additionally, 21 states currently require release detection for
emergency power generator UST systems. Automatic tank gauging and
secondary containment with interstitial monitoring are the most common
release detection methods used for tanks associated with these systems.
Line tightness testing, line leak detectors, or secondary containment
with interstitial monitoring are the most common release detection
methods used for piping. Note that safe suction piping does not require
release detection. With technology now available to detect releases
from emergency power generator UST systems and because these systems
pose the same risk to human health and the environment as any other UST
system, EPA is proposing to remove the deferral from release detection.
EPA is proposing owners and operators of emergency power generator
UST systems installed on or before the effective date of the final UST
regulation begin performing release detection within one year of the
effective date of the final regulation. EPA is taking the position that
one year is reasonable because these USTs are fully regulated except
for release detection, and some are already performing release
detection. After the effective date of the final regulation, all
emergency power generator UST systems must include release detection
when installed.
Notification
To make implementing agencies aware that emergency power generator
UST systems exist, EPA is proposing owners of these systems submit a
one-time notification to the implementing agency. Owners must notify
within 30 days of the effective date of the final regulation. This will
allow implementing agencies to include emergency power generator UST
systems in their inventories.
What issues related to this change does EPA request comment or
additional data on?
Is EPA’s estimate of 3 percent for UST systems storing
fuel solely for use by emergency power generators accurate?
Are there technical concerns EPA should address in
requiring release detection for emergency power generator UST systems?
Is EPA’s estimate of 30 percent installed release
detection on UST systems storing fuel solely for use by emergency power
generators accurate?
How many UST facilities have 10 or more emergency power
generator UST systems? Who owns these facilities?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
2. Airport Hydrant Fuel Distribution Systems
What is EPA proposing?
EPA is proposing to regulate currently deferred airport hydrant
fuel distribution systems (also referred to as airport hydrant
systems). This means airport hydrant systems will no longer be deferred
from the requirements of 40 CFR part 280, subparts B (UST Systems:
Design, Construction, Installation and Notification); C (General
Operating Requirements); D (Release Detection); E (Release Reporting,
Investigation, and Confirmation); G (Out-of-Service UST Systems and
Closure); and H (Financial Responsibility).
Airport hydrant systems installed on or before the effective date
of the final UST regulation must begin meeting the requirements of
subparts B (except Sec. 280.22) and C within three years of the
effective date of the final UST regulation, subpart D according to the
schedule in the table below, and Sec. 280.22 of subpart B along with
subparts E, G, and H on the effective date of the final UST regulation.
Airport hydrant systems installed after the effective date of the final
UST regulation must meet these requirements at the time of
installation. Airport hydrant systems with aboveground storage tanks
(ASTs) directly connected to the underground hydrant piping are not
regulated UST systems under 40 CFR part 280, unless 10 percent or more
of the total capacity of the system, including underground piping, is
beneath the surface of the ground.
Schedule for Phase In of Subpart D
————————————————————————
Time frame
Component and type of release (after [effective Description of
detection used date of rule]) requirement
————————————————————————
Piping using periodic Within three Conduct one piping
pressurized bulk line years. tightness test
tightness testing. Between years according to the
three and six. bulk line tightness
testing requirement
using the maximum
detectable leak
rates for semiannual
testing. For bulk
piping segments not
capable of meeting
the 3.0 gallon per
hour leak rate,
owners and operators
may use a leak rate
of up to 6.0 gallons
per hour.
Between years six Conduct one piping
and seven. tightness test
according to the
bulk line tightness
testing requirement
using the maximum
detectable leak
rates for semiannual
testing.
—————————————–
After year seven. Begin conducting
piping tightness
testing according to
the bulk line
tightness testing
requirement.
————————————————————————
All other piping and tank Within three Perform release
release detection methods. years. detection according
to this subpart.
————————————————————————
EPA is proposing to define an airport hydrant fuel distribution system
as an UST system that is a combination of one or more tanks directly
connected to underground hydrant piping used to fuel aircraft. These
systems do not have a dispenser at the end of the piping run, but
rather a hydrant (fill stand). If an AST is feeding an intermediary
tank or
[[Page 71727]]
tanks, this proposed definition does not include the AST, but does
include all underground piping entering and leaving intermediary tanks
and the intermediary tank(s). Intermediary tanks are those tanks
directly connected to the hydrant piping.
Release Detection–Tanks
EPA is proposing airport hydrant system tanks installed prior to
the effective date of the final UST regulation meet these requirements:
The following tanks must be monitored using release
detection methods specified in Sec. 280.43.
[cir] Shop fabricated tanks.
[cir] Field-constructed tanks with a capacity less than or equal to
50,000 gallons.
Field-constructed tanks with capacity greater than 50,000
gallons must either be monitored using release detection methods
specified in Sec. 280.43 or use one of the alternatives for tanks
listed in section C-3–UST Systems With Field-Constructed Tanks.
EPA is proposing new or replaced airport hydrant system tanks installed
after the effective date of the final UST regulation be secondarily
contained and perform interstitial monitoring according to Sec.
280.43(g).
Release Detection–Piping
EPA is proposing airport hydrant system piping meet these release
detection requirements:
Piping must be monitored using release detection methods
specified in Sec. 280.44; or
Use one of these alternatives:
Perform a semiannual or annual bulk line tightness test at or above
operating pressure in accordance with the table below. Bulk piping
segments >=100,000 gallons not capable of meeting the maximum 3.0
gallon per hour leak rate for the semiannual test may be tested at a
leak rate up to 6.0 gallons per hour according to the schedule in Sec.
280.40(c):
Maximum Detectable Leak Rate per Test Section Volume
—————————————————————————————————————-
Semiannual test
maximum detectable Annual test maximum
Test section volume (gallons) leak rate (gallons detectable leak rate
per hour) (gallons per hour)
—————————————————————————————————————-
<50,000………………………………………………….. 1.0 0.5
>=50,000 to <75,000……………………………………….. 1.5 0.75
>=75,000 to <100,000………………………………………. 2.0 1.0
>=100,000………………………………………………… 3.0 1.5
—————————————————————————————————————-
The bulk line tightness test must be capable of detecting the
maximum detectible leak rate listed in the table above with a
probability of detection of 0.95 and a probability of false alarm of
0.05.
[cir] Perform continuous interstitial monitoring designed to detect
a release from any portion of the underground piping that routinely
contains product according to Sec. 280.43(g).
[cir] Use an automatic line leak detector that alerts the presence
of a leak by restricting or shutting off flow of regulated substances
through piping or triggering an audible or visual alarm. This method
may be used only if it can detect a leak of three gallons per hour at
10 pounds per square inch line pressure within one hour or equivalent.
When using this method, also:
-At least every three months, perform interstitial monitoring,
designed to detect a release from any portion of the underground piping
that routinely contains product, according to Sec. 280.43(g); and
-Conduct an annual leak detector operation test according to Sec.
280.40(a)(3).
[cir] The implementing agency may approve another method if the
owner and operator can demonstrate the method can detect a release as
effectively as any of the other three methods. In comparing methods,
the implementing agency shall consider the size of release the method
can detect and frequency and reliability of detection. Owners and
operators must comply with conditions imposed by the implementing
agency.
All recordkeeping requirements in Sec. 280.45 apply to these proposed
release detection methods.
Release Prevention
EPA is proposing airport hydrant systems meet corrosion protection,
spill, and overfill requirements. For corrosion protection, EPA is
proposing airport hydrant systems meet one of these:
The new tank and piping standards described in Sec.
280.20; or
Airport hydrant systems installed on or before the
effective date of the final UST regulation can be constructed of metal
and cathodically protected according to a code of practice developed by
a nationally recognized association or independent testing laboratory
and meet the following:
[cir] Field installed cathodic protection systems must be: designed
by a corrosion expert; designed to allow for the determination of
current operating status for impressed current systems; and operated
and maintained in accordance with Sec. 280.31 or guidelines
established by the implementing agency; and
[cir] Tanks greater than 10 years old without cathodic protection
must be assessed to ensure they are structurally sound and free of
corrosion holes prior to adding cathodic protection. The assessment
must be by internal inspection or another method the implementing
agency determines adequately assesses the tank for structural soundness
and corrosion holes.
EPA is proposing airport hydrant systems installed on or before the
effective date of the final UST regulation that are not upgraded
according to Sec. 280.21 within three years of the effective date of
the final UST regulation be permanently closed according to Sec.
280.70. EPA is proposing internal lining not be allowed for meeting the
corrosion protection upgrade requirement.
EPA is proposing to exclude new and replaced piping in airport
hydrant systems from secondary containment requirements in Sec.
280.20(b).
Notification
EPA is proposing that, no later than 30 days after the effective
date of the final UST regulation, owners of regulated airport hydrant
systems installed prior to the effective date of final UST regulation
notify appropriate implementing agencies that their systems exist.
Financial Responsibility
EPA is proposing airport hydrant systems no longer be deferred.
This means airport hydrant systems that have not been permanently
closed will be
[[Page 71728]]
subject to financial responsibility requirements in subpart H.
Deferred Components
Aboveground components of airport hydrant systems are currently
regulated by SPCC because they are not fully regulated under the UST
regulations.\32\ EPA is proposing to continue deferring aboveground
tanks associated with airport hydrant systems that meet the UST system
definition from the requirements of subparts B, C, D, E, and G.
—————————————————————————
\32\ Spill Prevention, Control, And Countermeasure Rule. http://www.epa.gov/oem/content/spcc/index.htm.
—————————————————————————
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing to regulate airport hydrant systems because a
release from one of these systems may pose a significant threat to
human health and the environment. In addition, technology is now
available for release prevention and adequate release detection
monitoring. In some cases airport hydrant system piping stores millions
of gallons of fuel; airport hydrant systems handle large volumes of
regulated substances on a daily basis. Leaks from underground piping
and other appurtenances can contaminate subsurface soil beneath the
airport apron and runways, groundwater, and nearby surface water. Even
though there is a small universe of these systems, mainly owned by the
Department of Defense (DoD), evidence shows a substantial release can
have a major impact on the environment.
For example, at Pease Air Force Base, jet fuel was delivered to the
runway apron via an underground fueling system. Throughout the life of
the system, releases contaminated soils and groundwater, forming plumes
of regulated substances in the groundwater.\33\ A site release study
identified 60 to 70 release points with varying degrees of severity
along the refueling system line. Free product was found under the apron
when the systems were closed.\34\ There are no available historical
records showing the sources of release or the volumes of regulated
substances released. However, the presence of soil and groundwater
contamination poses a significant threat to public health and the
environment.
—————————————————————————
\33\ New Hampshire Department of Environmental Services, Air
Resources Division. 2009. Permit Application Review Summary, Former
Pease AFB Remediation Project, 09-0113. 10 March 2010, see: http://www2.des.state.nh.us/OneStopPub/Air/330159094909-0113TypeSummary.pdf.
\34\ Hilton, Scott. Site Summaries Pease Air Force Base
Newington/Portsmouth. 2008. NH Department of Environmental Services.
10 March 2010 see: http://des.nh.gov/organization/divisions/waste/hwrb/fss/superfund/summaries/pease.htm.
—————————————————————————
In the 1988 UST regulation, EPA deferred airport hydrant systems
because release detection and prevention technologies were not readily
available for these unique systems. Given current availability of those
technologies, requiring release prevention equipment and regular
release detection tests are keys to preventing and quickly identifying
releases before they contaminate the surrounding environment.
Additionally, 16 state UST programs which include approximately 40
percent of the existing universe of these UST systems, no longer defer
airport hydrant systems and now regulate them.
EPA is proposing to define airport hydrant system in order to
clarify which components of these systems will be regulated. There is
currently some uncertainty about what an airport hydrant system is
because of the lack of a federal definition and inconsistencies between
different state definitions. Today’s proposed definition of airport
hydrant system clarifies which components will be regulated. Examples
of tank and piping configurations for airport hydrant systems can be
found in the docket for this proposed rulemaking.\35\
—————————————————————————
\35\ Example Tank and Piping Configurations for Airport Hydrant
Systems developed by EPA/OUST.
—————————————————————————
EPA is proposing airport hydrant systems installed on or before the
effective date of the final UST regulation begin meeting the
requirements of subparts B (except Sec. 280.22) and C within three
years of the effective date of the final UST regulation, subpart D
according to the phase in schedule in the table above, and Sec. 280.22
of subpart B along with subparts E, G, and H on the effective date of
the final UST regulation. Airport hydrant systems installed after the
effective date of the final UST regulation must meet all requirements
at installation. Three years allows owners and operators enough time to
implement the requirements of subparts B (except Sec. 280.22) and C.
EPA is providing a phase in period for bulk line tightness testing in
subpart D to allow owners and operators ample time to upgrade their
piping systems and meet the leak rate criteria. EPA is proposing to
allow owners and operators for the first six years (two test periods)
to meet a higher threshold of up to 6.0 gallons per hour for those
piping segments that cannot meet the more stringent maximum 3.0 gallons
per hour threshold due to technical reasons. These technical reasons
include exceeding capabilities of currently available pressure-based
methods to achieve the required leak rate. Currently available methods
are capable of testing larger volume test sections to a leak rate of
6.0 gallons. The higher threshold of 6.0 gallons per hour provides for
use of existing test methods during the first six year period. Six
years will provide owners and operators time to upgrade their piping
systems to meet the up to 3.0 gallon per hour threshold for semiannual
testing. Between years six and seven of the phase in, EPA proposes to
allow owners and operators to conduct one additional bulk tightness
test that meets the semiannual testing threshold. Beginning in year
seven, owners and operators must begin meeting the semiannual and
annual bulk line tightness testing requirements described earlier in
this section. For all other tank and piping release detection options,
EPA is proposing a three year phase in because these methods will not
require significant construction or upgrades for implementation.
Finally, owners and operators can implement the requirements of Sec.
280.22 of subpart B along with subparts E, G, and H beginning on the
effective date of the final UST regulation because upgrades or special
equipment are not needed to meet the requirements in these subparts.
Release Detection
EPA is proposing release detection for airport hydrant systems
because, unlike in the 1980s, release detection technologies are now
available. Airport hydrant systems typically consist of a series of
large diameter shop-fabricated tanks; although some airport hydrant
systems use field-constructed tanks. EPA is proposing release detection
requirements for shop-fabricated tanks and field-constructed tanks in
airport hydrant systems. See section C-3 for proposed release detection
requirements for UST systems with field-constructed tanks.
EPA discussed airport hydrant systems in the 1988 UST regulation
preamble. These systems were very large, contained great volumes of
fuel (capacities in the millions of gallons), and consisted of miles of
piping that was typically eight to 24 inches in diameter. Airport
hydrant systems typically had cathodic protection and were monitored
for releases periodically. Inventory control was often used, but the
sensitivity of this technique was limited due to the large volume
airport hydrant systems typically handled. No single leak test appeared
to be an industry standard.
Between proposing and finalizing the 1988 UST regulation, EPA
became
[[Page 71729]]
aware of several airport hydrant system leaks that harmed the
environment. However, limited information kept EPA from realizing the
extent of airport hydrant system problems. At the time, EPA believed
release detection was not feasible for airport hydrant systems. To
allow more time to gather information, EPA deferred airport hydrant
systems in the 1988 regulation from release detection requirements in
subpart D as well as subparts B, C, E, G, and H requirements.
Over the last 20 years, the petroleum services industry developed
release detection monitoring technologies for airport hydrant systems.
NWGLDE’s list in Large Diameter Line Leak Detection Methods (6 Inches
Diameter Or Above) \36\ identifies methods capable of detecting
releases from airport hydrant systems.
—————————————————————————
\36\ National Work Group On Leak Detection Evaluation’s (NWGLDE)
List Of Leak Detection Evaluations For Storage Tank Systems: http://www.nwglde.org/.
—————————————————————————
EPA contacted several vendors to determine strengths and
limitations of release detection methods for airport hydrant systems.
EPA also talked with DoD’s Defense Logistics Agency (DLA) Energy \37\
about their challenges in addressing release detection requirements in
states, such as California, which do not defer airport hydrant systems
from release detection. DLA Energy also monitors airport hydrant
systems in other states, which provides them with significant
information about airport hydrant system release detection.
—————————————————————————
\37\ Defense Logistics Agency Energy was formerly known as
Defense Energy Support Center (DESC).
—————————————————————————
EPA acknowledges airport hydrant systems vary greatly and most of
these systems cannot meet underground piping release detection
requirements in the 1988 UST regulation because of issues such as time
to conduct the test and leak rate thresholds. Nonetheless, other
release detection methods are currently available to monitor airport
hydrant systems. EPA is not proposing release detection methods monitor
at the same leak rate or frequency as pressurized piping systems at
retail service stations. Standard release detection systems can
successfully test and detect releases on USTs and pressurized piping at
retail service stations, but cannot achieve the same accuracy within a
reasonable time frame on underground piping in airport hydrant systems.
The large diameters and varying pipe lengths in airport hydrant systems
introduce variables that prohibit accurate monitoring at leak rates
within a reasonable time frame required in the 1988 UST regulation.
Compared to typical retail service stations, airport hydrant
systems have large product volume throughputs. The 1988 UST regulation
release detection test methods are limited by volume. To produce
accurate test results, underground hydrant system piping needs to be
isolated in appropriately sized segments. Some airport hydrant systems
have numerous isolation points with available connections for release
detection equipment; others have up to one-half mile between
underground piping segments available for accurate testing. The greater
the volume of a segment, the more time it takes to obtain a valid
result at a given leak rate.
Product temperature fluctuations present challenges for release
detection testing of airport hydrant system piping. As temperatures
fluctuate, product expands or contracts, increasing or decreasing
product volume and pressure. Fluctuating line pressure during a release
detection test can mask an existing release or falsely indicate one
occurred. To lessen this, an out of service period when testing large
diameter airport hydrant piping could range from one to several days
after the last product transfer in order to meet maximum leak detection
rates in the 1988 UST regulation. Removing airport hydrant systems from
service for these extended periods will greatly impede their purpose.
In contrast, out of service periods on underground piping at retail
service stations can last up to several hours after the last product
transfer prior to pressure testing.
Although technology is available, it would be cost prohibitive and
require significant facility down time for owners and operators to
monitor airport hydrant systems for releases at the rates and
frequencies required in the 1988 UST regulation.\38\ As a result, EPA
is proposing several options for owners and operators to meet the
release detection requirement. These options provide flexibility for a
wide variety of airport hydrant systems. In those instances where
airport hydrant systems can meet the release detection methods in Sec.
280.43 and Sec. 280.44, owners and operators may use those methods.
EPA is also proposing the following four alternatives to meet the
airport hydrant system release detection requirement for piping.
—————————————————————————
\38\ See section F of this preamble and Regulatory Impact
Analysis (RIA) for the proposed rule, available as a separate
document in the docket, for information on the cost differences
between meeting conventional release detection requirements and the
proposed alternative requirements for airport hydrant systems and
UST systems with field-constructed tanks.
—————————————————————————
Perform semiannual or annual bulk line testing at or above
operating pressure with a probability of detection of 0.95 and a
probability of false alarm of 0.05. EPA thinks this will be the most
frequently used method due to cost and minimal impact on down time for
the piping system. It allows owners and operators to meet a variable
leak rate based on piping test section volume. The leak rate ranges
from one to three gallons \39\ per hour, depending on piping volume for
semiannual testing and from 0.5 to 1.5 gallons per hour for annual
testing. EPA is proposing three gallons per hour as the maximum
threshold because the majority of available bulk line testing methods
are capable of meeting this leak detection rate. To effectively detect
leaks from the pressurized piping systems, industry practice involves
performing pressure-based testing at levels above standard operating
pressure. EPA is proposing requiring a test pressure at or above
operating pressure in consideration of these bulk piping systems
typically operating at pressures much higher than conventional gasoline
stations. Testing at 1.5 times operating pressure may not be practical
or safe for these piping systems. The probabilities of detection and
false alarm are consistent with the line leak detection requirements in
the 1988 UST regulation.
—————————————————————————
\39\ Owners and operators of bulk piping systems with test
section volumes of 100,000 gallons or greater, due to technical
reasons discussed in this section, may test their systems at a
higher threshold of up to 6.0 gallons per hour within the six year
phase-in period.
—————————————————————————
Use continuous interstitial monitoring–This monitoring
method is designed to detect a release from any portion of the
underground piping that routinely contains product; it must operate in
an uninterrupted manner. EPA considered requiring an automatic line
leak detector in combination with this alternative method, similar to
conventional pressurized piping requirements in the 1988 UST
regulation. However, conventional line leak detectors today cannot
properly operate on bulk pressurized piping in airport hydrant systems.
Use an automatic line leak detector–Conventional
pressurized piping systems operate at a significantly lower pressure
than airport hydrant systems. In addition, EPA is not aware of a line
leak detector that adequately detects releases on airport hydrant
systems. Yet because some states regulate airport hydrant systems and
industry has experience with these systems, comparable release
detection technology may be developed in the future. With that in mind,
EPA is
[[Page 71730]]
proposing line leak detectors be capable of detecting a release rate of
three gallons per hour at 10 pounds per square inch line pressure
within one hour or equivalent. This is consistent with the 1988 UST
regulation. To detect a release from any portion of the underground
piping that routinely contains product, EPA is proposing to combine
this alternative with interstitial monitoring performed at least once
every three months. This combination will quickly detect catastrophic
releases while checking for much smaller problems on a less frequent–
every three month–basis. Owners and operators will be required to
conduct an annual test of the line leak detector’s operation according
to the final UST regulation. See section B-5 for more information on
the annual test.
Approval by the implementing agency of another method if
the owner and operator can demonstrate that the method can detect a
release as effectively as any of the methods listed above–The
implementing agency must consider the size of the release that the
method can detect as well as the frequency and reliability of detection
when comparing methods. Owners and operators must comply with any
conditions imposed by the implementing agency on the method’s use.
Release Prevention
In Sec. 280.20, EPA is proposing new or replaced tanks and piping
have secondary containment with interstitial monitoring. Airport
hydrant systems’ piping ranges from eight to 24 inches in diameter with
very long lengths, sometimes miles. In contrast, pressurized piping at
a typical retail gas station is two inches in diameter with relatively
short lengths.
EPA discussed with DLA Energy and industry the feasibility of
installing secondary containment on piping associated with airport
hydrant systems. These systems, primarily located on military
installations, are complex and lack similarity. EPA is taking the
position that installing secondary containment on airport hydrant
system piping may be impracticable.
To detect a leak, secondary containment must be a liquid tight
barrier designed to hold the leak between the tank and the barrier.
Piping is sloped in fractions of an inch per foot of piping run to
direct a leak toward the interstitial monitor. Because airport hydrant
system piping lengths can typically be thousands of feet, it would be
very difficult to install a system with enough slope that could
adequately monitor the lowest point of a piping run. In addition,
variable sized fittings are needed to join different diameters of
piping, increasing the complexity of installing secondary containment.
Finally, airport hydrant system piping is normally constructed of
steel. Condensation can accumulate between the inner and outer walls,
promoting corrosion of both pipe walls in the interstitial space and
increasing the likelihood of a release to the environment.
EPA acknowledges engineering and design challenges (that is,
varying piping diameter and length, along with corrosion) that can
occur when providing secondary containment for piping associated with
airport hydrant systems.\40\ Therefore, EPA is proposing not to require
this piping meet secondary containment requirements. However, EPA is
proposing new and replaced underground tanks associated with airport
hydrant systems meet secondary containment requirements. See section A-
2 for more information about proposed secondary containment
requirements for tanks.
—————————————————————————
\40\ DOD’s DLA Energy, “Response to EPA–Release Detection
Point Paper,” dated 03/10.
—————————————————————————
As with all other regulated UST systems, EPA is proposing all
airport hydrant systems meet corrosion protection requirements. Because
interim prohibition has been in effect since May 1985, these systems
generally are already equipped with corrosion protection (that is,
constructed of: non-corrodible material; coated and cathodically
protected steel; fiberglass reinforced plastic; or steel tank clad with
fiberglass reinforced plastic).
EPA is proposing not to allow adding internal lining as a means of
corrosion protection for tanks in airport hydrant systems that are not
already upgraded. In the 1988 UST regulation, EPA allowed internal
lining as a corrosion protection upgrade, but stated in the preamble
that internal lining of steel tanks was a temporary upgrade to meet
corrosion protection requirements, only if the lining continued meeting
original design specifications. After 1998, if an inspected lining did
not meet original design specifications and could not be repaired
according to industry codes, it no longer met the upgrade requirements
and had to be replaced. In addition, lining inspections show there are
issues with internal linings.\41\ Reports of premature failures due to
improper installation cause additional concerns about the long-term
integrity of the lining.\42\ A study of lined tanks up to12 years old
concluded that 44 percent of tanks’ linings were cracked, discolored,
and flaked from tank walls.\43\ If internal lining fails, the chance of
a leak into the environment is greater when there is no external
corrosion protection on the tank. Because of these concerns, EPA is
proposing internal lining not be an option for meeting the corrosion
protection requirements for tanks in airport hydrant systems.
—————————————————————————
\41\ LUSTLINE, Bulletin 38, June 2001. http://www.neiwpcc.org/lustline/.
\42\ Wisconsin Department Of Commerce Web site: http://www.commerce.state.wi.us/er/pdf/bst/ProgramLetters_PL/ER-BST-PL-LINING.pdf.
\43\ LUSTLINE, Bulletin 30, September 1998. http://www.neiwpcc.org/lustline/.
—————————————————————————
As with all other regulated UST systems, EPA is proposing airport
hydrant systems meet spill and overfill requirements to prevent
releases to the environment. After discussion with industry and DLA
Energy, EPA is taking the position that existing airport hydrant
systems are already equipped with spill prevention devices that will
adequately prevent spills and overfills.
Airport hydrant systems installed on or before the effective date
of the final UST regulation that do not meet the upgrade requirements
within three years after the effective date of the rule must be
permanently closed according to Sec. 280.70. EPA is requiring
permanent closure to prevent releases to the environment from airport
hydrant systems that have not been upgraded.
Notification
To make implementing agencies aware airport hydrant systems exist,
EPA is proposing owners of these systems submit a one-time notification
to the implementing agency. Owners must notify within 30 days of the
effective date of the final regulation. This will allow implementing
agencies to include airport hydrant systems in their inventories.
Financial Responsibility
Because EPA is proposing to eliminate the deferral for airport
hydrant systems, they will no longer be exempt from financial
responsibility requirements in subpart H. Owners and operators will be
required to comply by the effective date of the final UST regulation.
The 1988 UST financial responsibility regulation exempts state and
federal entities. Therefore, federal and state owners and operators of
airport hydrant systems will not have to meet the financial
responsibility requirement. Nearly all airport hydrant systems are
owned by the federal government.
[[Page 71731]]
Deferred Components
EPA is proposing to continue deferring aboveground tanks associated
with airport hydrant systems from the requirements of subparts B, C, D,
E, and G. EPA regulates underground storage tanks and piping through 40
CFR part 280 and aboveground tanks through 40 CFR part 112 (Oil
Pollution Prevention). Facilities with 1,320 gallons of aboveground oil
storage capacity that could reasonably be expected to discharge oil
into navigable waters or adjoining shoreline are subject to the SPCC
regulation, under the authority of the Clean Water Act (CWA).\44\ The
SPCC regulation includes requirements for oil spill prevention,
preparedness, and response to prevent oil discharges to navigable
waters and adjoining shorelines.\45\ The SPCC regulation requires
periodic integrity testing and inspection of bulk storage containers
and periodic integrity testing and leak testing of valves and piping
associated with containers. The SPCC regulation also requires regulated
facilities prepare and maintain a written plan that includes measures
to prevent, prepare for, and respond to oil discharges that threaten
navigable waters and adjoining shorelines. For these reasons, we
believe the SPCC regulation is the most effective means of addressing
aboveground tanks associated with airport hydrant systems.
—————————————————————————
\44\ Overview Of Oil Pollution Prevention Regulations. http://www.epa.gov/oem/content/lawsregs/opprover.htm.
\45\ Spill Prevention, Control, And Countermeasure Rule. http://www.epa.gov/oem/content/spcc/index.htm.
—————————————————————————
What issues related to this change does EPA request comment or
additional data on?
Are the release detection options and time frames
appropriate and sufficient?
Is the performance requirement of three gallons per hour
at 10 pounds per square inch line pressure within one hour or
equivalent proposed for line leak detectors for bulk piping
appropriate?
Should EPA consider including specific requirements for
non-pressurized piping tightness testing methods such as chemical
marker methods? If so, what should those requirements be?
Are there other release detection options EPA should
consider?
In order to address potential concerns associated with
over pressurizing bulk piping systems, EPA proposed testing at the
system’s operating pressure instead of above it. EPA understands there
are industry standards that recommend testing above operating pressure.
Is testing these systems at operating pressure sufficient? Please
provide specific detail to accompany your answer.
Is the definition of airport hydrant fuel distribution
system clear and appropriate?
Are you aware of any releases from airport hydrant
systems? If so, what were the sources, causes, and impacts to the
environment?
Should EPA consider revising the date in 280.73 for
previously deferred UST systems? Revision of this date would mean that
these UST systems closed prior to the effective date of the final rule
would not have to meet Subpart G unless the implementing agency directs
otherwise based on a current or potential threat to human health and
the environment. How many of these UST systems have been closed since
December 22, 1988?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
3. UST Systems With Field-Constructed Tanks
What is EPA proposing?
EPA is proposing to regulate currently deferred UST systems with
field-constructed tanks. This means field-constructed tanks will no
longer be deferred from the requirements of 40 CFR part 280, subparts B
(UST Systems: Design, Construction, Installation and Notification), C
(General Operating Requirements), D (Release Detection), E (Release
Reporting, Investigation, and Confirmation), G (Out-of-Service UST
Systems and Closure), and H (Financial Responsibility).
UST systems with field-constructed tanks installed on or before the
effective date of the final UST regulation must begin meeting the
requirements of subparts B (except Sec. 280.22) and C within three
years of the effective date of the final UST regulation, subpart D
according to the schedule in the table below, and Sec. 280.22 of
subpart B along with subparts E, G, and H on the effective date of the
final UST regulation. UST systems with field-constructed tanks
installed after the effective date of the final UST regulation must
meet these requirements at the time of installation.
Schedule for Phase In of Subpart D
————————————————————————
Time frame (after
Component and type of release [effective date Description of
detection used of rule ]) requirement
————————————————————————
Piping using periodic Within three Conduct one piping
pressurized bulk line years. tightness test
tightness testing. Between years according to the
three and six.. bulk line tightness
testing requirement
using the maximum
detectable leak
rates for semiannual
testing. For bulk
piping segments not
capable of meeting
the 3.0 gallon per
hour leak rate,
owners and operators
may use a leak rate
of up to 6.0 gallons
per hour.
—————————————–
Between years six Conduct one piping
and seven. tightness test
according to the
bulk line tightness
testing requirement
using the maximum
detectable leak
rates for semiannual
testing.
—————————————–
After year seven. Begin conducting
piping tightness
testing according to
the bulk line
tightness testing
requirement.
————————————————————————
All other piping and tank Within three Perform release
release detection methods. years. detection according
to this subpart.
————————————————————————
[[Page 71732]]
Release Detection–Tanks
EPA is proposing that UST systems with field-constructed tanks
installed prior to the effective date of the final UST regulation meet
these release detection requirements:
Field-constructed tanks with capacity less than or equal
to 50,000 gallons must be monitored using the release detection methods
in Sec. 280.43.
Field-constructed tanks with a capacity greater than
50,000 gallons must either be monitored using release detection methods
in Sec. 280.43 or use one of these alternatives:
[cir] Conduct an annual bulk tank tightness test that can detect a
0.5 gallon per hour leak rate;
[cir] At least once every 30 days, use an automatic tank gauging
system to perform release detection, which can detect a leak rate of
one gallon per hour or less. At least every three years, this method
must be combined with a bulk tank tightness test that can detect a 0.2
gallon per hour leak rate;
[cir] At least once every 30 days, use an automatic tank gauging
system to perform release detection, which can detect a leak rate of
two gallons per hour or less. At least every two years, this method
must be combined with a bulk tank tightness test that can detect a 0.2
gallon per hour leak rate; or
[cir] The implementing agency may approve another method if the
owner and operators can demonstrate the method can detect a release as
effectively as any of the other three methods. In comparing methods,
the implementing agency shall consider the size of release the method
can detect and frequency and reliability of detection. Owners and
operators must comply with conditions imposed by the implementing
agency.
All bulk tank tightness testing must be capable of detecting leak rates
with a probability of detection of 0.95 and a probability of false
alarm of 0.05.
All recordkeeping requirements in Sec. 280.45 apply to these
proposed release detection methods.
Tanks associated with new or replaced UST systems with field-
constructed tanks installed after the effective date of the final UST
regulation must be secondarily contained and perform interstitial
monitoring according to Sec. 280.43(g).
Release Detection–Piping
EPA is proposing underground piping of UST systems with field-
constructed tanks meet the release detection requirements for hydrant
piping described in C-2–Airport Hydrant Fuel Distribution Systems.
Release Prevention
EPA is proposing UST systems with field-constructed tanks meet
corrosion protection, spill, and overfill requirements. For corrosion
protection, EPA is proposing UST systems with field-constructed tanks
meet one of these:
The new tank and piping standards described in Sec.
280.20; or
UST systems with field-constructed tanks installed on or
before the effective date of the final UST regulation can be
constructed of metal and cathodically protected according to a code of
practice developed by a nationally recognized association or
independent testing laboratory and meet the following:
[cir] Field installed cathodic protection systems must be: designed
by a corrosion expert; designed to allow for the determination of
current operating status for impressed current systems; and operated
and maintained in accordance with Sec. 280.31 or guidelines
established by the implementing agency; and
[cir] Tanks greater than 10 years old without cathodic protection
must be assessed to ensure they are structurally sound and free of
corrosion holes prior to adding cathodic protection. The assessment
must be by internal inspection or another method the implementing
agency determines adequately assesses the tank for structural soundness
and corrosion holes.
EPA is proposing UST systems with field-constructed tanks installed on
or before the effective date of the final UST regulation that are not
upgraded according to Sec. 280.21 within three years of the effective
date of the final UST regulation must be permanently closed according
to Sec. 280.70. EPA is proposing internal lining not be allowed for
meeting the corrosion protection upgrade requirement.
EPA is proposing to exclude new and replaced piping of UST systems
with field-constructed tanks from secondary containment requirements in
Sec. 280.20(b).
Notification
EPA is proposing that, no later than 30 days after the effective
date of the final UST regulation, owners of regulated UST systems with
field-constructed tanks notify appropriate implementing agencies that
their systems exist.
Financial Responsibility
EPA is proposing UST systems with field-constructed tanks no longer
be deferred. This means UST systems with field-constructed tanks that
have not been permanently closed will be subject to financial
responsibility requirements in subpart H.
Deferred Components
EPA is proposing to continue deferring aboveground tanks associated
with UST systems with field-constructed tanks from the requirements of
subparts B, C, D, E, and G.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing to regulate UST systems with field-constructed
tanks because they are very large and pose a substantial threat to
human health and the environment. Typical tank sizes range from 20,000
gallons to greater than two million gallons. The total universe of UST
systems with field-constructed tanks is small. There are approximately
239 UST systems with field-constructed tanks.
Several releases from bulk field-constructed tanks have been
recorded at the Craney Island Fuel Terminal in Portsmouth, VA.\46\ For
example, a 2.1 million gallon field-constructed UST system that
operated from the 1950s to the mid 1980s released an estimated 300,000
to 500,000 gallons of product into the environment. Free product was
found within 20 feet of a nearby creek, and the resulting plume covered
more than five acres. Remediation efforts have been on-going since
1986. The release was attributed to tank and/or piping failures and
possibly from a nearby tank that had a 127,000 gallon overfill in 1986.
Another 2.1 million gallon field-constructed tank system that operated
from the 1950s until 2000 released an estimated 175,000 to 250,000
gallons of jet fuel into the environment. The release was attributed to
piping failures. The resulting plume covered three acres and threatened
a nearby creek. In both of these examples, release prevention and
release detection requirements could have reduced the severity of these
releases and may well have prevented these releases.
—————————————————————————
\46\ Virginia Department of Environmental Quality.
—————————————————————————
EPA is also proposing this change because design and construction
standards for UST systems with field-constructed tanks are now
available. In the 1988 UST regulation preamble, EPA indicated tank
design and construction methods for field-constructed tanks differed
from factory-built tanks; we did not have sufficient time to develop an
appropriate regulation related to design and construction for those
tanks. Although design standards are now
[[Page 71733]]
available for aboveground field-constructed tanks, EPA is not aware of
standards written according to a national code of practice developed by
a nationally recognized or independent testing laboratory. However,
military construction standards, written as guidance for aboveground
and underground storage tank construction projects on military
installations, are available.\47\ EPA considers current military
construction standards appropriate to sufficiently address field-
constructed tank design and construction. Implementing agencies may use
military design and construction standards to address the site specific
nature of field-constructed tank systems on military installations.
Note that more stringent standards will prevail if a field-constructed
tank is installed in a locale with more stringent design standards. EPA
expects owners and operators to use these existing standards and
specifications for design and construction of UST systems with field-
constructed tanks.
—————————————————————————
\47\ United Facilities Criteria (UFC) 3-460-01, “Petroleum Fuel
Facilities,” prescribes basic specifications and guidance for
designing fueling systems on military installations. Unless
otherwise noted, the handbook uses nationally recognized association
and institute standards in accordance with the appropriate service
policy. For the purposes of this preamble, a “field-constructed
tank” is analogous to a “cut and cover” tank.
—————————————————————————
EPA is proposing UST systems with field-constructed tanks installed
on or before the effective date of the final UST regulation begin
meeting the requirements of subparts B (except Sec. 280.22) and C
within three years of the effective date of the final UST regulation,
subpart D according to the phase in schedule in the table above, and
Sec. 280.22 of subpart B along with subparts E, G, and H on the
effective date of the final UST regulation. UST systems with field-
constructed tanks installed after the effective date of the final UST
regulation must meet all requirements at installation. Three years
allows owners and operators enough time to implement the requirements
of subparts B (except Sec. 280.22) and C. EPA is providing a phase in
period for bulk line tightness testing in subpart D to allow owners and
operators ample time to upgrade their piping systems and meet the leak
rate criteria. EPA is proposing to allow owners and operators for the
first six years (two test periods) to meet a higher threshold of up to
6.0 gallons per hour for those piping segments that cannot meet the
more stringent maximum 3.0 gallons per hour threshold, due to technical
reasons. These technical reasons include exceeding capabilities of
currently available pressure-based methods to achieve the required leak
rate. Currently available methods are capable of testing larger volume
test sections to a leak rate of 6.0 gallons. The higher threshold of
6.0 gallons per hour provides for use of existing test methods during
the first six year period. Six years will provide owners and operators
time to upgrade their piping systems to meet the up to 3.0 gallon per
hour threshold for semiannual testing. Between years six and seven of
the phase in, EPA proposes to allow owners and operators to conduct one
additional bulk tightness test that meets the semiannual testing
threshold. Beginning in year seven, owners and operators must begin
meeting the semiannual and annual bulk line tightness testing
requirements described earlier in this section. For all other tank and
piping release detection options, EPA is proposing a three year phase
in because these methods will not require significant construction or
upgrades for implementation. Finally, owners and operators can
implement the requirements of Sec. 280.22 of subpart B along with
subparts E, G, and H beginning on the effective date of the final UST
regulation because upgrades or special equipment are not needed to meet
the requirements in these subparts.
Release Detection
In the 1988 UST regulation, EPA deferred UST systems with field-
constructed tanks in part due to lack of appropriate release detection
methods. At that time, EPA believed the majority of release detection
methods applied to factory-built tank systems and did not adequately
work for UST systems with field-constructed tanks. Over the last 20
years, effective release detection methods for UST systems with field-
constructed tanks have evolved. However, prescribed leak rates for
field-constructed tanks differ from those in Sec. 280.43 of the 1988
UST regulation, which generally apply to factory-built tanks.
Additionally, 19 state UST programs, which include approximately 60
percent of the existing universe of these UST systems, now regulate UST
systems with field-constructed tanks.
NWGLDE’s list in Bulk Underground Storage Tank Leak Detection
Methods (50,000 Gallons or Greater) \48\ identifies several methods
applicable to field-constructed tanks. Third party evaluators verified
those release detection methods achieve a variety of performance
standards. EPA contacted several vendors and DLA Energy to find out
about their experiences with release detection methods for field-
constructed tanks in states, such as California, which require UST
systems with field-constructed tanks meet release detection
requirements.
—————————————————————————
\48\ National Work Group on Leak Detection Evaluation’s (NWGLDE)
List of Leak Detection Evaluations for Storage Tank Systems: http://www.nwglde.org/.
—————————————————————————
EPA recognizes that most release detection methods for factory-
built tanks are capable of monitoring UST systems with field-
constructed tanks up to 50,000 gallons. After evaluating current
methods, EPA realized existing release detection options for tanks in
Sec. 280.41 of the 1988 UST regulation are generally not applicable to
UST systems greater than 50,000 gallons because most methods are
limited by tank capacity. As a result, EPA is proposing alternative
release detection monitoring methods at different leak rates and
frequencies for UST systems with field-constructed tanks greater than
50,000 gallons than for factory-built tanks.
Based on limited data about leaks from field-constructed tanks, EPA
is proposing two release detection requirements depending on tank size.
UST systems with field-constructed tanks up to 50,000 gallons will be
required to meet requirements in Sec. 280.41(a). UST systems with
field-constructed tanks greater than 50,000 gallons will be required
either to meet requirements in Sec. 280.41(a) or use an alternative
release detection method described below. EPA estimates a subset of
larger size tanks will be able to use automatic tank gauging systems
set to achieve leak rates in 280.43(d). NWGLDE’s list identifies
numerous automatic tank gauging systems capable of detecting leaks on
tanks up to 100,000 gallons.\49\
—————————————————————————
\49\ National Work Group on Leak Detection Evaluation’s (NWGLDE)
List of Leak Detection Evaluations for Storage Tank Systems: http://www.nwglde.org/.
—————————————————————————
Owners and operators of UST systems with field-constructed tanks
greater than 50,000 gallons will be allowed to choose several
alternative release detection methods. They must either perform annual
bulk underground tank tightness testing that can detect a 0.5 gallon
per hour leak rate or use an automatic tank gauging system that can
detect up to a two gallon per hour leak rate. Depending on the
automatic tank gauging system’s leak rate, a bulk underground tank
tightness test at a rate of 0.2 gallon per hour will be required at
least every two or three years. This proposed automatic tank gauging
requirement is different from the 1988 release detection requirement
for factory-built tanks. These proposed leak
[[Page 71734]]
rates and time frames for release detection testing are appropriate
because they will detect releases within a reasonable time frame given
the large tank sizes and time needed to perform testing on these tanks.
In addition, implementing agencies may approve another method of
release detection for UST systems with field-constructed tanks if the
owner and operator can demonstrate the method can detect a release as
effectively as any of the methods listed above. The implementing agency
must consider the size of release the method can detect as well as
frequency and reliability of detection when comparing methods. Owners
and operators must comply with any conditions imposed by the
implementing agency on the method’s use.
EPA acknowledges the complexities in performing release detection
on tanks significantly larger than 50,000 gallons. Perhaps the most
critical aspect is allowing sufficient time for a tank to reach a state
of equilibrium. As tank size increases, the time for a tank to reach an
equilibrium state increases significantly. Based on discussions with
release detection vendors, many larger tanks require multiple inactive
days to yield an accurate test result.
Most UST systems with field-constructed tanks are owned by DoD.
Taking these tanks out of service for multiple days to meet the 1988
release detection requirement would impede DoD’s mission, be
impractical to sustain, and result in significant costs.\50\ Our
proposed alternatives for release detection provide appropriate
environmental protection without substantially compromising DoD’s
mission. DoD can choose to combine an automatic tank gauge, at leak
rates achievable by automatic tank gauges on the market for monthly
tank monitoring, with precision bulk tank tightness testing. The
probabilities of detection and false alarm EPA proposes for bulk tank
tightness testing are consistent with the line leak detection
requirements in the 1988 UST regulation. DoD can also choose to perform
bulk tank tightness testing as a stand-alone method of release
detection. Staggering the test frequency will allow DoD to take tanks
out of service at different intervals without hindering its mission.
—————————————————————————
\50\ See section F of this preamble and Regulatory Impact
Analysis (RIA) for the proposed rule, available as a separate
document in the docket, for information on the cost differences
between meeting conventional release detection requirements and the
proposed alternative requirements for airport hydrant systems and
UST systems with field-constructed tanks.
—————————————————————————
Although current release detection methods can successfully perform
tests and detect leaks on pressurized piping at retail service
stations, these systems cannot achieve the same level of accuracy on
large diameter underground piping of UST systems with field-constructed
tanks. EPA is proposing piping of UST systems with field-constructed
tanks meet the same requirements proposed for airport hydrant system
piping. See section C-2 for proposed release detection requirements for
airport hydrant system piping.
Release Prevention
In Sec. 280.20, EPA is proposing new or replaced tanks and piping
have secondary containment. Secondary containment poses a much smaller
risk to the environment by providing an additional measure for
containing released regulated substances in the interstitial space
between the two walls of the UST system. Secondary containment must be:
Able to contain regulated substances released from the UST system until
they are detected and removed; able to prevent the release of regulated
substances to the environment at any time during the operational life
of the UST system; and checked for evidence of a leak at least once
every 30 days using interstitial monitoring that meets the requirements
of 280.43(g) for tanks. For UST systems with field-constructed tanks,
EPA is proposing only new and replaced tanks meet the secondary
containment requirement.
EPA discussed with DLA Energy and other vendors the feasibility of
installing secondary containment on piping of UST systems with field-
constructed tanks. Field-constructed tank system pipes range from four
to 20 inches in diameter, with lengths normally greater than 30,000
feet.\51\ Due to complex configurations and varying pipe lengths, we
believe installing secondary containment on piping of UST systems with
field-constructed tanks may be impractical. It would be difficult to
design a liquid tight barrier that could accommodate varying diameters
of underground piping. Because leaks occur at fittings and valves,
installing fittings and valves to join pipes with various diameters
along the piping run increases the likelihood of a release. Because
field-constructed tank system pipe lengths are normally significantly
greater than lengths of piping at a typical retail gasoline station, it
would be very difficult to install a system with enough sloping that
could adequately monitor the lowest point of a piping run. Finally,
condensation can accumulate in the interstice between the inner and
outer steel pipe walls, promoting corrosion of both pipe walls in the
interstitial space and increasing the likelihood of a release to the
environment.
—————————————————————————
\51\ DOD’s DLA Energy, “Response to EPA–Release Detection
Point Paper,” dated 03/10.
—————————————————————————
EPA acknowledges there are engineering and design challenges (that
is, varying pipe diameter and length, along with water accumulation in
the interstitial space) when secondarily containing piping of UST
systems with field-constructed tanks.\52\ Therefore, EPA is proposing
not to require secondary containment for piping of UST systems with
field-constructed tanks. However, EPA is proposing new and replaced
field-constructed tanks meet secondary containment requirements. See
section A-2 for more information about the proposed secondary
containment requirements for tanks.
—————————————————————————
\52\ DOD’s DLA Energy, “Response to EPA–Release Detection
Point Paper,” dated 03/10.
—————————————————————————
As with all other regulated UST systems, EPA is proposing UST
systems with field-constructed tanks meet corrosion protection
requirements. Because interim prohibition has been in effect since May
1985, UST systems with field-constructed tanks generally are already
equipped with corrosion protection (that is, constructed of: Non-
corrodible material; coated and cathodically protected steel;
fiberglass reinforced plastic; or steel tank clad with fiberglass
reinforced plastic). Field-constructed UST systems made of concrete
would meet the corrosion protection requirement because they are
constructed of a non-corrodible material.
As with airport hydrant systems, EPA is proposing not to allow
adding an internal lining as a means of corrosion protection for UST
systems with field-constructed tanks that are not already upgraded. See
section C-2 for an explanation of why EPA is not allowing these USTs to
be upgraded with internal lining.
As with all other regulated UST systems, EPA is proposing UST
systems with field-constructed tanks meet spill and overfill
requirements to prevent releases to the environment. After discussion
with industry and DoD’s DLA Energy, EPA is taking the position that
existing UST systems with field-constructed tanks are already equipped
with spill and overfill prevention devices that will adequately prevent
spills and overfills.
[[Page 71735]]
UST systems with field-constructed tanks installed on or before the
effective date of the final UST regulation that do not meet the upgrade
requirements within three years after the effective date of the rule
must be permanently closed according to Sec. 280.70. EPA is requiring
permanent closure to prevent releases to the environment from UST
systems with field-constructed tanks that have not been upgraded.
Notification
To make implementing agencies aware that UST systems with field-
constructed tanks exist, EPA is proposing owners of these systems
submit a one-time notification to the implementing agency. Owners must
notify within 30 days of the effective date of the final regulation.
This will allow implementing agencies to include UST systems with
field-constructed tanks in their inventories.
Financial Responsibility
Because EPA is proposing to eliminate the deferral for UST systems
with field-constructed tanks, they will no longer be exempt from
financial responsibility requirements in subpart H. Owners and
operators will be required to comply by the effective date of the final
UST regulation. The 1988 UST financial responsibility regulation
exempts state and federal entities. Therefore, federal and state owners
and operators of UST systems with field-constructed tanks will not have
to meet the financial responsibility requirement. Nearly all UST
systems with field-constructed tanks are owned by the federal
government.
Deferred Components
As with airport hydrant systems, EPA is proposing to continue
deferring the aboveground tanks associated with UST systems with field-
constructed tanks from subparts B, C, D, E, and G. See section C-2 for
an explanation of why EPA proposes to continue deferring these
aboveground components.
What issues related to this change does EPA request comment or
additional data on?
Are the release detection options and time frames
appropriate and sufficient?
Are there other release detection options EPA should
consider?
Are you aware of any releases from UST systems with field-
constructed tanks? If so, what were the sources, causes, and impacts to
the environment?
Is the proposed time frame for implementing the
requirements for UST systems with field-constructed tanks reasonable?
If not, please explain why.
Should EPA consider alternative options for closing very
large UST systems in place? For example, should EPA consider requiring
removal or allowing closure in place without filling the UST?
Should EPA consider revising the date in 280.73 for
previously deferred UST systems? Revision of this date would mean that
these UST systems closed prior to the effective date of the final rule
would not have to meet Subpart G unless the implementing agency directs
otherwise based on a current or potential threat to human health and
the environment. How many of these UST systems have been closed since
December 22, 1988?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
4. Wastewater Treatment Tank Systems
What is EPA proposing?
EPA is proposing to regulate wastewater treatment tank systems that
are not part of a wastewater treatment facility regulated under Sec.
402 or 307(b) of the CWA.
This means wastewater treatment tank systems that are currently
deferred in Sec. 280.10(c)(1) will no longer be deferred from the
requirements of 40 CFR part 280 subparts B (UST Systems: Design,
Construction, Installation and Notification), C (General Operating
Requirements), D (Release Detection), E (Release Reporting,
Investigation, and Confirmation), G (Out-of-Service UST Systems and
Closure), and H (Financial Responsibility). These wastewater treatment
tanks that are currently deferred in Sec. 280.10(c)(1) will be
referred to as “wastewater treatment tanks” in the discussion below.
Wastewater treatment tank systems installed on or before the
effective date of the final UST regulation must begin meeting the
requirements of subparts B (except Sec. 280.22), C, and D within three
years of the effective date of the final UST regulation and Sec.
280.22 of subpart B along with subparts E, G, and H on the effective
date of the final UST regulation. Wastewater treatment tank systems
installed after the effective date of the final UST regulation must
meet these requirements at the time of installation.
Release Detection
EPA is proposing wastewater treatment tank systems no longer be
deferred from release detection. This means wastewater treatment tank
systems must meet the release detection requirements in 40 CFR part
280, subpart D.
Release Prevention
EPA is proposing wastewater treatment tank systems meet corrosion
protection, spill, and overfill requirements. For corrosion protection,
EPA is proposing wastewater treatment tank systems meet one of these:
The new tank and piping standards described in Sec.
280.20; or
Wastewater treatment tank systems installed on or before
the effective date of the final UST regulation can be constructed of
metal and cathodically protected according to a code of practice
developed by a nationally recognized association or independent testing
laboratory and meet the following:
[cir] Field installed cathodic protection systems must be: Designed
by a corrosion expert; designed to allow for the determination of
current operating status for impressed current systems; and operated
and maintained in accordance with Sec. 280.31 or guidelines
established by the implementing agency; and
[cir] Tanks greater than 10 years old without cathodic protection
must be assessed to ensure they are structurally sound and free of
corrosion holes prior to adding cathodic protection. The assessment
must be by internal inspection or another method the implementing
agency determines adequately assesses the tank for structural soundness
and corrosion holes.
EPA is proposing wastewater treatment tank systems installed on or
before the effective date of the final UST regulation that are not
upgraded according to Sec. 280.21 within three years of the effective
date of the final UST regulation be permanently closed according to
Sec. 280.70. EPA is proposing internal lining not be allowed for
meeting the corrosion protection upgrade requirement.
Notification
EPA is proposing that, no later than 30 days after the effective
date of the final UST regulation, wastewater treatment tank system
owners notify appropriate implementing agencies that their systems
exist.
Financial Responsibility
EPA is proposing wastewater treatment tank systems no longer be
deferred. This means wastewater treatment tank systems that have not
been permanently closed will be subject to financial responsibility
requirements in subpart H.
[[Page 71736]]
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing to regulate wastewater treatment tank systems
(including oil-water separators) containing regulated substances in 40
CFR part 280 if they are not part of a wastewater treatment facility
regulated under Sec. 402 or 307(b) of the CWA. In the 1988 UST
regulation, EPA deferred these systems because we were uncertain about
how many of these UST systems exist and the appropriateness of some
release detection systems for these systems. EPA still is uncertain
about how many wastewater treatment tank systems exist. Removing the
deferral will allow us to determine how many are subject to 40 CFR part
280;. In addition, release detection methods are available to detect
releases from these systems. EPA is proposing to regulate these types
of UST systems to protect human health and the environment from
discharges of regulated substances contained in these systems. When
wastewater treatment tank systems are not part of a wastewater
treatment facility regulated under Sec. 402 or 307(b) of the CWA, they
must meet all requirements in 40 CFR part 280, including requirements
for design, construction, installation, and notification; general
operating; release detection; and closure.
To help determine the universe of wastewater treatment tank systems
we are proposing to regulate, EPA queried several field experts. They
were not aware of any wastewater treatment tank systems that are part
of a wastewater treatment facility not regulated under Sec. 402 or
307(b) of the CWA. Based on the experts’ information, all wastewater
treatment tanks, including those at most publicly-owned treatment works
and many private treatment facilities, are all part of a wastewater
treatment facility regulated by either Sec. 402 or Sec. 307(b) of the
CWA and, therefore, are excluded from 40 CFR part 280. As a result, it
appears there are no wastewater treatment tank systems currently
deferred. However, in the event such tanks exist, they present the same
risks as other UST systems currently regulated and need to meet the
requirements in 40 CFR part 280 in order to protect human health and
the environment.
EPA is proposing that wastewater treatment tank systems installed
on or before the effective date of the final UST regulation begin
meeting the requirements in 40 CFR 280 subparts B (except Sec.
280.22), C, and D within three years of the effective date of the final
UST regulation and Sec. 280.22 of subpart B along with subparts E, G,
and H on the effective date of the final UST regulation. This includes
requirements for design, construction, and installation (including
spill, overfill, and corrosion protection); release detection;
notification; operation and maintenance; recordkeeping; and closure. In
the 1988 UST regulation, deferred wastewater treatment tank systems
were required to meet the interim prohibition requirements of Sec.
280.11 (that is, corrosion protected, made of non-corrodible materials,
or otherwise designed and constructed to prevent releases during the
operating life of the facility due to corrosion or structural failure).
Therefore, wastewater treatment tank systems are already equipped with
corrosion protection. Wastewater treatment tank systems installed after
the effective date of the final UST regulation must meet all 40 CFR
part 280 requirements at installation. Three years allows owners and
operators enough time to implement the requirements of subparts B
(except Sec. 280.22), C, and D. EPA also is taking the position that
owners and operators can implement the requirements of Sec. 280.22 of
subpart B along with subparts E, G, and H beginning on the effective
date of the final UST regulation because upgrades or special equipment
are not needed to meet the requirements in these subparts.
As with airport hydrant systems and UST systems with field-
constructed tanks, EPA is proposing not to allow adding an internal
lining as a means of corrosion protection for wastewater treatment tank
systems that are not already upgraded. See section C-2 for an
explanation of why EPA is not allowing these USTs to be upgraded with
internal lining.
Wastewater treatment tank systems installed on or before the
effective date of the final UST regulation that do not meet the upgrade
requirements within three years after the effective date of the rule
must be permanently closed according to Sec. 280.70. EPA is requiring
permanent closure to prevent releases to the environment from
wastewater treatment tank systems that have not been upgraded.
Notification
EPA is proposing owners submit a one-time notification to
implementing agencies for wastewater treatment tank systems not
regulated by the CWA. Owners must notify within 30 days of the
effective date of the final regulation. EPA is proposing this to ensure
implementing agencies are aware these systems exist.
Financial Responsibility
Because wastewater treatment tank systems will no longer be
deferred, those systems not permanently closed will need to meet
financial responsibility requirements as described in 40 CFR part 280,
subpart H. Federal- and state-owned facilities are exempt from this
requirement. Therefore, federal and state owners and operators of
wastewater treatment tank systems will not have to meet this
requirement.
What issues related to this change does EPA request comment or
additional data on?
EPA is taking the position that there are no wastewater
treatment tank systems affected by this proposal. Are you aware of
systems that would be subject to this proposed change? If yes, please
provide information about the number and location of wastewater
treatment tank systems that would be regulated. For instance are there
units associated with natural gas drilling that are not regulated by
402 or 307(b)?
If there are wastewater tank systems, is it most
appropriate to regulate, exempt, or continue to defer these systems?
Please explain why.
Should EPA consider revising the date in 280.73 for
previously deferred UST systems? Revision of this date would mean that
these UST systems closed prior to the effective date of the final rule
would not have to meet Subpart G unless the implementing agency directs
otherwise based on a current or potential threat to human health and
the environment. How many of these UST systems have been closed since
December 22, 1988?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
5. Maintain Deferral for USTs Containing Radioactive Material and
Emergency Generator UST Systems at Nuclear Power Generation Facilities
Regulated by the Nuclear Regulatory Commission
EPA is not proposing changes to the 1988 UST regulation deferral in
Sec. 280.10(c)(2) and (3) for USTs containing radioactive material and
for emergency generator UST systems at nuclear power generation
facilities regulated by the Nuclear Regulatory Commission (NRC).
Currently, these types of UST systems are deferred from most UST
requirements but are subject to requirements for interim prohibition,
release response and corrective action, and where applicable, lender
liability (40 CFR part 280, subparts A, F, and I,
[[Page 71737]]
respectively). EPA has decided to keep the deferral in order to retain
EPA’s requirements for cleaning up releases from these USTs.
EPA compared Department of Energy (DOE) Orders \53\ and NRC
requirements to the 1988 UST regulation. This assessment revealed DOE
and NRC requirements are comparable to EPA requirements for new and
existing USTs regarding spill and overfill control (Sec. 280.30);
operation and maintenance of corrosion protection (Sec. 280.31);
compatibility (Sec. 280.32); and release detection (40 CFR part 280,
subpart D). However, there is no independent regulatory authority for
DOE and NRC to remediate releases. With that in mind, EPA is taking the
position that it is appropriate to maintain the deferral for these USTs
as it currently exists in order for EPA to continue requiring release
response and corrective action.
—————————————————————————
\53\ DOE Orders establish management objectives, identify
performance requirements and assign responsibilities consistent with
policy and regulations. See: https://www.directives.doe.gov/directives/types-of-directives.
—————————————————————————
D. Other Changes
1. Changes To Overfill Prevention Equipment Requirements
What is EPA proposing?
In Sec. 280.20, EPA is proposing to eliminate flow restrictors
(also called ball float valves) in vent lines as an overfill prevention
option either when an UST system is installed or when an UST system’s
overfill prevention equipment is replaced.
Owners and operators using a vent line flow restrictor before the
final UST regulation becomes effective may continue using a flow
restrictor to meet the overfill prevention requirements, as long as it
restricts the flow of regulated substances into the UST when the device
activates.
Owners and operators may continue to use flow restrictors not in
vent lines (such as flow restrictors in fill pipes), automatic shutoff
devices, and high level alarms as overfill prevention for all UST
systems.
Why is EPA proposing this change? What background information is
available about this change?
Spills and overfills are a common cause of UST system releases (see
sections B-2 and B-3 for additional discussion). Through extensive
stakeholder outreach, EPA identified vent line flow restrictors as a
significant concern for operability and safety. To reduce the frequency
of UST releases due to operability and to address system safety and
personnel safety concerns, EPA is proposing to eliminate vent line flow
restrictors for new installations and replacements.
Operability–For a vent line flow restrictor to operate
properly, the device must restrict the flow of regulated substance into
the UST when the flow restrictor engages. If the tank top is not liquid
or vapor tight, flow into the UST is not restricted because vapors
continue to escape through these non-tight areas. If vapors continue to
escape the UST, there is no pressure buildup in the vapor area of the
tank, resulting in no reduced flow rate into the UST. Examples where
non-tight tank tops may result in ineffective flow restrictors include:
Loose tank bungs or other tank top components; tanks with coaxial stage
I vapor recovery installed; and tanks with both tank top and remote
fill areas.
System safety–Vent line flow restrictors can create
safety concerns when they activate. USTs can become over pressurized
and damaged during a pressurized delivery. The 2005 version of the
Petroleum Equipment Institute’s installation standard, RP100,
recommends against using vent restriction devices because the vent line
flow restrictor pressurizes the UST, creating a hazardous condition
when the device operates as designed.
Personnel safety–Delivery personnel can be sprayed with
regulated substances when they disconnect the delivery hose from the
fill pipe and the vent line flow restrictor activates.
What issues related to this change does EPA request comment or
additional data on?
EPA considered eliminating or phasing out vent line flow
restrictors for currently installed UST systems, but finds the cost
burden for owners and operators could be high. Please provide input and
information in support of or against eliminating or phasing out vent
line flow restrictors.
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
2. Internal Linings That Fail the Periodic Lining Inspection and Cannot
Be Repaired
What is EPA proposing?
In Sec. 280.21, EPA is proposing owners and operators permanently
close an UST that uses internal lining as the sole method of corrosion
protection when both of these conditions exist:
A lining inspection determines the internal lining is no
longer performing according to original design specifications; and
The internal lining cannot be repaired according to a code
of practice developed by a nationally recognized association or
independent testing laboratory.
For tanks with both internal lining and cathodic protection, EPA is
proposing to allow owners and operators continue operating an UST if it
fails the lining inspection and cannot be repaired if both of these
criteria are met:
The cathodic protection is operated and maintained
according to Sec. 280.31; and
The tank was assessed and found to be structurally sound
and free of corrosion holes when the cathodic protection was added to
the tank.
Why is EPA proposing this change? What background information is
available about this change?
About 3 percent of tanks today rely on internal lining as the sole
method of corrosion protection to meet the 1988 UST regulation.\54\
Tanks that are internally lined to meet the 1988 UST regulation
corrosion protection requirement at Sec. 280.21 are typically older,
bare steel tanks installed before 1986. The 1988 UST regulation
preamble says that internal lining, when used as the sole method for
corrosion protection, is not regarded as a permanent upgrade. However,
it is adequate if the lining continues to meet original design
specifications. If the internal lining no longer meets original design
specifications and cannot be repaired according to industry codes, then
the lined tank is subject to unprotected tank requirements and must be
replaced after 1998. However, the language from the 1988 preamble was
not included in Sec. 280.21(b)(1).
—————————————————————————
\54\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
EPA is proposing to revise the internal lining requirements to
match EPA’s intent of replacing internally lined tanks that fail a
lining inspection and cannot be repaired according to a code of
practice. EPA is proposing that a lined tank must be permanently closed
if, when inspected, it cannot be repaired according to a code of
practice.
Owners and operators may continue using internal lining to meet the
corrosion protection requirement, as long as:
[[Page 71738]]
The internal lining is periodically inspected according to
Sec. 280.21(b)(1)(ii); and
The internal lining passes the inspection or is repaired
so it meets original design specifications according to a code of
practice developed by a nationally recognized association or
independent testing laboratory.
Consistent with current EPA policy,\55\ tanks using the combination
of cathodic protection and internal lining for corrosion protection are
not required to be closed if the internal lining fails and cannot be
repaired as long as:
—————————————————————————
\55\ EPA UST Technical Compendium Question and Answer
14: http://epa.gov/oust/compend/nus.htm.
—————————————————————————
The cathodic protection is operated and maintained
according to Sec. 280.31; and
The tank was assessed and found to be structurally sound
and free of corrosion holes when the cathodic protection was added to
the tank.
What issues related to this change does EPA request comment or
additional data on?
Should EPA consider requiring lined tanks be closed when
they fail a lining inspection independent of whether the lining can be
repaired? If yes, please provide information to support your answer.
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
3. Notification Requirements
What is EPA proposing?
EPA is proposing these notification requirement changes in Sec.
280.22:
Notify implementing agencies within 30 days of assuming
ownership of an UST system. A new owner is required to submit a form
which provides the new owner’s name, mailing address, physical location
of USTs, and name of previous owner;
Require owners who bring new UST systems into service
notify implementing agencies of USTs, rather than state or local
agencies designated by EPA;
Merge the paragraph about minimum information with the
paragraph explaining what forms to use for notification and delete the
minimum information paragraph;
Require owners of deferred UST systems EPA is proposing to
require a one-time notification to implementing agencies within 30 days
of the effective date of the final UST regulation.
EPA is proposing changes to the “Notification For Underground
Storage Tanks” form in Appendix I.
EPA is proposing changes to the form as a result of today’s
proposal, and to change “State” to “Implementing Agency” throughout
the form.
EPA is proposing a new form titled “Notification of Ownership
Change for Underground Storage Tanks” under Appendix II.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing the new ownership change notification to more
effectively administer the UST program. EPA required a one-time
notification of regulated USTs by May 8, 1986,\56\ and owners who
purchased newly installed UST systems completed and submitted
notification forms to implementing agencies. However, EPA did not
require people notify implementing agencies when acquiring a regulated
UST, such as when purchasing an existing service station.
—————————————————————————
\56\ Solid Waste Disposal Act Sec. 9002(a)(1).
—————————————————————————
Without a requirement to notify when persons assume ownership of
UST systems, implementing agencies have difficulty administering the
UST program. Persons can assume ownership through purchase,
inheritance, acquisition of property, or other means. EPA estimates on
average 10 percent of retail UST facilities change ownership in a given
year.\57\ Any communication or outreach is impaired if implementing
agencies do not know the correct owners of a large proportion of
regulated USTs. When final, this change will ensure implementing
agencies know the current ownership of regulated UST systems.
—————————————————————————
\57\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
At least 48 of 56 states and territories realized this need and
instituted some form of ownership change notification. EPA is following
the example of these states and will require an ownership change
notification to more effectively administer the UST program.
EPA is proposing to include a form in Appendix II titled
“Notification of Ownership Change for Underground Storage Tanks.” The
new form specifies the information persons need to submit to the
implementing agency after they become owners of underground storage
tanks. EPA is proposing these owners provide their name, address, phone
number, name of the facility, location of USTs, as well as the name,
address, and phone number of the previous owner.
EPA is also proposing owners who bring UST systems into service
notify implementing agencies, rather than state and local agencies
identified by EPA. This change is needed for two reasons. First, an
unintended result of the existing requirement is owners in Indian
country submitted notification forms to state or local agencies, not to
EPA, even though EPA is the implementing agency in Indian country. When
final, this change will greatly assist EPA in implementing the UST
program in these areas. Second, many of the agency names and addresses
EPA identified in 1988 are no longer accurate. When final, this change
will provide owners with clarity about where to send notification forms
and better accommodate changes of implementing agencies.
EPA is proposing to merge the paragraphs discussing the minimum
information owners and operators need to submit and the form to be
submitted to implementing agencies. This will reduce redundancy and
ease understanding of this requirement. As a result, a separate
paragraph explaining what minimum information to submit for
notification will be unnecessary.
EPA is proposing owners of previously deferred UST systems notify
implementing agencies within 30 days of the effective date of the final
UST regulation. EPA is proposing this one-time notification because
owners of previously deferred UST systems brought into service after
May 8, 1986 were not required to notify implementing agencies. Because
EPA is proposing to regulate previously deferred UST systems and to
ensure they meet requirements of the final UST regulation, it is
imperative implementing agencies receive notice about these UST
systems.
Due to EPA’s proposed changes to the UST regulation, we are
proposing changes to the notification form under Appendix I. This will
make the form request appropriate information according to today’s
proposal. For instance, the release detection section of the 1988 UST
regulation form did not include statistical inventory reconciliation or
bulk tightness testing. The proposed form includes these methods.
What issues related to this change does EPA request comment or
additional data on?
Is a one-time notification for all UST owners also
necessary to effectively administer the UST program in jurisdictions
(eight states and
[[Page 71739]]
territories and Indian country) where implementing agencies do not
currently require ownership change notification? EPA is posing this
question because of the high rate of UST ownership changes and
resulting likelihood implementing agencies do not know who owns
numerous UST systems.
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
4. Alternative Fuels And Compatibility
What is EPA proposing?
EPA is proposing changes to two definitions in Sec. 280.12 of the
1988 UST regulation.
Regulated substance–delete “* * * derived from crude oil
though \58\ [sic] processes of separation, conversion, upgrading, and
finishing * * *”
—————————————————————————
\58\ This is an error in 40 CFR 280; “though” should be
“through.”
—————————————————————————
Motor fuel–include explanatory language that a petroleum
or petroleum-based substance is typically used to operate a motor
engine and provide example products (motor gasoline, aviation gasoline,
No. 1 or No. 2 diesel fuel, or any blend containing one or more of
these substances, such as motor gasoline blended with alcohol) meeting
the definition.
In addition, EPA is proposing changes to the compatibility
requirement in Sec. 280.32 of the 1988 UST regulation. These changes
explain how owners and operators storing certain regulated substances
must demonstrate that their UST systems are compatible with substances
stored. Specifically, EPA is proposing:
Owners and operators storing any regulated substance
blended with greater than 10 percent ethanol or greater than 20 percent
biodiesel, or any other regulated substance identified by the
implementing agency, must use one or more of the following methods to
demonstrate UST system compatibility with these regulated substances:
[cir] Certification or listing of UST system components by a
nationally recognized, independent testing laboratory for use with the
fuel stored;
[cir] Equipment or component manufacturer approval. The
manufacturer’s approval must be in writing; indicate an affirmative
statement of compatibility; specify the range of ethanol or biodiesel
blends the component is compatible with; and be from the equipment or
component manufacturer; or
[cir] Another method determined by the implementing agency to be no
less protective of human health and the environment than the previously
listed methods.
Owners and operators must maintain the following records
(according to Sec. 280.34) for the life of the equipment or component:
[cir] Documentation of compliance with the above section as
applicable; and
[cir] Records of all equipment or components installed or replaced
after the effective date of the final UST regulation. At a minimum,
each record must include the date of installation or replacement,
manufacturer, and model.
EPA is also proposing to delete these codes of practice.
American Petroleum Institute Publication 1626, “Storing
and Handling Ethanol and Gasoline-Ethanol Blends at Distribution
Terminals and Service Stations”
American Petroleum Institute Publication 1627, “Storage
and Handling of Gasoline-Methanol/Cosolvent Blends at Distribution
Terminals and Service Stations”
Why is EPA proposing this change? What background information is
available about this change?
Regulated Substance and Motor Fuel Definitions
EPA is proposing a change in the regulated substance definition to
clarify that petroleum does not need to be derived from crude oil in
order to be regulated when stored in USTs. The preamble to the
supplement to the proposal for the original UST regulation indicates
that petroleum products can be derived from other materials, such as
biomass, plant material, organic waste, coal, and shale oil.\59\
Petroleum is comprised of a complex blend of hydrocarbons regardless of
its source material; therefore, all petroleum poses risks to human
health and the environment.
—————————————————————————
\59\ “40 CFR Parts 280 and 281 USTs; Supplement to Proposed
Rule,” 52 Federal Register 246 (23 December 1987), pg. 48640.
—————————————————————————
Many people interpreted the 1988 UST regulation definition of
regulated substance as applying to petroleum USTs only if the petroleum
was derived from crude oil. Over time, this misinterpretation may
become more problematic as the amount of petroleum derived from non-
crude oil based products, such as natural gasoline, increases as a
result of requirements in the Energy Independence and Security Act of
2007. Today’s regulated substance clarification will eliminate
uncertainty about the regulatory status of tanks storing petroleum
products derived from sources other than crude oil.
EPA is proposing a change in the motor fuel definition to better
accommodate new motor fuels that may be marketed and stored in the
future. The 1988 UST regulation definition listed motor fuel products,
leading to confusion as to whether new fuels, such as petroleum blended
with ethanol or biodiesel, are motor fuels. Today’s proposal clarifies
the motor fuel definition to explain that it is any fuel typically used
to operate a motor engine.
Compatibility
EPA understands that the chemical and physical properties of
ethanol and biodiesel can be more degrading to certain UST system
materials than petroleum alone. As the use of ethanol- and biodiesel-
blended fuels increases, EPA is concerned that not all UST system
components are compatible with these fuel blends.
Gasoline containing 10 percent or less ethanol (known as E10) has
been used in parts of the United States for many years, and UST
equipment manufacturers accommodated the E10 market by producing
compatible equipment. According to the Renewable Fuels Association,
ethanol is blended into over 90 percent of all gasoline sold in the
country,\60\ predominantly as E10. Recently, there has been a movement
toward higher blends of ethanol, due in part to federal and state laws
encouraging the increased use of biofuels. While most UST system
equipment and components are compatible with E10, blends greater than
10 percent ethanol do not have a long history of storage and may not be
compatible with certain materials used in UST systems. According to a
2011 report published by U.S. Department of Energy’s Oak Ridge National
Laboratory,\61\ some elastomeric materials are particularly affected by
intermediate ethanol blends and certain sealants may not be suitable
for any ethanol-blended fuels. A 2007 report from Underwriters
Laboratories (UL) \62\
[[Page 71740]]
evaluated the effect of 85 percent ethanol and 25 percent ethanol
blends on dispenser components. Results indicated some materials used
in the manufacture of seals were degraded more when exposed to the 25
percent ethanol test fluid than when exposed to the 85 percent ethanol
test fluid. Other literature suggests ethanol fuel blends can be more
aggressive toward certain materials than independent fuel constituents,
with maximum polymer swelling observed at approximately 15 percent
ethanol by volume.\63\ Therefore, EPA is clarifying the compatibility
requirements for owners and operators who choose to store regulated
substances containing greater than 10 percent ethanol.
—————————————————————————
\60\ Renewable Fuels Association, “Building Bridges to a More
Sustainable Future: 2011 Ethanol Industry Outlook.” http://www.ethanolrfa.org/page/-/2011%20RFA%20Ethanol%20Industry%20Outlook.pdf?nocdn=1.
\61\ Oak Ridge National Laboratory, “Intermediate Ethanol
Blends Infrastructure Materials Compatibility Study: Elastomers,
Metals, and Sealants” (March 2011).
\62\ Underwriters Laboratories, Inc., “Underwriters
Laboratories Research Program on Material Compatibility and Test
Protocols for E85 Dispensing Equipment” (December 2007). Available
in the UST Docket under Docket ID No. EPA-HQ-UST-2010-0651.
\63\ Westbrook, P.A., “Compatibility and Permeability of
Oxygenated Fuels to Materials in Underground Storage and Dispensing
Equipment” (January 1999). Available in the UST Docket under Docket
ID No. EPA-HQ-UST-2010-0651.
—————————————————————————
EPA is also clarifying the compatibility requirements for owners
and operators who choose to store regulated substances containing
greater than 20 percent biodiesel. Although the total use of biodiesel
is significantly less than that of ethanol, it has become increasingly
available across the United States and may also be incompatible with
certain materials used in UST systems. Pure biodiesel (B100), for
example, has known compatibility issues with certain materials.
According to the U.S. Department of Energy’s National Renewable Energy
Laboratory (NREL) Biodiesel Handling and Use Guide, Fourth Edition,\64\
“B100 will degrade, soften, or seep through some hoses, gaskets,
seals, elastomers, glues, and plastics with prolonged exposure * * *
Nitrile rubber compounds, polypropylene, polyvinyl, and Tygon[supreg]
materials are particularly vulnerable to B100.”
—————————————————————————
\64\ National Renewable Energy Laboratory, “Biodiesel Handling
and Use Guide, Fourth Edition.” (2009). Available in the UST Docket
under Docket ID No. EPA-HQ-UST-2010-0651.
—————————————————————————
In contrast, the properties of very low blends of biodiesel (B5 or
less) are so similar to those of petroleum diesel that ASTM
International (ASTM) considers conventional diesel that contains up to
5 percent biodiesel to meet its “Standard Specification for Diesel
Fuel Oils” \65\. For biodiesel blends between 5 and 100 percent, there
is very little compatibility information; however, NREL’s handling and
use guide concludes that biodiesel blends of B20 or less have less of
an effect on materials and very low blends of biodiesel (for example,
B5 and B2) “ * * * have no noticeable effect on materials
compatibility.” \66\ In addition, fleet service sites have stored B20
in USTs for years, and EPA is not aware of compatibility-related
releases associated with those USTs storing B20. Therefore, EPA is
proposing to require tank owners and operators who store greater than
20 percent biodiesel in their UST systems demonstrate compatibility of
UST equipment by one of the methods proposed in Sec. 280.32.
—————————————————————————
\65\ ASTM Standard D975, 2010c “Standard Specification for
Diesel Fuel Oils,” ASTM International, West Conshohocken, PA, 2010,
DOI: 10.1520/D0975-10C, http://www.astm.org.
\66\ National Renewable Energy Laboratory, “Biodiesel Handling
and Use Guide, Fourth Edition.” (2009). Available in the UST Docket
under Docket ID No. EPA-HQ-UST-2010-0651.
—————————————————————————
To avoid risk of increased releases due to incompatibility of
ethanol or biodiesel blends with UST system components, EPA is
proposing several options for owners and operators to demonstrate that
their UST systems are compatible with regulated substances containing
greater than 10 percent ethanol or greater than 20 percent biodiesel.
These options provide owners and operators with flexibility in
demonstrating compatibility, yet still protect human health and the
environment. In the past, tank owners typically demonstrated
compatibility by using equipment certified or listed by a nationally
recognized, independent testing laboratory, such as Underwriters
Laboratories (UL). Many UST components in the ground today were
manufactured before regulated substances containing ethanol or
biodiesel existed and are not approved by nationally recognized,
independent testing laboratories for use with these fuel blends.
Currently, certain tanks and piping have been tested and are listed by
UL for use with higher-level ethanol blends. Many other components of
the UST system, such as leak detection devices, sealants, and
containment sumps, may not be listed by UL or another nationally
recognized, independent testing laboratory for use with these blends.
In addition, EPA is not aware of any nationally recognized,
independent testing laboratory that has performed testing on UST system
components with biodiesel-blended fuels. Absent certification or
listing from a nationally recognized, independent testing laboratory,
or other verification that components may be used with anything beyond
conventional fuels, the suitability of these components for use with
ethanol or biodiesel blends comes into question. As a result, EPA is
providing options for demonstrating compatibility to reduce the risk of
releases due to material incompatibility. Owners and operators choosing
to store regulated substances blended with greater than 10 percent
ethanol or greater than 20 percent biodiesel must demonstrate
compatibility of the UST system before storing those regulated
substances.
EPA is proposing owners and operators use one of these two methods
for demonstrating compatibility of UST equipment or components with
regulated substances containing greater than 10 percent ethanol or
greater than 20 percent biodiesel: using equipment or components that
are certified or listed by a nationally recognized, independent testing
laboratory for use with the fuel stored; or using equipment or
components approved by the manufacturer to be compatible with the fuel
stored. In addition, implementing agencies will have the flexibility to
evaluate and allow other methods, if they are no less protective of
human health and the environment than those EPA is proposing today.
For those components tested and approved by a nationally
recognized, independent testing laboratory, owners and operators will
be able to demonstrate compatibility solely by keeping records of these
components. In this instance, the testing laboratory’s listing,
labeling, or approval demonstrates the equipment or component’s
suitability to be used with the regulated substance stored, which means
owners and operators will be able to demonstrate compatibility by
retaining equipment or component records.
Owners and operators will also be able to demonstrate compatibility
by obtaining manufacturer’s approval of components’ compatibility with
the regulated substance to be stored. The manufacturer’s approval must
be in writing and include an affirmative statement that the component
is compatible with the fuel blend stored. To add clarity for tank
owners and operators, the manufacturer’s approval must also specify the
range of fuel blends for which the component is compatible. Finally,
the manufacturer’s approval must be issued from the equipment or
component manufacturer, not another entity (such as the installer or
distributor). A manufacturer’s approval will enable owners and
operators to demonstrate compatibility for components not approved for
use by a nationally recognized, independent testing laboratory. It will
also provide confidence for implementing agencies that the component is
compatible with the fuel stored.
EPA is proposing an additional option which would allow
implementing
[[Page 71741]]
agencies to approve other methods for demonstrating compatibility with
regulated substances containing greater than 10 percent ethanol or
greater than 20 percent biodiesel. Implementing agencies will be able
to approve methods they consider no less protective of human health and
the environment in addition to the manufacturer’s approval or the
listing, labeling, or approval by a nationally recognized, independent
testing laboratory. This will provide owners and operators with
additional flexibility when new methods to determine UST system
component compatibility are developed.
Although these methods for demonstrating compatibility will apply
to UST systems storing regulated substances containing greater than 10
percent ethanol and greater than 20 percent biodiesel, EPA is proposing
to extend the methods to other regulated substances identified by
implementing agencies. This will provide implementing agencies with
flexibility when new regulated substances (for example, biobutanol)
enter the fuel market and allow implementing agencies to apply these
methods for determining UST system compatibility to other regulated
substances.
EPA is proposing owners and operators maintain records for the life
of UST systems, if the UST system stores regulated substances
containing greater than 10 percent ethanol or greater than 20 percent
biodiesel or another regulated substance identified by implementing
agencies. Owners and operators will be required to retain equipment or
component records in order to demonstrate their systems are compatible
with these regulated substances. Without records of the equipment or
components, owners and operators will not be allowed to store regulated
substances containing greater than 10 percent ethanol or greater than
20 percent biodiesel in their UST systems.
To demonstrate compatibility with regulated substances stored in
UST systems, owners and operators of new and replaced equipment or
components must retain records for the life of the equipment or
component. This will ensure new and replaced equipment and components
are compatible with the regulated substances stored. As equipment or
components are replaced, records will be available for all UST system
equipment or components, making it easier for owners and operators to
demonstrate compatibility with new regulated substances.
Owners and operators must demonstrate compatibility for the
following UST system equipment or components: Tank or internal tank
lining; piping; line leak detector; flexible connectors; drop tube;
spill and overfill prevention equipment and components; submersible
turbine pump equipment and components; sealants (including pipe dope
and thread sealant); fittings; gaskets; bushings; couplings; boots;
containment sumps (including submersible turbine sumps and under
dispenser containment); release detection floats, sensors, and probes;
fill and riser caps; and the product shear valve. These equipment or
components are a subset of an UST system, as defined by Sec. 280.12,
which, if incompatible, would lead to a liquid release to the
environment.
EPA is clarifying that the requirements in this section also apply
to both newly installed equipment or components and equipment where one
or more components are replaced. For newly installed equipment
comprised of multiple individual, smaller components and assembled by
the manufacturer, some manufacturers provide a compatibility
certification for the equipment as a whole. For example, a manufacturer
may certify the entire submersible turbine pump as being compatible.
The submersible turbine pump certification would include all components
(gaskets, sealants, bushings, etc.) of the equipment assembled by the
manufacturer. Therefore, an owner may obtain one certification for
newly installed manufacturer-assembled equipment, as long as the
manufacturer certifies the entire piece of equipment as compatible.
However, over the lifetime of a typical UST system, equipment is likely
to require maintenance, which may involve replacing components such as
gaskets, sealants, and bushings. It is important for tank owners to use
compatible replacement components, especially since these components
are sometimes constructed of materials that are not compatible with
biofuel blends. Therefore, components (such as gaskets, sealants,
bushings, etc.) replaced after the equipment was originally installed
will not be covered by the original manufacturer’s approval. Owners and
operators will need to obtain manufacturer’s certification indicating
the replaced component is compatible with the regulated substance
stored in the UST system.
These proposed changes will protect human health and the
environment from potential additional releases as a result of
incompatible UST systems. Also, the changes are not overly burdensome,
nor do they require costly retrofits. These changes will give owners
and operators flexibility, yet provide EPA with confidence that UST
systems will be compatible with new fuel blends when owners and
operators use one or more of the proposed methods to determine
compatibility. The additional language also provides owners and
operators with certainty on what is acceptable in demonstrating UST
system compatibility with the substances stored.
EPA is also proposing to delete two codes of practice listed in the
1988 UST regulation. EPA included codes of practice to help owners and
operators demonstrate compliance with the compatibility requirement.
EPA is now proposing methods for determining compatibility, so
referencing codes of practice is unnecessary.
In August 2010, American Petroleum Institute (API) published an
updated version of API Recommended Practice 1626. Today’s proposal
incorporates several methods API recommends owners and operators
storing blends of greater than 10 percent ethanol use to demonstrate
UST system compatibility. If owners and operators follow API
Recommended Practice 1626, Section 7 requirements, for regulated
substances blended with ethanol, they will meet today’s proposed Sec.
280.32(b) changes.
What issues related to this change does EPA request comment or
additional data on?
How many UST systems currently store petroleum not derived
from crude oil (such as natural gasoline)?
Should EPA consider allowing professional engineers to
make compatibility determinations?
Are there additional methods for effectively demonstrating
compatibility? If yes, please provide details.
Are there other alternatives to demonstrating
compatibility (such as using secondarily contained USTs) that tank
owners and operators should be allowed to use, that are no less
protective of human health and the environment?
Are the proposed criteria for manufacturer’s approval
reasonable?
Should EPA consider tiering methods? For example, if an
approval or listing from a nationally recognized, independent third
party is available, then the manufacturer approval is not an option for
that component?
Should EPA waive the compatibility requirement for UST
systems with secondary containment and interstitial monitoring? Why or
why not?
While this proposal requires owners and operators maintain
records to demonstrate compatibility, we are not requiring owners and
operators transfer
[[Page 71742]]
records to new owners and operators. Should EPA consider requiring
records transfer?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
5. Improving Repairs
What is EPA proposing?
EPA is proposing to revise the definition of repair in Sec. 280.12
to:
Clarify that all UST system components, including piping,
spill prevention equipment, overfill prevention equipment, corrosion
protection equipment, and release detection equipment are included
under the repairs allowed section of the regulation, and
Remove the link that repairs are only associated with a
release from an UST system by adding to the definition suspected
release and equipment that has failed to function properly.
For repairs to secondary containment areas of UST systems, overfill
prevention equipment, and spill prevention equipment, EPA is proposing
to add tests after a repair to the repairs allowed section (Sec.
280.33). The tests after repair requirements for these areas are the
same as those for periodic spill and overfill tests discussed in
sections B-2 and B-3. The tests for interstitial areas after a repair
and periodic interstitial integrity (in section B-4) are the same,
except tanks with continuous interstitial sensors must perform a
vacuum, pressure, or liquid test following the repair. These tests must
be conducted within 30 days of a repair.
Why is EPA proposing this change? What background information is
available about this change?
Clarification of UST system components in the definition of
repair–EPA is proposing to add the following UST system components to
the definition of repair: Piping; spill prevention equipment; overfill
prevention equipment; corrosion protection equipment; and release
detection equipment. By adding these UST system components, EPA is
making it clear that these specific components are subject to the
repairs allowed section of the regulation. This means owners and
operators performing repairs on these UST system components must follow
the repairs allowed section (Sec. 280.33). The 1988 UST regulation
definition of repair uses the generic term UST system component and
provides less detail about what an UST system component is.
Including repairs not associated with a confirmed release or
suspected release from the UST system–It is common practice for owners
and operators to fix UST components that have not caused a release or
suspected release of product from the UST system. However, the repair
definition in the 1988 UST regulation does not consider these non-
release fixes as repairs. EPA is proposing to modify the repair
definition to include the concept of repairing equipment that failed to
function properly, delinking a repair with a release from the UST
system. This proposed change will ensure repair activities not
associated with a release are conducted properly. For example, under
the 1988 UST regulation, fixing a cathodic protection system would not
be considered a repair because the UST component likely has not yet
caused a release of product from the UST system. In addition, EPA is
proposing to include a suspected release as part of the definition, so
repairs associated with suspected releases are covered under the repair
definition.
By removing the link between repair and release, EPA is proposing
owners and operators meet the repairs allowed section (Sec. 280.33)
when fixing UST system components that have not caused a release of
product from the UST system. This means owners and operators will need
to have repairs performed in accordance with a code of practice
developed by a nationally recognized association or independent testing
laboratory and test the equipment after the repair is completed.
Tests after repairs–To ensure equipment is operating as intended
after a repair, EPA is proposing to require tests within 30 days of
repairing spill, overfill, and secondary containment equipment. Except
for interstitial integrity tests in USTs with continuous interstitial
sensors, the tests after repairs proposal uses periodic tests described
in sections B-2, B-3, and B-4. For USTs with continuous interstitial
sensors, owners and operators must conduct vacuum, pressure, or liquid
tests to ensure the secondary containment area is operating as
intended. EPA is proposing to require tests because sensors alone
cannot immediately determine whether repairs were completed properly.
Vacuum, pressure, and liquid tests will be able to ensure the adequacy
of the repair by evaluating the interstitial area. Tests after repairs
will only apply to those UST components being repaired and not to all
components at the UST site.
EPA is proposing that tests of spill, overfill, and interstitial
areas after a repair occur within 30 days of the repair. EPA chose 30
days to be consistent with the time frame for the tightness testing
requirement after repairing tanks and piping in Sec. 280.33.
What issues related to this change does EPA request comment or
additional data on?
Should EPA consider changing the time frame for conducting
an interstitial, spill, or overfill test from 30 days to before
returning the UST system to service?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
6. Phase Out Vapor Monitoring and Groundwater Monitoring as Release
Detection Methods
What is EPA proposing?
EPA is proposing to phase out vapor monitoring and groundwater
monitoring as methods of release detection for tanks and piping in
Sec. 280.43.
Owners and operators of UST systems installed before the effective
date of the final UST regulation will have five years to comply with
another release detection monitoring method in 40 CFR 280, subpart D.
Why is EPA proposing this change? What background information is
available about this change?
Although EPA is proposing new and replaced tanks and piping use
interstitial monitoring (see section A-2), UST systems installed before
the effective date of the final UST regulation may continue to use
internal or interstitial release detection methods listed in subpart D
of the 1988 UST regulation. Automatic tank gauging and statistical
inventory reconciliation are internal monitoring methods and are
characterized by activities within the tank or piping to monitor any
discrepancies. Groundwater monitoring and vapor monitoring are external
monitoring methods and are characterized by monitoring external areas
(specifically groundwater or soil-vapor) that surround an UST system.
An interstitial method monitors the space between tank or piping walls
and detects a release before it reaches the environment.
EPA is proposing to phase out the two external release detection
methods–vapor monitoring and groundwater monitoring–because these
methods detect releases well after they enter the environment. In
addition, there are inherent problems with installing and confirming
proper use of these methods. As methods of release detection, they
[[Page 71743]]
are less protective of the environment than others. Regulators
inspecting UST systems report common problems they encounter when
inspecting UST systems using vapor or groundwater monitoring methods,
such as an insufficient number of wells or wells improperly located to
sufficiently monitor for potential releases.
Vapor monitoring problems pertain to confirming whether certain
site conditions exist. In particular, surrounding soil should be
sufficiently porous to readily allow diffusion into the excavation
area; the ability to measure vapors should not be affected by
groundwater, rainfall, or soil moisture; and background contamination
should not interfere with monitoring methods.
A commonly encountered groundwater monitoring problem is that
groundwater, at times, can be more than 20 feet from the ground
surface, due to seasonal water table variations. According to the 1988
UST regulation, groundwater must never be more than 20 feet from the
ground surface and well slotting must be designed to allow entry of
regulated substances on the water table into the well under both high
and low groundwater conditions. Unfortunately, many wells are not
installed appropriately resulting in the depth of groundwater
requirement not being met.
Many UST facilities do not have site assessments that confirm
whether site conditions support use of vapor monitoring and groundwater
monitoring release detection. In instances when site assessments are
available, they are often not thorough enough to verify whether
regulatory requirements are met. Without site assessments, regulators
are unable to determine whether site conditions are met. Reassessing
sites to verify if site conditions support use of vapor monitoring or
groundwater monitoring is intrusive and costly. Some UST facilities
switch between vapor monitoring and groundwater monitoring, depending
on seasonal variations. This practice further complicates using these
methods, such as whether groundwater rendered the vapor monitoring
inoperable or whether the wells are designed for both methods. Even if
optimal operating conditions are met in both of these external methods,
by the time a release is detected, contamination has already
significantly impacted the environment.
In contrast, internal release detection methods have an advantage
over external monitoring methods. Internal methods provide an early
warning to owners and operators because they indicate unusual operating
conditions, such as water in the tank or incremental loss of product.
An early warning alerts owners and operators to take action and
minimize releases to the environment.
EPA estimates approximately 5 percent of all active UST systems are
using vapor monitoring or groundwater monitoring to comply with release
monitoring requirements.\67\ Because of the time it may take for owners
and operators to convert to another method of release detection, five
years will allow sufficient time for UST system owners and operators to
begin using another method of release detection.
—————————————————————————
\67\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
What issues related to this change does EPA request comment or
additional data on?
Is five years for owners and operators using vapor
monitoring and groundwater monitoring to switch to another method too
short, too long, or an appropriate length?
Are there circumstances at existing facilities that would
warrant a subset of UST systems to use vapor monitoring or groundwater
monitoring beyond the proposed period of five years. If so, what are
the circumstances?
Is EPA’s assumption of 5 percent accurate for the number
of active UST systems using vapor monitoring or groundwater monitoring
to comply with release detection requirements?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
7. Interstitial Monitoring Results, Including Interstitial Alarms,
Under Subpart E
What is EPA proposing?
EPA is proposing clarifications of UST owners’ and operators’
responsibilities regarding interstitial monitoring results, including
alarms, under 40 CFR part 280, subpart E. Specifically, EPA is
proposing these changes:
Section 280.50(b)–add interstitial spaces of secondarily
contained UST systems and provide examples of unusual operating
conditions.
Section 280.50(c)–clarify that an alarm during release
detection monitoring is subject to the reporting requirement.
Section 280.52(a)–require owners and operators of UST
systems with secondary containment using interstitial monitoring follow
integrity test requirements (proposed in section B-4) to confirm a
suspected release, and clarify actions UST owners and operators must
take if a test confirms a leak or indicates a release exists.
Why is EPA proposing this change? What background information is
available about this change?
The 1988 UST regulation adequately covers interstitial monitoring.
Nonetheless, EPA is proposing these changes to reinforce that a leak
into an interstitial space of a secondarily contained UST system is
also a potential threat to the environment and must be investigated,
addressed, and as necessary, reported.
In section A-2, EPA is proposing interstitial monitoring for all
new or replaced tanks and piping. As new systems are installed,
interstitial monitoring will become more widely used as a method of
release detection. With this in mind, EPA wants UST owners and
operators to clearly understand how interstitial monitoring results,
including interstitial alarms (and alarms associated with other types
of release detection monitoring if interstitial monitoring is not
used), must be handled.
In the 1988 UST regulation, EPA intended that product or water in
the interstice, and alarms signifying the presence of those conditions,
are unusual operating conditions and must be investigated
appropriately. However, EPA did not indicate how UST owners and
operators were to address discrepancies with interstitial spaces. As a
result, some UST owners and operators were uncertain about how best to
respond to interstitial monitoring results and alarms associated with
interstitial monitoring that indicate a release may have occurred. This
section provides specific information to alleviate uncertainty for
owners and operators.
Add interstitial spaces of secondarily contained UST
systems and provide examples of unusual operating conditions
[cir] Two unusual operating condition examples–water in the
interstitial space (presumably from a breach in the secondary wall) and
product in the interstitial space (presumably from a breach in the
primary wall)–are important along with other suspected release
conditions listed in the 1988 UST regulation. Water or product in the
interstitial space indicates there is a problem with the UST system
that needs to be resolved. As a result, EPA is specifying these
conditions as unusual operating conditions and will
[[Page 71744]]
require UST owners and operators investigate and address them.
Clarify that an alarm during release detection monitoring,
which indicates a potential release or compromise of the interstitial
space, is subject to the reporting requirement
[cir] UST owners and operators must appropriately address release
detection monitoring alarms. For example, continuously monitored
systems will trigger an alarm indicating a potential release or that
the interstitial space has been compromised. UST owners and operators
must appropriately address all alarms in the same manner. EPA is adding
interstitial monitoring in subpart E to emphasize its importance
because the proposed secondary containment requirement for new and
replaced system discussed in section A-2 will increase the use of
interstitial monitoring. UST owners and operators will not be required
to report alarms from defective equipment or false alarms as suspected
releases. Also, UST owners and operators will not have to report leaks
that are contained in the interstitial space, but they must investigate
and repair the problems. However, as required in Sec. 280.43(g),
groundwater, soil moisture, or rainfall must not render the testing or
sampling method inoperative so that a release could go undetected for
more than 30 days. Finally, regulated substance in the interstitial
space poses safety concerns and can also affect testing and sampling
methods. For safety reasons, owners and operators must ensure the
method of interstitial monitoring continues to operate and should
always remove any regulated substance from the interstitial area.
Require owners and operators of UST systems with secondary
containment using interstitial monitoring follow integrity test
requirements (proposed in section B-4) to confirm a suspected release
and clarify actions UST owners and operators must take if a test
confirms a leak or indicates a release exists
[cir] Requiring UST owners and operators to follow integrity test
requirements of the interstitial area will ensure both inner and outer
walls are checked when investigating a suspected release. EPA also is
taking the position that it is important to clarify actions UST owners
and operators must take if a test confirms a leak or indicates a
release exists. If a leak is confirmed, UST owners and operators must
correct or address the problem. In addition to options listed in the
1988 UST regulation, EPA is proposing to include closure as another
option. Nothing in this proposal changes the requirement in subpart F
for UST owners and operators to take corrective action if a release
occurred.
What issues related to this change does EPA request comment or
additional data on?
EPA did not identify specific issues for comment.
E. General Updates
1. Incorporate Newer Technologies
What is EPA proposing?
EPA is proposing to include technologies developed since issuing
the 1988 UST regulation and clarify the use of those technologies. EPA
is proposing these changes:
Tanks–revise steel-fiberglass-reinforced-plastic
composite in Sec. 280.20(a)(3) to steel tank clad or jacketed with a
non-corrodible material. UST owners and operators will be able to use
jacketed tanks to meet EPA’s proposed requirement for secondary
containment and interstitial monitoring described in section A-2.
Piping–revise fiberglass-reinforced plastic in Sec.
280.20(b)(1) to non-corrodible material. This will allow UST owners and
operators to install other piping, such as flexible plastic, that does
not corrode.
Release detection–add two release detection options:
Continuous in-tank leak detection (CITLD) and statistical inventory
reconciliation (SIR). UST owners and operators will be able to use
these additional options to meet release detection requirements in
Sec. 280.40, as long as the methods meet the following:
[cir] CITLD–automatic tank gauge operating on an uninterrupted
basis or operating within a process that allows the system to gather
incremental measurements to determine the leak status of the tank at
least once every 30 days.
[cir] SIR–quantitative analysis with a calculated leak rate
capable of detecting a 0.2 gallon per hour leak rate within 30 days
with a probability of detection of 0.95 and a probability of false
alarm of 0.05 is required, based on a threshold that does not exceed
one-half the minimum leak rate.
EPA is proposing to list three additional continuous interstitial
monitoring methods in Sec. 280.43(g): Liquid-filled, pressure, and
vacuum interstitial monitoring. These methods must be capable of
detecting a breach in both the inner and outer walls of the tank and
piping.
Why is EPA proposing this change? What background information is
available about this change?
Since EPA promulgated the 1988 UST regulation, newer tank, piping,
and release detection technologies have been developed and are being
used. EPA is proposing this change to acknowledge newer UST related
technologies and clarify the use of these technologies.
Clad and Jacketed Tanks
The 1988 UST regulation allows these tank technologies: Coated and
cathodically protected steel; fiberglass reinforced plastic; steel-
fiberglass-reinforced-plastic composite; and metal without additional
corrosion protection, provided that a corrosion expert determines the
site is not corrosive enough to cause a release from corrosion during
the tank’s life. The 1988 regulation also allows use of other tank
technologies that implementing agencies determine are no less
protective of human health and the environment than those listed above.
Additional non-corrodible materials are now used as claddings for steel
tanks, and they are as effective at preventing corrosion as
technologies in the 1988 regulation. EPA considers a cladding to be a
non-corrosive dielectric material, bonded to the steel tank with
sufficient durability to prevent corrosion during the tank’s life. EPA
did not include jacketed tanks in the 1988 regulation, even though they
are no less protective of human health and the environment than
technologies listed in the regulation. EPA considers jacketed to be a
non-corrosive dielectric material that: Is constructed as secondary
containment (jacketed) around a steel tank; has sufficient durability
to prevent corrosion during the tank’s life; and prevents a regulated
substance released from the primary steel tank wall from reaching the
environment. EPA estimates 10 percent of regulated tanks today are
jacketed with a non-corrodible material and 18 percent are clad with a
non-corrodible material.\68\
—————————————————————————
\68\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
Non-Corrodible Piping
The 1988 UST regulation allows fiberglass-reinforced plastic piping
as a non-corrodible piping option, as well as other piping technologies
that implementing agencies determine are no less protective of human
health and the environment than those in the
[[Page 71745]]
regulation. Non-corrodible piping not made of fiberglass-reinforced
plastic (in particular, flexible plastic piping) was installed
beginning in the 1990s and has evolved over the past 20 years. Flexible
plastic piping is made of various non-corrodible materials, such as
polyethylene and polyurethane. EPA estimates at least 13 percent of
regulated piping currently installed is made of non-corrodible
materials that are not fiberglass-reinforced plastic.\69\ Revising
fiberglass-reinforced piping to non-corrodible piping will allow UST
owners and operators to install other types of non-corrodible piping,
such as flexible plastic, without requiring implementing agencies to
make a determination.
—————————————————————————
\69\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical And Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
Release Detection Technologies
The 1988 UST regulation allows UST owners and operators to use
other methods that meet release detection performance criteria listed
at Sec. 280.43(h). Although CITLD and SIR are allowed under Sec.
280.43(h), it is important to specify both by name.
CITLD
The 1988 UST regulation allows ATG systems as a recognized method
of release detection. However, it is generally listed with performance
requirements consistent with the method being used to perform a static
test. ATG relies on system down time, absent product delivery or
dispensing activities. In static testing mode, the ATG system analyzes
product level and determines whether or not a leak is present during
that down time. Yet for years, UST owners and operators used ATG
systems as a means of continually monitoring tanks for potential
releases. Continuous in-tank leak detection has evolved as a reliable
means of providing release detection equivalent to other methods
specified in Sec. 280.41. Within this category of methods, EPA will
also allow continuous in-tank methods where the system incrementally
gathers measurements to determine the tank’s leak status within the 30-
day monitoring period. Today’s proposal formally recognizes CITLD as a
release detection method in Sec. 280.43(d). Per Sec. 280.41, a
conclusive pass or fail result must be obtained within the 30-day
monitoring period. All monitoring records must be maintained according
to Sec. 280.45. Another method of release detection is required in the
event of an inconclusive result. UST owners and operators may perform
an in-tank static test using the ATG system or another method in
subpart D.
SIR
Today’s proposal adds SIR by name to the final UST regulation and
clarifies its use. SIR must:
Report a quantitative result with calculated leak rate;
Be capable of detecting a leak rate of at least 0.2 gallon
per hour with a probability of detection of not less than 0.95 and a
probability of false alarm of no greater than 0.05; and
Use a threshold that does not exceed one-half the minimum
detectable leak rate.
A quantitative result with a calculated leak rate is necessary to
effectively perform release detection using SIR. Some SIR methods are
qualitative based methods that simply provide a result of pass or fail
without any additional information for UST owners and operators to
gauge the validity of the reported results. Based on information in
NWGLDE’s list,\70\ approximately 15 percent of SIR methods listed are
qualitative-based methods. Many state UST implementing agencies already
only allow the use of quantitative methods. Today’s proposal will no
longer allow qualitative SIR as an option for meeting the release
detection requirement.
—————————————————————————
\70\ National Work Group On Leak Detection Evaluation’s (NWGLDE)
List Of Leak Detection Evaluations for Storage Tank Systems: http://www.nwglde.org/.
—————————————————————————
Consistent with some of the release detection methods described in
Sec. 280.43(h), EPA maintained the performance standard of 0.2 gallon
per hour with a probability of detection of 0.95 and a probability of
false alarm of 0.05. However, we are not requiring the additional
standard of 150 gallons within a month per Sec. 280.43(h). EPA
included this additional standard in the 1988 UST regulation to
primarily address external methods. EPA added the standard because it
is more difficult to demonstrate that external methods meet a small
hourly leak rate than a larger, though equivalent, volume. SIR is an
in-tank monitoring method and the 0.2 gallon per hour standard with a
probability of detection (Pd) of 0.95 and a probability of false alarm
(Pfa) of 0.05 is the applicable standard to use.
SIR must also meet EPA’s established requirement for probability of
detection and probability of false alarm. In a normal probability
distribution, SIR data typically analyzed through the calculation of
the reportable values of minimum detectable leak rate (MDL) and the
leak declaration threshold (T) are related as follows:
MDL is always greater than T
Pd = (1-Pfa), then MDL = 2 times T (i.e., T = \1/2\ MDL).
Any analysis of data indicating a threshold value greater than one-
half minimum detectable leak rate should be appropriately investigated
as a suspected release.
In this proposal, EPA is addressing the following issues associated
with using SIR:
SIR is not the same as inventory control
[cir] For years, users, vendors, and regulators incorrectly linked
SIR to the inventory control method described in Sec. 280.43(a). SIR
is more sophisticated than inventory control and not subject to the
same requirement to combine it with tank tightness testing and limit
its use to 10 years. Note Sec. 280.50(c)(2) states, “In the case of
inventory control, a second month of data does not confirm the initial
result.” This language allowed owners and operators to use a second
month of inventory control data to confirm initial possible failure
results. However, this allowance does not apply to SIR.
Results for release detection, including SIR, are required
within the 30-day monitoring period
[cir] EPA considered including a requirement that UST owners and
operators obtain a record of SIR results within 30 days. However, we
believe this requirement is adequately covered in 40 CFR part 280,
subpart D of the 1988 UST regulation. As Sec. 280.41 states, “Tanks *
* * must be monitored for releases at least every 30 days using one of
the methods listed in Sec. 280.43(d) through (h) * * *”. In today’s
proposal, EPA is adding a subsection to formally recognize SIR. A
definitive result of pass or fail that identifies the tank’s leak
status is required within the 30-day monitoring period for all release
detection methods, including SIR.
Owners and operators must use another method of release
detection if SIR results are inconclusive results
[cir] For years, implementing agencies have been concerned about
inconclusive results when using SIR for release detection. In 1993, EPA
issued a policy regarding inconclusive SIR results,\71\ which says all
methods used to meet release detection requirements in Sec. 280.41
must obtain a conclusive result of pass or fail within the 30-day
[[Page 71746]]
monitoring period. All monitoring records must be maintained according
to Sec. 280.45. For SIR, this means UST owners and operators must
obtain a report determining release status within the 30-day monitoring
period. Another method of release detection is required: when results
are inconclusive; prior to sufficient data being gathered to generate
an initial report at startup; or when a report is not available for any
month of monitoring.
—————————————————————————
\71\ UST Technical compendium, question and answer number 21:
http://epa.gov/oust/compend/rd.htm.
—————————————————————————
Initial SIR report at startup
[cir] SIR methods need to gather data over a period of time in
order to determine whether the tank is leaking. In some cases,
regulatory agencies have addressed significant lag times between when
data is collected to when a tank status determination is available to
owners and operators. NWGLDE’s list of third-party evaluated methods
indicates the data collection period required for SIR methods ranges
from 15 to 90 days. However, most methods require between 23 to 30 days
to gather sufficient measurements that provide an accurate result. Any
method that goes beyond a 30-day monitoring period is inconsistent with
the established requirement and does not protect human health and the
environment. It is imperative that UST owners and operators determine
the status of their tanks within the established monitoring period to
avoid increased risk of contamination.
[cir] EPA recognizes that a rolling collection of data may be used
to analyze the leak status of the tank. For example, data from the
previous 30-day monitoring period may be added to measurements taken
within the current 30-day monitoring period to determine whether or not
the tank is leaking. However, the majority of data must come from the
current 30-day period and another method of release detection must be
used to monitor the tank during this startup period. Subsequent
monitoring continuously rolls data forward and provides sufficient data
in a timely manner to determine pass or fail.
Interstitial Monitoring
EPA is proposing to add three methods of interstitial monitoring–
vacuum, pressure, and liquid-filled methods–in Sec. 280.43(g)(4).
Although these interstitial methods are covered under the general
description provided in Sec. 280.43(g), These methods should be
included as distinct interstitial monitoring options. Each of these
methods must be capable of detecting breaches in both the inner and
outer walls of secondarily contained tanks and secondarily contained
piping.
What issues related to this change does EPA request comment or
additional data on?
Should EPA require specific performance standards for
vacuum, pressure, and liquid-filled interstitial monitoring? If so,
what should the performance standards be and why?
Are there performance standards for release detection
methods that should be added or removed?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
2. Updates to Codes of Practice Listed in the UST Regulation
What Is EPA Proposing?
EPA is proposing to update the codes of practice (also called
standards or recommended practices) listed in the 1988 UST regulation
to reflect new codes, changes to code names, and new nationally
recognized associations and independent testing laboratories. EPA
proposes to update, add, or remove codes of practice to the following
specific areas of the 1988 UST regulation:
Section 280.11–Interim Prohibition for Deferred UST Systems
Updated Codes:
–NACE International Recommended Practice RP 0285, Corrosion Control of
Underground Storage Tank Systems by Cathodic Protection
Added Codes:
–NACE International Standard Practice SP 0169, Control of External
Corrosion on Underground or Submerged Metallic Piping Systems
–American Petroleum Institute Recommended Practice 1632, Cathodic
Protection of Underground Petroleum Storage Tanks and Piping Systems
–Steel Tank Institute Recommended Practice R892, Recommended Practice
for Corrosion Protection of Underground Piping Networks Associated with
Liquid Petroleum Storage and Dispensing Systems
Section 280.20(a)(1)–Fiberglass Tanks
Updated Codes:
–Underwriters Laboratories Standard 1316, Glass-Fiber-Reinforced
Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and
Alcohol-Gasoline Mixtures
–Underwriters Laboratories of Canada S615, Standard for Reinforced
Plastic Underground Tanks for Flammable and Combustible Liquids
Removed Codes:
–American Society of Testing and Materials Standard D4021-86, Standard
Specification for Glass-Fiber-Reinforced Polyester Underground
Petroleum Storage Tanks
Section 280.20(a)(2)–Steel Tanks With Cathodic Protection
Updated Codes:
–Steel Tank Institute Specification sti-P3[supreg] Specification and
Manual for External Corrosion Protection of Underground Steel Storage
Tanks
–Underwriters Laboratories Standard 1746, Standard for External
Corrosion Protection Systems for Steel Underground Storage Tanks
–Underwriters Laboratories of Canada S603, Standard for Steel
Underground Tanks for Flammable and Combustible Liquids
–Underwriters Laboratories of Canada S603.1, Standard for External
Corrosion Protection Systems for Steel Underground Tanks for Flammable
and Combustible Liquids
–Underwriters Laboratories of Canada S631, Standard for Isolating
Bushings for Steel Underground Tanks Protected with External Corrosion
Protection Systems
–NACE International Recommended Practice RP 0285, Corrosion Control of
Underground Storage Systems by Cathodic Protection
–Underwriters Laboratories Standard 58, Standard for Steel Underground
Tanks for Flammable and Combustible Liquids
Added Codes:
–Steel Tank Institute Standard F841, Standard for Dual Wall
Underground Steel Storage Tanks
Section 280.20(a)(3)–Clad or Jacketed Steel Tanks
Updated Codes:
–Underwriters Laboratories Standard 1746, Standard for External
Corrosion Protection Systems for Steel Underground Storage Tanks
Added Codes:
–Steel Tank Institute Specification F894, ACT-100[supreg]
Specification for External Corrosion Protection of FRP Composite Steel
USTs
–Steel Tank Institute Specification F961, ACT-100-U[supreg]
Specification for External Corrosion Protection of Composite Steel
Underground Storage Tanks
–Steel Tank Institute Specification F922, Steel Tank Institute
Specification for Permatank[supreg]
Removed Codes:
–Association for Composite Tanks ACT-100, Specification for the
[[Page 71747]]
Fabrication of FRP Clad Underground Storage Tanks
Section 280.20(a)(6)–Secondary Containment Tanks (New Addition to the
Regulation–See Section A-2)
Added Codes:
–Underwriters Laboratories Standard 58, Standard for Steel Underground
Tanks for Flammable and Combustible Liquids
–Underwriters Laboratories Standard 1316, Glass-Fiber-Reinforced
Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and
Alcohol-Gasoline Mixtures
–Underwriters Laboratories Standard 1746, Standard for External
Corrosion Protection Systems for Steel Underground Storage Tanks
–Steel Tank Institute Standard F841, Standard for Dual Wall
Underground Steel Storage Tanks
–Steel Tank Institute Specification F922, Steel Tank Institute
Specification for Permatank[supreg]
Section 280.20(b)(1)–Non-corrodible Piping
Updated Codes:
–Underwriters Laboratories Standard 971, Standard for Non-Metallic
Underground Piping for Flammable Liquids
–Underwriters Laboratories of Canada Standard S660, Standard for Non-
Metallic Underground Piping for Flammable Liquids
Removed Codes:
–Underwriters Laboratories Standard 567, Pipe Connectors for Flammable
and Combustible and LP Gas
–Underwriters Laboratories of Canada Standard CAN 4-S633-M81, Flexible
Underground Hose Connectors
Section 280.20(b)(2)–Steel Piping With Cathodic Protection
Updated Codes:
–American Petroleum Institute Recommended Practice 1632, Cathodic
Protection of Underground Petroleum Storage Tanks and Piping Systems
–NACE International Standard Practice SP 0169, Control of External
Corrosion on Underground or Submerged Metallic Piping Systems
Added Codes:
–Underwriters Laboratories Subject 971A, Outline of Investigation for
Metallic Underground Fuel Pipe
–Steel Tank Institute Recommended Practice R892, Recommended Practice
for Corrosion Protection of Underground Piping Networks Associated with
Liquid Petroleum Storage and Dispensing Systems
–NACE International Recommended Practice RP 0285, Corrosion Control of
Underground Storage Systems by Cathodic Protection
Removed Codes:
–National Fire Protection Association Standard 30, Flammable and
Combustible Liquids Code
–American Petroleum Institute Publication 1615, Installation of
Underground Petroleum Storage Systems
Section 280.20(b)(3)–Metal Piping Without Additional Corrosion
Protection
Removed Codes:
–National Fire Protection Association Standard 30, Flammable and
Combustible Liquids Code
–National Association of Corrosion Engineers Standard RP-01-69,
Control of External Corrosion on Submerged Metallic Piping Systems
Section 280.20(b)(5)–Secondary Containment Piping (New Addition to the
Regulation–See Section A-2)
Added Codes:
–Underwriters Laboratories Standard 971, Standard for Non-Metallic
Underground Piping for Flammable Liquids
–Underwriters Laboratories Subject 971A, Outline of Investigation for
Metallic Underground Fuel Pipe
Section 280.20(d)–Installation
Updated Codes:
–American Petroleum Institute Publication 1615, Installation of
Underground Petroleum Storage System
–Petroleum Equipment Institute Publication RP100, Recommended
Practices for Installation of Underground Liquid Storage Systems
Added Codes:
–National Fire Protection Association Standard 30, Flammable and
Combustible Liquids Code
–National Fire Protection Association Standard 30A, Code for Motor
Fuel Dispensing Facilities and Repair Garages
Removed Codes:
–American National Standards Institute Standard B31.3, Petroleum
Refinery Piping
–American National Standards Institute Standard B31.4, Liquid
Petroleum Transportation Piping System
Section 280.21–Lining Inspection Standards (New Addition to the
Regulation–See Section E-3)
Added Codes:
–American Petroleum Institute Recommended Practice 1631, Interior
Lining and Periodic Inspection of Underground Storage Tanks
–National Leak Prevention Association Standard 631, Entry, Cleaning,
Interior Inspection, Repair, and Lining of Underground Storage Tanks
–Ken Wilcox Associates Recommended Practice, Recommended Practice for
Inspecting Buried Lined Steel Tanks Using a Video Camera
Section 280.21(e)–Upgrade Requirements for Previously Deferred UST
Systems (New Addition to the Regulation–See Section C)
Added Codes:
–NACE International Recommended Practice RP 0285, Control of
Underground Storage Tank Systems by Cathodic Protection
–NACE International Standard Practice SP 0169, Control of External
Corrosion on Underground or Submerged Metallic Piping Systems
–National Leak Prevention Association Standard 631, Entry, Cleaning,
Interior Inspection, Repair, and Lining of Underground Storage Tanks
–American Society for Testing and Materials Standard G158, Standard
Guide for Three Methods of Assessing Buried Steel Tanks
Section 280.30–Spill and Overfill Control
Updated Codes:
–National Fire Protection Association Standard 385, Standard for Tank
Vehicles for Flammable and Combustible Liquids
–American Petroleum Institute Recommended Practice 1621, Bulk Liquid
Stock Control at Retail Outlets
Added Codes:
–American Petroleum Institute Recommended Practice 1007, Loading and
Unloading of MC 306/DOT 406 Cargo Tank Motor Vehicles
Removed Codes:
–National Fire Protection Association Standard 30, Flammable and
Combustible Liquids Code
Section 280.31–Operation and Maintenance of Corrosion Protection
Updated Codes:
–NACE International Recommended Practice RP 0285, Control of
Underground Storage Tank Systems by Cathodic Protection
Added Codes:
–NACE International Standard Practice SP 0169, Control of External
Corrosion on Underground or Submerged Metallic Piping Systems
–NACE International Test Method TM 0101, Measurement Techniques
[[Page 71748]]
Related to Criteria for Cathodic Protection on Underground or Submerged
Metallic Tank Systems
–NACE International Test Method TM0497, Measurement Techniques Related
to Criteria for Cathodic Protection on Underground or Submerged
Metallic Piping Systems
–Steel Tank Institute Recommended Practice R051, Cathodic Protection
Testing Procedures for sti-P3 USTs
Section 280.32–Compatibility
Removed Codes:
–American Petroleum Institute Publication 1626, Storing and Handling
Ethanol and Gasoline-Ethanol Blends at Distribution Terminals and
Service Stations
–American Petroleum Institute Publication 1627, Storage and Handling
of Gasoline-Methanol/Cosolvent Blends at Distribution Terminals and
Service Stations
Section 280.33–Repairs
Updated Codes:
–National Fire Protection Association Standard 30, Flammable and
Combustible Liquids Code
–American Petroleum Institute Recommended Practice RP 2200, Repairing
Crude Oil, Liquified Petroleum Gas, and Product Pipelines
–American Petroleum Institute Recommended Practice RP 1631, Interior
Lining and Periodic Inspection of Underground Storage Tanks
–National Leak Prevention Association Standard 631, Entry, Cleaning,
Interior Inspection, Repair, and Lining of Underground Storage Tanks
Added Codes:
–National Fire Protection Association Standard 326, Safeguarding of
Tanks and Containers for Entry, Cleaning, or Repair
–Steel Tank Institute Recommended Practice R972, Recommended Practice
for the Addition of Supplemental Anodes to sti-P3[supreg] Tanks
–NACE International Recommended Practice RP 0285, Control of
Underground Storage Tank Systems by Cathodic Protection
–Fiberglass Tank and Pipe Institute Recommended Practice T-95-02,
Remanufacturing of Fiberglass Reinforced Plastic (FRP) Underground
Storage Tanks
Section 280.36–Secondary Containment Testing (New Addition to the
Regulation–See Section B-4)
Added Codes:
–Steel Tank Institute Recommended Practice R012, Recommended Practice
for Interstitial Tightness Testing of Existing Underground Double Wall
Steel Tanks
–Fiberglass Tank and Pipe Institute Protocol, Field Test Protocol for
Testing the Annular Space of Installed Underground Fiberglass Double
and Triple-Wall Tanks with Dry Annular Space
Section 280.37–Walkthrough Inspections (New Addition to the
Regulation–See Section B-1)
Added Codes:
–Petroleum Equipment Institute Recommended Practice RP 900,
Recommended Practices for the Inspection and Maintenance of UST Systems
Section 280.43(a)–Inventory Control
Updated Codes:
–American Petroleum Institute Recommended Practice RP 1621, Bulk
Liquid Stock Control at Retail Outlets
Section 280.43(g)–Interstitial Monitoring
Removed Codes:
–Steel Tank Institute Standard F841, Standard for Dual Wall
Underground Steel Storage Tanks (moved to new section 280.20(a)(6))
Section 280.71–Permanent Closure
Updated Codes:
–American Petroleum Institute Recommended Practice RP 1604, Closure of
Underground Petroleum Storage Tanks
–American Petroleum Institute Recommended Practice RP 1631, Interior
Lining and Periodic Inspection of Underground Storage Tanks
–The National Institute for Occupational Safety and Health Publication
80-106, Criteria for a Recommended Standard * * * Working in Confined
Space
Added Codes:
–American Petroleum Institute Recommended Practice 2016, Guidelines
and Procedures for Entering and Cleaning Petroleum Storage Tanks
–National Fire Protection Association Standard 326, Safeguarding of
Tanks and Containers for Entry, Cleaning, or Repair
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing this change to update the codes of practice
associated with regulated UST systems. The 1988 UST regulation relies
heavily on codes of practice developed by nationally recognized
associations or independent testing laboratories.
EPA reviewed information on more than 200 codes of practice from
more than 25 code-making groups that have been developed or revised
since the 1988 regulation.\72\ As a result of this review, EPA proposes
to add 18 codes of practice not previously listed in the 1988
regulation, remove or move 12, and update all codes of practice in the
1988 UST regulation (see the specific additions, updates, and removals
listed above). EPA is proposing to add the 18 codes of practice that
were previously not listed because they are applicable to the UST
regulation and did not exist when EPA originally promulgated the 1988
UST regulation. EPA is proposing to remove or move the 12 codes of
practice in the 1988 UST regulation for one of the following reasons:
—————————————————————————
\72\ E2, Incorporated, memoranda and analyses submitted under
Contract EP-W-05-018, “U.S. Environmental Protection Agency.
Underground Storage Tanks/Leaking Underground Storage Tanks
Analytical and Technical Support.” These supporting materials can
be found in the docket for the proposed rulemaking.
—————————————————————————
The code of practice is out of date, no longer available,
was withdrawn, or rescinded;
The code of practice did not provide any information
appropriate to the section of the regulation where it was referenced;
The information in the code of practice did not adequately
address the part of the regulation where it was referenced; or
The code of practice is no longer needed.
For example, the Association for Composite Tanks ACT-100 tank
standard was listed in Sec. 280.20(a)(3) as a code of practice for
meeting the clad tank requirement. EPA is removing this code of
practice because both the association and code of practice no longer
exist.
In several cases, EPA is proposing to move a code of practice from
one section of the 1988 UST regulation to another section. For example,
EPA is proposing to move Steel Tank Institute Standard F841, Standard
for Dual Wall Underground Steel Storage Tanks from Sec. 280.43(g)–
interstitial monitoring to Sec. 280.20(a)(6)–secondary containment
tanks. EPA is proposing this because we are adding secondary
containment requirements to the performance standards for new UST
systems portion of this proposed UST regulation.
Note: EPA is aware of at least one code of practice (Petroleum
Equipment Institute standard for testing of spill, overfill,
interstitial areas, and release detection)
[[Page 71749]]
currently being developed that could be potentially relevant to this
proposed UST regulation. Other standards may be developed before EPA
publishes a final UST regulation. If so, EPA will consider including
them in the final UST regulation.
What issues related to this change does EPA request comment or
additional data on?
Should other codes of practice be added to or removed from
the UST regulation? If so, please provide EPA with information about
the code and the specific location in the UST regulation where the code
should be included or removed.
The regulations at Sec. 280.20(d) require that all tanks
and piping be properly installed in accordance with a code of practice
developed by a nationally recognized association or independent testing
laboratory and in accordance with manufacturer’s instructions. Since
the installation codes of practice also address other UST system
components such as spill and overfill, should EPA consider revising
Sec. 280.20(d) such that all portions of the UST system must be
installed according to a code of practice and according to
manufacturer’s instructions?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
3. Updates to Remove Old Upgrade and Implementation Deadlines
What is EPA proposing?
EPA is proposing to revise the UST regulation to remove references
to the 1998 deadline and old phase-in schedules, while continuing to
allow testing of corrosion protection and release detection. For those
deferred UST systems EPA is proposing to regulate, we are proposing
those systems be allowed to upgrade with spill, overfill, and corrosion
protection. EPA is proposing the following specific revisions:
Revise upgrading of existing UST systems in the 1988 UST regulation
(Sec. 280.21).
Remove the 1998 upgrade deadline references, but continue
to allow:
[cir] Testing of internally-lined USTs;
[cir] Tanks and piping with cathodic protection; and
[cir] Upgrades of deferred UST systems EPA is proposing to
regulate, including wastewater treatment tank systems, airport hydrant
systems, UST systems with field-constructed tanks, and UST systems that
store fuel solely for use by emergency power generators. See section C
for additional information on deferred UST systems.
Require UST systems not upgraded with corrosion
protection, spill, or overfill prevention be permanently closed
according to subpart G, unless the implementing agency determines an
upgrade is appropriate or the UST system was deferred in the 1988 UST
regulation.
Revise release detection requirements in the 1988 UST regulation.
Section 280.40
[cir] Remove phase-in schedule for release detection probabilities;
[cir] Remove phase-in schedule for release detection monitoring;
[cir] Remove references to upgrade deadlines;
[cir] Remove references to existing USTs; and
[cir] Address deferred UST systems EPA is proposing to regulate,
add language about implementing release detection monitoring for these
systems in Sec. 280.40(c).
Section 280.41
[cir] Remove inventory control and annual tightness testing as a
regulatory option;
[cir] Remove reference to upgrade deadlines; and
[cir] Make the inventory control and five year tightness testing
language historical by putting language in this section in the past
tense.
Section 280.42
[cir] Remove 1998 references and upgrade language for existing
hazardous substance UST systems.
EPA is proposing to remove the phase-in schedule in Sec. 280.91 of
subpart H to acknowledge that financial responsibility implementation
deadlines are passed and remove references to Sec. 280.91 and the
deadlines in Sec. 280.90. In addition, EPA is proposing to revise
Sec. 280.91 to reference the phase-in schedule for deferred UST
systems EPA is proposing to regulate at Sec. 280.10.
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing these changes to acknowledge that the 1998
deadline for upgrading UST systems with release prevention and the
1990s release detection and financial responsibility deadlines passed
more than a decade ago. Owners and operators had more than two decades
to upgrade their UST systems and meet the 1988 UST regulation. In
addition, all UST facilities have been inspected at least once and are
required to meet release detection, release prevention, and financial
responsibility requirements. EPA is proposing owners and operators of
upgraded UST systems continue conducting cathodic protection and
internal lining testing consistent with how they previously performed
these tests.
For release detection, EPA is proposing to eliminate the phase-in
for both release detection probabilities and release detection
monitoring. EPA is proposing to eliminate these two phase-in parts
because the deadlines for implementing these requirements have passed.
Owners and operators have been implementing these requirements for more
than two decades. The last phase-in period applied to systems installed
between 1980 and 1988, giving owners and operators until 1993 to meet
the subpart D requirements. Any new UST installed after 1993 had to
meet release detection requirements when installed.
To meet the release detection requirement, Sec. 280.41 allows
owners and operators of USTs less than 10 years old to use a
combination of monthly inventory control with tank tightness testing
every five years, until the UST has been installed for 10 years. When
the UST is 10 years old, owners and operators must use another release
detection method listed in subpart D. For new and replaced UST systems
installed after the effective date of the final UST regulation,
interstitial monitoring will be required. The new interstitial
monitoring requirement will make inventory control and tank tightness
testing obsolete as a release detection method 10 years after the UST
regulation is finalized.
For hazardous substance UST systems release detection, EPA is
proposing to remove 1998 deadline and upgrade references. The 1988 UST
regulation in Sec. 280.41 required existing UST systems meet the
requirements for petroleum UST systems until 1998. After 1998, all new
and existing hazardous substance UST systems must meet requirements for
new hazardous substance UST systems. Since the 1998 deadline has
passed, these changes will clarify the hazardous substance UST system
requirements.
For financial responsibility, EPA is proposing to remove the phase-
in dates in Sec. 280.91. These phase-in dates passed more than a
decade ago and are no longer needed. In addition, Sec. 280.90(b) and
(e) contain references to Sec. 280.91 and compliance dates that need
to be removed.
UST systems with field constructed tanks, airport hydrant systems,
and wastewater treatment tank systems may be upgraded according to
Sec. 280.21. However, EPA is proposing to no longer allow UST systems
regulated under the 1988 UST regulation to be upgraded if they have
never met the upgrade requirements. Unless the implementing
[[Page 71750]]
agency determines that an UST system is acceptable to upgrade, non-
upgraded UST systems must be permanently closed according to the
closure requirements in subpart G. UST systems that have not been
upgraded are older and have been in the ground for more than two
decades. In addition, metal USTs and piping without corrosion
protection pose a significant risk to human health and the environment
because the metal in contact with soil corrodes. EPA is proposing that
implementing agencies make case-by-case determinations on when to allow
upgrades. EPA does not expect implementing agencies to allow continued
use of USTs or piping not upgraded with corrosion protection. However,
some implementing agencies may decide to allow owners and operators of
UST systems with corrosion protection, but without spill or overfill
prevention, to add spill or overfill prevention instead of requiring
permanent closure.
The proposed requirements in Sec. 280.21 will allow UST systems
EPA is proposing to no longer defer to be upgraded. See section C for
additional information on upgrading these UST systems.
What issues related to this change does EPA request comment or
additional data on?
Does removing the deadlines and making upgrades historical
cause any unintended regulatory consequences?
Should EPA consider not allowing the implementing agency
the flexibility of making a determination to allow an upgrade?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
4. Editorial and Technical Corrections
What is EPA proposing?
EPA is proposing these editorial corrections to the 1988 UST
regulation:
Where “industry codes” and “codes and standards” are
used, replace with “codes of practice”
Revise to appropriately use the terms: part, subpart,
section, and paragraph
Section 280.10(c)(3)–change “10 CFR part 50 Appendix A”
to “10 CFR part 50”
Section 280.20(a)(2), paragraph (C) in the note–change
“G03.1” to “603.1”
Section 280.21(b)(2)(iii)–change “by conducting two (2)
tightness tests that meet the requirements of Sec. 280.43(c). The
first tightness test must be conducted prior to installing the cathodic
protection system. The second tightness test must be conducted between
three (3) and six (6) months following the first operation of the
cathodic protection system; or” to “by conducting two tightness tests
that meet the requirements of Sec. 280.43(c). The first tightness test
must be conducted prior to installing the cathodic protection system.
The second tightness test must be conducted between three and six
months following the first operation of the cathodic protection system;
or”
Section 280.20(c)(1)(ii)(C)–change “operator” to
“transfer operator”
Section 280.22(a)–change “Any owner who brings an
underground storage tank system into use after May 8, 1986, must within
30 days of bringing such tank into use, submit, in the form prescribed
in Appendix I of this part, a notice of existence of such tank system
to the state or local agency or department designated in Appendix II of
this part to receive such notice.” to “After May 8, 1986, an owner
must submit notice of a tank system’s existence to the implementing
agency within 30 days of bringing the underground storage tank system
into use. Owners must use the form in Appendix I of this part.”
Section 280.22(g)–change “The form provided in Appendix
III of this part may be used to comply with this requirement.” to
“The statement provided in Appendix III of this part, when used on
shipping tickets and invoices, may be used to comply with this
requirement.”
Section 280.31–change “for as long as the UST system is
used to store regulated substances” to “until the UST system is
permanently closed or undergoes a change-in-service pursuant to Sec.
280.71.”
Section 280.31–change “steel” to “metal”
Section 280.33(c)–change “fiberglass pipes” to “non-
corrodible pipes”
Section 280.33(g)–change “for the remaining operating
life of the UST system” to “until the UST system is permanently
closed or undergoes a change-in-service pursuant to Sec. 280.71.”
Section 280.34–change “Resource Conservation and
Recovery Act” to “Solid Waste Disposal Act”
Section 280.34(b)(2)–change cite from “280.31” to
“280.31(d)”
Section 280.40(a)(3)–change “probability of detection
(Pd) of 0.95 and probability of false alarm (Pfa) of 0.05.” to
“probability of detection of 0.95 and probability of false alarm of
0.05.”
Section 280.41(b)(2)–change “conduct” to “conducted”
Section 280.42(a)(1)(ii)–change “released from the tank
system” to “leaked from the primary containment”
Section 280.42(d)–delete “jacketing of” from “* * *
jacketing of double-walled pipe)* * *”
Section 280.43(b)(4)–change “leak” to “release”
Section 280.43(b)(5)–delete “manual” from “manual
inventory control”
Section 280.52(a)(1)–change “repair, replace, or upgrade
the UST system” to “repair, replace, upgrade, or close the UST
system”
Section 280.52(a)(1)–change “leak” to “release”
Section 280.52(a)(2)–change “leak” to “release”
Section 280.52(a)(3)–change “leak” to “release”
Section 280.92–definition for provider of financial
assurance–change “Sec. Sec. 280.95-280.103” to “Sec. Sec. 280.95-
280.107”
Section 280.92, Sec. 280.95(b)(1)(iii), Sec.
280.95(c)(5), and Sec. 280.95(d)–change “Rural Electrification
Administration” to “Rural Utilities Service”
Section 280.94(a)(1)–change “Sec. Sec. 280.95-280.103”
to “Sec. Sec. 280.95-280.107”
Section 280.95(b)(1)(ii)–change “165.145” to “Sec.
265.145”
Section 280.95(c)(5)(i)–change “form” to “from”
Section 280.95(d)–change “[insert: “suddent accidential
releases” and/or “nonsudden accidential releases]” to “[insert:
“sudden accidental releases” or “nonsudden accidental releases” or
“accidental releases”]”
Section 280.95(d)–change “Liabilitly” to “Liability”
under Letter From Chief Financial Officer
Section 280.95(d)–change “lastest” to “latest” under
Letter From Chief Financial Officer, Alternative I, Number 11
Section 280.95(d)–remove “$” symbol for Number 8 under
Alternative II of the Letter From Chief Financial Officer
Section 280.95(d)–add “$” symbol for Numbers 13 and 14
under Alternative II of the Letter From Chief Financial Officer
Section 280.96(b)–change “Sec. 280.110(c)” to “Sec.
280.114(e)”
Section 280.96(c), Guarantee (Recital 3)–change three
“40 CFR 280.108” citations to “40 CFR Sec. 280.112”
Section 280.96(c), Guarantee (Recital 3)–change
“accidential” to “accidental”
Section 280.96(d)–change “280.108” to “Sec. 280.112”
Section 280.97(a)–change “Sec. 290.93” to “Sec.
280.93”
[[Page 71751]]
Section 280.98(b)–change “Resource Conservation and
Recovery Act (RCRA)” to Solid Waste Disposal Act”
Section 280.98(b), Performance Bond, paragraph 4,–change
“[* * * either “sudden” or “nonsudden” or “sudden and
nonsudden”] accidental releases arising from” to “either “sudden
accidental releases” or “nonsudden accidental releases” or
“accidental releases”] arising from * * *”
Section 280.98(b)–change two “40 CFR 280.108” citations
to “40 CFR 280.112”
Section 280.98(b)–add end brackets to “State of
Incorporation” and “Liability Limit”
Section 280.98(d)–change “40 CFR 280.108” citation to
“40 CFR 280.112”
Section 280.99(b)–change “Resource Conservation and
Recovery Act of 1976” to Solid Waste Disposal Act”
Section 280.99(b)–change “persuant” to “pursuant”
Section 280.99(b)–change “curent” to “current”
Section 280.99(c)–change “40 CFR 280.108” citation to
“40 CFR 280.112”
Section 280.101(d)–change “280.107(b)(5)” to “Sec.
280.111(b)(8)”
Section 280.103(b)(1), Trust Agreement, paragraph 2–
change “standpoint” to “[insert “standby” where trust agreement is
standby trust agreement]”
Section 280.103(b)(1), Trust Agreement, section 4–add
opening quotation mark for “Third-Party Liability Claims”
Section 280.103(b)(1), Trust Agreement, section 4–add
opening quotation mark for “compensating third parties for bodily
injury and property damage caused by”
Section 280.104(b)–change “Moody’s rating of Aaa, A, A”
to “Moody’s rating of Aaa, Aa, A”
Section 280.104(b)–change “refunded issues and” to
“refunded issues, and”
Section 280.104(e), Letter From Chief Financial Officer–
change “[insert: “sudden accidental releases” and/or “nonsudden
accidental releases”]” to “[insert: “sudden accidental releases”
or “nonsudden accidental releases” or “accidental releases”]”.
Note that this change occurs in two places in the letter.
Section 280.104(e), Letter From Chief Financial Officer,
last paragraph–change “not backed by third-party credit enhancement
or are insured by a municipal bond insurance company.” to “not backed
by third-party credit enhancement or insured by a municipal bond
insurance company.”
Section 280.105(c)–change “[insert: “sudden accidental
releases” and/or “nonsudden accidental releases”]” to “[insert:
“sudden accidental releases” or “nonsudden accidental releases” or
“accidental releases”]”
Section 280.105(c)–change 10(a) and 11(a) under Worksheet
for Municipal Financial Test, Part II from “Debt Service (from 4d)”
to “Debt Service (from 4c)”
Section 280.106(a)(1)–change “Sec. 280.104(c)” to
“Sec. 280.104(d) and Sec. 280.104(e)”
Section 280.106(b)–change “Sec. 280.114(c)” to “Sec.
280.114(e)”
Section 280.106(d), under Local Government Guarantee With
Standby Trust Made by a State, recital 7d–change “loaded” to
“loaned”
Section 280.106(e), under Local Government Guarantee
Without Standby Trust Made by a State, recital 7d–change “loaded” to
“loaned”
Section 280.106(e), under Local Government Guarantee
Without Standby Trust Made by a Local Government, recital 8d–change
“loaded” to “loaned”
Section 280.107(d)–change “[insert: “sudden accidental
releases” and/or “nonsudden accidental releases”]” to “[insert:
“sudden accidental releases” or “nonsudden accidental releases” or
“accidental releases”]”
Section 280.107(d), third paragraph under Letter From
Chief Financial Officer–change “ten” to “five”
Section 280.109(b)(3)–change “Sec. 280.107(b)” to
“Sec. 280.111(b)”
Section 280.111(b)(9)(ii)–change “Sec. 280.107(a)(3)”
to “Sec. 280.107(c)”
Section 280.111(b)(9)(iii)–change “Sec. 280.107(a)(3)”
to “Sec. 280.107(c)”
Section 280.111(b)(9)(iii)–change “Sec.
280.107(a)(3)(i)” to “Sec. 280.107(c)(1)”
Section 280.111(b)(9)(iii)–change “Sec.
280.107(a)(3)(ii)” to “Sec. 280.107(c)(2)”
Section 280.113–change “properly” to “permanently”
EPA is proposing these technical corrections to the 1988 UST
regulation:
Section 280.12–revise exclusion (d) of the definition of
UST to incorporate a revision in section 9001 of the SWDA as shown
below
“(d) Pipeline facility (including gathering lines):
(1) Which is regulated under chapter 601 of Title 49, or
(2) Which is an intrastate pipeline facility regulated under state
laws as provided in chapter 601 of Title 49,
and which is determined by the Secretary of Transportation to be
connected to a pipeline or to be operated or intended to be capable of
operating at pipeline pressure or as an integral part of a pipeline;”
Section 280.43(b)(1)–replace “a period of at least 36
hours” with “the minimum duration of test in the table below”; this
updates current UST capacity allowances when using manual tank gauging
as a method of release detection
[cir] Section 280.43(b)(4)–replace existing table with the one
below; this ensures information in the table is consistent with the
change in Sec. 280.43(b)(1)
—————————————————————————————————————-
Minimum duration of Weekly standard (one Monthly standard (four test
Nominal tank capacity test test) average)
—————————————————————————————————————-
550 gallons or less……………. 36 hours………….. 10 gallons………… 5 gallons.
551-1,000 gallons (when tank 44 hours………….. 9 gallons…………. 4 gallons.
diameter is 64”).
551-1,000 gallons (when tank 58 hours………….. 12 gallons………… 6 gallons.
diameter is 48”).
551-1,000 gallons (also requires 36 hours………….. 13 gallons………… 7 gallons.
periodic tank tightness testing).
1,001-2,000 gallons (also requires 36 hours………….. 26 gallons………… 13 gallons.
periodic tank tightness testing).
—————————————————————————————————————-
[cir] Section 280.41(a)(2)–modify tank sizes in text so it is
consistent with the table above. “Tanks with capacity of 550 gallons
or less and tanks with a capacity of 551 to 1000 gallons that meet the
tank diameter criteria in Sec. 280.43(b) may use manual tank gauging
(conducted in accordance with Sec. 280.43(b))”; and
[[Page 71752]]
[cir] Section 280.43(b)(5)–modify tank sizes in text so it is
consistent with the table above. “Tanks of 550 gallons or less nominal
capacity and tanks with a nominal capacity of 551 to 1000 gallons that
meet the tank diameter criteria in the table in (b)(4) may use this as
the sole method of release detection. All other tanks with a nominal
capacity of 551 to 2,000 gallons may use the method in place of manual
inventory control in Sec. 280.43(a). Tanks of greater than 2,000
gallons nominal capacity may not use this method to meet the
requirements of this subpart.”
Section 280.43–remove the requirement for inventory
control in the automatic tank gauging release detection method
Section 280.92–change the definition of accidental
release from “release of petroleum from an underground storage tank”
to “release of petroleum arising from operating an underground storage
tank”
Section 280.104(h)–add this subsection: “(h) If the
local government owner or operator fails to obtain alternate assurance
within 150 days of finding that it no longer meets the requirements of
the bond rating test or within 30 days of notification by the Director
of the implementing agency that it no longer meets the requirements of
the bond rating test, the owner or operator must notify the Director of
such failure within 10 days.”
Revise Appendix III to read: “Note. A federal law (the
Solid Waste Disposal Act, as amended, requires owners of certain
underground storage tanks to notify implementing agencies of the
existence of their tanks. Notifications must be made within 30 days of
bringing the tank into use. Consult EPA’s regulations at 40 CFR 280.22
to determine if you are affected by this law.”
Why is EPA proposing this change? What background information is
available about this change?
EPA is proposing to make editorial and technical corrections to the
1988 UST regulation. Proposed editorial corrections include: correcting
misspellings; capitalizing words; removing unused acronyms; using
conventional number formatting; and appropriately referring to parts,
subparts, sections, and paragraphs. In addition, EPA is proposing
technical corrections which include updating the regulation to
incorporate statutory changes that occurred since the 1988 regulation
was promulgated and clarifying long-standing Agency policies.
The editorial change to Sec. 280.10(c)(3) makes the citation to
Nuclear Regulatory Commission regulation more general, in the event
requirements for emergency generator UST systems at nuclear power
facilities are moved from Appendix A to some other part of the Nuclear
Regulatory Commission regulation.
The editorial change to Sec. 280.22(a) makes the language easier
to understand and consistent with the proposed new paragraphs of Sec.
280.22(b) and Sec. 280.22(h).
The editorial change to Sec. 280.20(c)(1)(ii)(C) clarifies that
the transfer operator needs to be alerted. This change makes the
language consistent with Sec. 280.20(c)(1)(ii)(B). The editorial
change to Sec. 280.22(g) clarifies the content of and how to use
Appendix III of the 1988 UST regulation to meet the notification
requirement.
The editorial changes to Sec. 280.31 will eliminate any potential
confusion with the temporary closure requirement and ensure all metal
components comply with this section. Temporary closure requires owners
and operators operate and maintain corrosion protection even when the
UST system is emptied. The operation and maintenance of corrosion
section indicates that releases due to corrosion must be prevented as
long as the UST system is used to store regulated substances. While EPA
has interpreted that the UST system is used to store regulated
substances even if it is empty during temporary closure, this proposed
change will clarify this position. In addition, UST systems have metal
components, other than steel, protected from corrosion. Changing the
word steel to metal at the beginning of this section will make it clear
that the operation and maintenance requirements for corrosion
protection apply to all metal components.
The editorial change to Sec. 280.33(g) will clarify when the
operating life of an UST system ends. EPA does not define an operating
life; rather, we describe permanent closure and change-in-service. With
this change, EPA is proposing the operating life of an UST system ends
when an owner or operator permanently closes the UST system or the UST
system undergoes a change-in-service from regulated to unregulated.
EPA is proposing a technical correction to revise the definition of
UST as it relates to pipeline facilities. This revision directly
incorporates a change made to Section 9001 of the Solid Waste Disposal
Act after the 1988 UST regulation was promulgated.
EPA is proposing a technical correction to clarify that hazardous
substance USTs must be able to contain regulated substances released
from the UST system until the substances are detected and removed.
Based on the 1988 UST regulation definition of release, the statement
implies that a regulated substance has reached the environment. Because
a regulated substance should be contained in the UST system’s secondary
containment, EPA is proposing to change the term released to leaked,
indicating a leak occurred from the primary containment but did not
reach the environment. Therefore, secondary containment would then
contain the leak. The editorial change to Sec. 280.42(d) removes
confusion about whether piping that is already double-walled also needs
to be jacketed.
EPA is proposing technical corrections to Sec. 280.43(d) which
will codify long-standing Agency policies for using manual tank gauging
and automatic tank gauging. These changes update UST capacity
allowances when using manual tank gauging and remove the requirement
for USTs using automatic tank gauging to conduct additional inventory
control. Since 1990 and 1989, EPA allowed these deviations from the
1988 UST regulation through policy for manual tank gauging and
automatic tank gauging, respectively. EPA also stated these allowances
in our publications: Manual Tank Gauging For Small Underground Storage
Tanks; Musts For USTs: A Summary of Federal Regulations For Underground
Storage Tank Systems; and Straight Talk On Tanks: Leak Detection
Methods For Petroleum Underground Storage Tanks And Piping. With regard
to manual tank gauging, note the expanded coverage of larger tanks is
limited in some respects by the diameter of the tank as noted in the
revised table.
EPA is proposing to add closure as an option at Sec. 280.52(a)(1)
to provide owners and operators additional flexibility when suspected
and confirmed releases occur.
EPA is proposing an editorial correction of “leak” to “release”
in Sec. 280.43(b)(4) and Sec. 280.52(a)(1), (2), and (3) because
release is defined as regulated substance reaching the environment in
the 1988 UST regulation.
EPA is updating references of “Rural Electrification
Administration” (REA) to “Rural Utilities Services” (RUS). Under the
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994, REA reorganized to RUS.
EPA is proposing to amend the definition of “accidental release”
under Sec. 280.92 so it matches the definition stated in the original
preamble for the financial responsibility requirements
[[Page 71753]]
(53 FR 43334). EPA intended the definition in the preamble to be
included in the 1988 UST regulation, but two important words were
inadvertently omitted. By changing this, EPA is clarifying that owners
and operators are required to have financial responsibility for
releases arising from operating USTs (including releases due to filling
USTs and releases occurring at dispensers).
The editorial change to Sec. 280.103(b)(1) will correct a
typographical error [i.e., “standpoint”] and clarify the trust fund
language.
The editorial change to the last paragraph of the Letter to the
Chief Financial Officer under Sec. 280.104(e) clarifies that no credit
enhancement of any type is permitted for revenue bonds, consistent with
the preamble to the 1988 UST regulation (58 FR 9033).
The editorial addition of Sec. 280.104(h) will make requirements
for the local government bond rating test under Sec. 280.104
consistent with requirements of the financial test under Sec.
280.95(g). EPA included this requirement for private owners and
operators in the 1988 UST regulation but inadvertently omitted it for
local government owners and operators.
The editorial change to the third paragraph of the Letter From
Chief Financial Officer under Sec. 280.107(d) will make the wording of
the letter consistent with the amount of coverage required in Sec.
280.107(b).
EPA defines and discusses permanent closure, not proper closure, in
the 1988 UST regulation. This clarified that in Sec. 280.113,
financial responsibility is required during temporary closure.
The update to Appendix III removes old dates and clarifies the
language in the statement for shipping tickets and invoices.
What issues related to this change does EPA request comment or
additional data on?
Are there other editorial corrections (such as
typographical errors or inaccurate references) EPA should make?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
F. Alternative Options EPA Considered
What options did EPA consider?
In developing today’s proposed regulatory changes (hereafter the
Preferred Option), EPA considered and evaluated variations of a subset
of the proposed regulatory requirements using two alternative options
(hereafter Option 1 and Option 2). The table below highlights
differences between our Preferred Option and Options 1 and 2. Some of
the proposed regulatory requirements do not vary across the options
(for example, notification of ownership changes is required in all
three). As a result, proposed regulatory changes discussed earlier in
the preamble, but not listed here, mean those changes are in effect in
all three options. Overall, Options 1 and 2 consist of regulatory
changes that are more and less stringent, respectively, than proposed
changes in the Preferred Option. After reviewing comments, EPA may use
one or more of these options in whole or in part to establish the final
UST regulation.
Comparison of Preferred Option and Options 1 and 2
—————————————————————————————————————-
Options
Proposed requirement —————————————————————————
Preferred 1 2
—————————————————————————————————————-
Walkthrough inspections…………. Monthly……………. Monthly……………. Quarterly.
Overfill prevention equipment tests. 3 year…………….. 1 year…………….. 3 year.
Spill prevention equipment tests…. 1 year…………….. Require replacement 1 year.
every 3 years (no
testing).
Secondary containment tests……… 3 year…………….. 1 year…………….. Not required.
Elimination of flow restrictors in Required…………… Required…………… No change.
vent lines for all new tanks and
when overfill devices are replaced.
Operability tests for release 1 year…………….. 1 year…………….. 3 year.
detection methods.
Change leak rate probabilities from Not required……….. Required…………… Not required.
95/5 to 99/1 (Pd/Pfa).
Eliminate groundwater and vapor 5-year phase-out……. Immediately………… No change.
monitoring as release detection
methods.
Remove deferrals for airport hydrant Regulate under Require them to meet Maintain deferrals.
fuel distribution systems and UST alternative release same release detection
systems with field-constructed detection requirements. requirements as
tanks. conventional USTs.
—————————————————————————————————————-
Below we explain Options 1 and 2, as well as our rationale for
each. (Note that EPA conducted a regulatory impact analysis (RIA) for
all three options. The results are discussed in the RIA document titled
Assessment Of The Potential Costs, Benefits, And Other Impacts Of The
Proposed Revisions To EPA’s Underground Storage Tank Regulations which
is available in the docket for this proposed regulation.)
What is EPA’s rationale for Option 1?
In Option 1, EPA considered requiring annual tests of overfill
prevention equipment and interstitial areas. EPA assessed the costs of
conducting annual tests for these components and decided instead to
propose overfill prevention equipment testing and interstitial
integrity testing every three years. This will reduce the overall
compliance cost burden on owners and operators without significantly
compromising benefits of these tests. When compared to other components
such as spill prevention equipment, both interstitial areas and
overfill prevention equipment are less likely to fail or be damaged.
Overfill prevention equipment is in the tank; interstitial areas for
tanks and piping are typically buried several feet underground. Spill
prevention equipment encounters frequent human and climate interaction,
making it prone to frequent damage and failure. Secondary containment
reduces the likelihood that a release into the environment will occur
because a leak is contained if a breach of the inner wall occurs. As a
result, less frequent periodic tests of overfill prevention equipment
and interstitial areas would adequately ensure the integrity and
functionality of equipment. In addition, a three year test requirement
for these two components will match the inspection cycle, allowing
inspectors to ensure tests are completed. Therefore,
[[Page 71754]]
testing overfill prevention equipment and interstitial areas every
three years is sufficient.
In Option 1, EPA considered mandatory replacement of spill
prevention equipment every three years, regardless of the spill
prevention equipment’s condition. As discussed earlier in the preamble,
various sources indicated spill prevention equipment is a major source
of confirmed releases and typically has a short lifespan. After EPA
evaluated the cost of requiring spill prevention equipment replacement
every three years, we determined the cost burden of this requirement on
owners and operators would be significant. While developing today’s
proposal, EPA made a conscious effort to limit removing or replacing
existing UST system equipment (for example, eliminating the use of ball
floats as a form of overfill prevention in new tanks instead of
requiring removal in existing tanks) to minimize impacts on owners and
operators, both in terms of reducing compliance costs and interrupting
daily operations. As a result, EPA instead is proposing annual tests of
spill prevention equipment. This balances the benefits of properly
functioning spill prevention equipment with the potential costs imposed
on owners and operators.
When considering changes to existing release detection
requirements, EPA evaluated the possibility of modifying the leak
probability of detection (Pd) from 95 percent to 99 percent and the
leak probability of false alarm (Pfa) from 5 percent to 1 percent. EPA
initially believed increasing the Pd rate for release detection
equipment performance would be a relatively low cost action that would
significantly increase identifying potential releases to the
environment. EPA also believed that decreasing the Pfa rate would be a
relatively low cost means of reducing the number of nuisance alarms
owners and operators experience. Because they would have a higher
confidence that alarms identify real problems, owners and operators
would be more likely to respond. Even though most equipment in use
today is capable of meeting more stringent probability rates, almost
all release detection devices would require some modification to
achieve these results. Even a relatively minor software upgrade could
be a significant cost to owners and operators. In addition, release
detection vendors would need to perform significant testing and
verification to determine whether their equipment would meet the new
Pd/Pfa rates. After considering the potential cost impacts, other
proposed requirements, such as training owners and operators and
requiring periodic walkthrough inspections, are sound alternatives for
environmental protection. Therefore, EPA instead is proposing periodic
operation and maintenance for existing release detection equipment to
ensure its proper operation.
EPA is proposing to eliminate groundwater and vapor monitoring as
permissible methods of release detection. In Option 1, EPA considered
an immediate ban of these two options as release detection methods
because inspectors told us these methods are unsuitable and should be
removed as soon as possible. Approximately 5 percent of UST systems use
groundwater or vapor monitoring for release detection, which means the
affected population of users is relatively small. Yet EPA recognizes
this would require retrofitting or replacing existing equipment. To
accommodate owners and operators and provide them with sufficient lead
time to meet this requirement, EPA today is proposing a five year phase
out for owners and operators to select, install, and begin using
another method of release detection.
In evaluating release detection methods suitable for UST systems
with field-constructed tanks and airport hydrant fuel distribution
systems, EPA considered requiring these tanks and systems comply with
the same release detection requirements conventional UST systems meet
under 40 CFR part 280, subpart D. After assessing costs, technical
feasibility, and potential impacts to facility operations, EPA decided
to propose a release detection regulatory structure specific to field-
constructed tanks and airport hydrant fuel distribution piping, per
Sec. 280.46 and Sec. 280.47, respectively. It is sometimes impossible
for very large tanks and piping volumes to achieve thresholds for
current release detection methods. When a threshold is achievable, the
time needed to reach it is often very long and impractical. The RIA
indicates the total annual costs to meet conventional release detection
requirements are $153 million, while total annual costs under the
proposed alternative release detection requirements are $23 million. As
a result, it is appropriate to propose release detection methods
specific to these systems. This will effectively protect the
environment by quickly detecting releases from these tanks and piping.
What is EPA’s rationale for Option 2?
In comparing costs with benefits of potential proposed changes, EPA
weighed different frequencies for walkthrough inspections and periodic
equipment testing. In Option 2, EPA assessed quarterly walkthrough
inspections and not requiring interstitial integrity testing as ways to
reduce potential cost impacts on owners and operators. While quarterly
walkthrough inspections would reduce costs to owners and operators, EPA
is taking the position that a period less frequent than monthly
walkthrough inspections would considerably reduce benefits. High
operator turnover, frequency of small leaks at dispensers and
submersible turbine sumps, and frequency of deliveries all contribute
to the need for monthly walkthrough inspections. With that in mind, EPA
today is proposing monthly walkthrough inspections so owners and
operators can consistently and routinely verify proper UST system
component performance. This will ensure problems are detected before a
release occurs or contaminates the environment.
The 1988 UST regulation does not require owners and operators to
ensure the integrity of secondarily contained areas, and EPA considered
not requiring periodic interstitial integrity testing. Because of the
Energy Policy Act secondary containment requirement for nearly all new
and replaced tanks and piping, all UST systems will eventually be
secondarily contained (including interstitial monitoring for release
detection) and we should require periodic interstitial integrity
testing to ensure leaks into secondary containment areas will be
properly detected and contained. As described in Option 1, EPA
considered annual interstitial integrity testing, but decided to
propose a three year testing requirement, which will lower cost impacts
of this requirement on owners and operators while retaining the
environmental benefit of testing.
To reduce total compliance costs of today’s proposal for owners and
operators, EPA considered allowing continued use of flow restrictors in
vent lines (that is, ball float valves) as an acceptable form of
overfill prevention equipment. After considering stakeholders’
concerns, EPA is taking the position that vent line flow restrictors
present problems for operability and safety reasons. As described
previously, EPA is proposing to eliminate ball float valves as overfill
prevention for all new tanks and when overfill prevention is replaced
in existing tanks.
EPA considered maintaining groundwater and vapor monitoring as
acceptable forms of release detection in Option 2. All tanks and piping
will
[[Page 71755]]
eventually use secondary containment with interstitial monitoring as
their release detection method, and as a result, groundwater and vapor
monitoring will eventually not be used. Stakeholders raised concerns
about these two release detection methods, more than other methods. For
both groundwater and vapor monitoring, releases travel through the
environment to sampling points before releases are discovered. Other
release detection methods provide more immediate detection of releases.
In addition, numerous concerns were raised about frequent
misapplications and improper designs of monitoring wells for these two
methods. Consequently, EPA today is proposing to phase out groundwater
and vapor monitoring as release detection methods. This will address
stakeholders’ concerns that UST systems using these two methods
represent an unacceptable risk to the environment.
V. Updates to State Program Approval Requirements
What is EPA proposing?
EPA is proposing these substantive changes to the 1988 state
program approval (SPA) regulation (40 CFR part 281) to make it
consistent with certain Energy Policy Act requirements and certain
proposed changes to the 1988 UST technical regulation (40 CFR part
280).
Section 281.30(a), Sec. 281.33(c)(2), and Sec.
281.33(d)(3)–require secondary containment for new or replaced tanks
and piping and under-dispenser containment for new motor fuel dispenser
systems for UST systems located within 1,000 feet of a potable drinking
water well or community water system, unless a state requires
manufacturer and installer financial responsibility according to Sec.
9003(i)(2) of the Solid Waste Disposal Act.
Section 281.30(b)–eliminate flow restrictors for new or
replaced overfill prevention.
Section 281.30(c)–add notification for ownership changes.
Section 281.31 and Sec. 281.33(b) and (c)–delete
upgrading requirements and eliminate phase-in schedule; add phase-in
schedule for previously deferred UST systems.
Section 281.32(e) and (f) and Sec. 281.33(a)(3)–add
periodic testing of spill and overfill prevention equipment, secondary
containment areas, and mechanical and electronic components; and
operation and maintenance walkthrough inspections, as well as
maintaining associated records.
Section 281.33(c)–limit use of monthly inventory control
in combination with tank tightness testing conducted every five years
for the first 10 years after the tank is installed or upgraded, if the
tank was installed prior to a state receiving SPA.
Section 281.33(e)–require hazardous substance USTs to
only use secondary containment with interstitial monitoring.
Section 281.34(a)(1)–add “interstitial space may have
been compromised” to suspected releases.
Section 281.37–eliminate phase-in requirement for
financial responsibility.
Section 281.39–require operator training according to
Sec. 9010 of the Solid Waste Disposal Act.
Section 281.41(a)–require states to have delivery
prohibition in accordance with Sec. 9012 of the SWDA.
Section 281.60–add requirement for the Administrator to
initiate proceedings to withdraw program approval when an approved
program fails to submit a revised application within three years of 40
CFR part 281 changes that require a program revision, which will follow
the proceedings procedures from the 1988 SPA regulation.
EPA is not proposing to add the proposed compatibility requirement
changes (see Sec. 280.32) to 40 CFR part 281.
EPA is also proposing these technical changes to the SPA
regulation.
Section 281.10–change “subpart” to “part”.
Section 281.11(c), Sec. 281.12(b)(2), Sec. 281.20(d),
Sec. 281.21(a)(2), Sec. 281.23, Sec. 281.50(a), and formerly Sec.
281.51–eliminate interim approval.
Section 281.12(a)(2)–change “Indian lands” to “Indian
country”.
Formerly Sec. 281.32(e)–eliminate requirement to
maintain upgrade records.
Formerly Sec. 281.38–eliminate reserved section for
financial responsibility for USTs containing hazardous substances.
Move Sec. 281.39 to Sec. 281.38–Lender Liability.
Section 281.51, formerly Sec. 281.52–add requirement for
approved states to submit a revised application within three years of
40 CFR part 281 changes that require a program revision.
Section 281.61–move Sec. 281.60(b) to Sec.
281.61(b)(2).
Why is EPA proposing this change? What background information is
available about this change?
The 1988 SPA regulation in 40 CFR part 281 sets criteria state UST
programs must meet to receive EPA’s approval to operate in lieu of the
federal UST program. The 1988 SPA regulation sets performance criteria
states must meet to be considered no less stringent than the 1988 UST
regulation (hereafter 40 CFR part 280) and provides requirements for
states to have adequate enforcement. It also details the components of
a SPA application.
EPA is proposing certain changes to the 1988 SPA regulation to make
it consistent with today’s proposed changes to the 1988 UST technical
regulation. By doing so, EPA will require states to adopt UST technical
regulation changes when final, in order to obtain or retain SPA. EPA is
proposing to keep the general format of the 1988 SPA regulation. We are
not proposing to make the SPA regulation as explicit or prescriptive as
the UST technical regulation. Finally, EPA is proposing technical
corrections and adding a deadline for state program revisions whenever
EPA makes substantive changes to the SPA regulation.
Addressing Energy Policy Act Requirements and Proposed 40 CFR Part 280
Changes
How SPA Works
EPA’s proposed UST technical regulation changes and Energy Policy
Act requirements primarily impact the 1988 SPA regulation in 40 CFR
part 281, Subpart C–Criteria for No Less Stringent. Thirty-six states,
plus the District of Columbia and Puerto Rico, have state program
approval and run their own underground storage tank programs in lieu of
the federal program. To ensure these jurisdictions, and any other
states or territories obtaining SPA, adopt the 40 CFR part 280 changes
when final, EPA must update Subpart C. To continue providing states
with flexibility and not disrupt current state programs, EPA is
proposing to revise the SPA regulation to make it consistent with, but
not identical to, the 40 CFR part 280 changes. Instead, EPA is
proposing changes to the SPA regulation in a less prescriptive manner
than in the changes in 40 CFR part 280. EPA decided to continue this
successful approach to implement the UST SPA program.
The 1988 SPA regulation developed no less stringent criteria in the
form of objectives.\73\ EPA is continuing this format so that, taken as
a whole, state programs will be no less stringent than the federal
requirements, even though they may deviate slightly from what is
explicitly required in 40 CFR part 280.
[[Page 71756]]
For example, Sec. 281.30 covers the no less stringent requirement for
new UST system design, construction, and installation; it corresponds
to Sec. 280.20 of the UST technical regulation, but is much less
explicit about requirements.
—————————————————————————
\73\ Federal Register, Vol. 53, No. 185, September 23, 1988,
page 37216.
—————————————————————————
According to Sec. 281.30 and to receive SPA, a state must require
all new UST systems “* * * [b]e designed, constructed, and installed
in a manner that will prevent releases for their operating life due to
manufacturing defects, structural failure, or corrosion * * *”. In
contrast, Sec. 280.20 is much more explicit about how tank owners and
operators ensure their tanks and piping prevent releases. It states
what is required to prevent releases and provides codes of practice to
comply. Although Sec. 281.30 is less explicit, it nonetheless ensures
owners and operators in approved states install UST systems that
prevent releases and provides states flexibility in achieving that
goal.
Proposed Goal Oriented Changes
EPA is proposing these goal oriented changes to Subpart C–Criteria
for No Less Stringent. By the term “goal oriented changes,” EPA means
changes in which states have some flexibility as to how they will meet
the goals of the particular SPA regulation section. They reflect
certain 40 CFR part 280 proposed changes.
Sec. 281.30(c)–add notification for ownership changes.
Sec. 281.31 and Sec. 281.33(b)–add a phase-in schedule
for upgrading previously deferred UST systems.
Sec. 281.32(e) and (f) and Sec. 281.33(a)(3)–add
periodic testing of spill and overfill prevention equipment, secondary
containment areas, and mechanical and electronic components; and
operation and maintenance walkthrough inspections, as well as
maintaining associated records.
EPA’s proposed ownership change notification requires anyone who
assumes ownership of an UST system to notify the implementing agency
within 30 days of assuming ownership and specifies what notification
must include. Our proposed SPA regulation change in Sec. 281.30(c) is
much less prescriptive and indicates states require owners and
operators to “* * * adequately notify the implementing state agency
within a reasonable timeframe when assuming ownership of an UST system
using a form designated by the state agency.” This provides states
some flexibility in complying, including allowing them to continue
relying on an annual tank registration program to meet this
requirement. This is a reasonable way to ensure states know who owns
USTs in their jurisdiction. EPA does not have an annual registration
program, so we specify a timeframe in Sec. 280.22 because we want to
know who owns tanks in jurisdictions where we are the implementing
agency.
In Sec. 280.21, EPA is proposing that previously deferred
wastewater treatment tank systems, airport hydrant fuel distribution
systems, and UST systems with field-constructed tanks meet specific
upgrade requirements. This is one way of achieving the goal states need
to meet in Sec. 281.31. In Sec. 281.31, states will be required to
ensure tanks are upgraded to prevent releases due to corrosion, spills,
and overfills or be permanently closed. These more general requirements
are sufficient for a state program to protect human health and the
environment because they require UST systems to “* * * prevent
releases for their operating life * * *”. EPA finds it is also
adequate to upgrade previously deferred systems to this standard.
Additionally, EPA is proposing previously deferred UST systems be
upgraded within three years of a state submitting its SPA application
for approval or revision. In the past, EPA experienced problems with
requiring states to have a particular requirement by a certain date in
order to receive SPA. States applying for SPA after a deadline passed
often have difficulty implementing or obtaining a retroactive
requirement. A retroactive or deadline leads to complications with
little added benefit.
In today’s proposal, EPA is adding various operation and
maintenance requirements. In 40 CFR part 280, EPA is proposing specific
frequencies and procedures for testing spill and overfill prevention
equipment, secondary containment integrity testing, release detection
equipment testing, and operation and maintenance walkthrough
inspections. In Sec. 281.32, EPA is proposing states require these
tests in a manner and frequency that ensures proper functionality of
equipment, includes proper operation and maintenance of the UST system,
and prevents releases for the life of the equipment and UST system.
This approach allows states who have these requirements, despite
different frequencies or manners, to receive SPA, as long as their
requirements sufficiently ensure properly functioning non-releasing UST
systems. EPA is also proposing to update Sec. 281.32(g) by adding
these tests to the recordkeeping requirements of SPA.
Proposed Energy Policy Act Changes
In today’s SPA regulation proposal, EPA is addressing Energy Policy
Act requirements more generally than in today’s UST technical
regulation proposal, yet they are slightly different than the goal
oriented approach above. The Energy Policy Act amends the Solid Waste
Disposal Act and requires states that receive federal Subtitle I money
to adopt operator training requirements, delivery prohibition, and
additional measures to protect groundwater from contamination. In the
additional measures to protect groundwater provision, states must meet
either secondary containment and interstitial monitoring for new or
replaced tanks and piping within 1,000 feet of a potable drinking water
well or community water system, or manufacturer and installer financial
responsibility and installer certification. The secondary containment
requirement includes under-dispenser containment on any new motor fuel
dispenser system within 1,000 feet of a potable drinking water well or
community water system.
EPA developed guidelines for states to implement Energy Policy Act
requirements; many states and territories implemented the Energy Policy
Act requirements according to these guidelines. In order to establish
similar requirements in Indian country and in states and territories
that do not adopt Energy Policy Act requirements, EPA is adding
secondary containment and operator training to today’s 40 CFR part 280
proposal. In proposing those requirements, EPA does not want to
supersede programs states developed to meet Energy Policy Act
requirements. Requiring states to alter newly implemented provisions
would be a disservice to them, as well as UST owners and operators.
Therefore, EPA is proposing to address in today’s SPA regulation
proposal the secondary containment, manufacturer and installer
financial responsibility and installer certification, delivery
prohibition, and operator training requirements that appear in the
Energy Policy Act. So, states already meeting these Energy Policy Act
requirements need not change their programs to receive SPA.
EPA is proposing additional measures to protect groundwater and
operator training requirements in Subpart C (Sec. 281.22(d)(3), Sec.
281.30(a), Sec. 281.33(c)(2), and Sec. 281.39). Delivery prohibition
is in Subpart D–Adequate Enforcement of Compliance (Sec. 281.41(a)).
Because delivery prohibition is an enforcement tool, EPA is proposing
to require states have authority to prohibit deliveries
[[Page 71757]]
according to Energy Policy Act, rather than make this a no less
stringent requirement.
EPA is not proposing to add delivery prohibition to 40 CFR part 280
because delivery prohibition is primarily an enforcement tool for
implementing agencies; it is not a requirement for owners and
operators. Because the Energy Policy Act gives EPA clear delivery
prohibition enforcement authority, we do not need to add delivery
prohibition to the UST technical regulation. However, the only way to
ensure states have that same authority is to require states to have
authority to implement delivery prohibition as a prerequisite for SPA,
as proposed in Sec. 281.41(a).
Proposed Specific Changes
EPA is proposing specific changes below to Subpart C–Criteria for
No Less Stringent. They reflect proposed 40 CFR part 280 changes. This
specific approach is the only way for states to adopt this group of
proposed changes. The goal of these proposed sections remains intact,
yet the specific changes ensure states adopt the 40 CFR part 280
changes when final, and are able to receive SPA.
Sec. 281.30(b)–eliminate flow restrictors for new or
replaced overfill prevention
Sec. 281.31–delete upgrading requirements
Sec. 281.33(c)–limit use of monthly inventory control in
combination with tank tightness testing conducted every five years for
the first 10 years after the tank is installed or upgraded, if the tank
was installed prior to a state receiving SPA
Sec. 281.33(e)–require hazardous substance USTs to only
use secondary containment with interstitial monitoring
Sec. 281.34(a)(1)–add “* * * interstitial space may
have been compromised * * *” to suspected releases
Sec. 281.37–eliminate phase-in requirement for financial
responsibility
EPA is proposing in Sec. 281.30(b) states wishing to receive SPA not
allow installation of flow restrictors (commonly referred to as ball
floats) in vent lines for overfill protection. The existing goal of
Sec. 281.30(b) is for states to require that UST systems have spill
and overfill prevention equipment. In the proposed language, EPA
maintains the overall goal to prevent spills and overfills; however,
owners and operators can no longer install ball floats to achieve that
goal.
The deadlines for upgrades and for owners and operators to obtain
financial responsibility have passed. As a result, EPA is proposing to
eliminate these UST technical regulation deadlines in the SPA
regulation. In Sec. 281.31 and Sec. 281.33(b), EPA is removing UST
upgrades, except for previously deferred USTs. In Sec. 281.37, we are
eliminating the financial responsibility phase-in schedule. Please note
EPA is proposing states allow upgrades prior to submitting their
approval or revision applications for SPA, rather than only until
December 22, 1998. EPA is taking this action due to states’ previous
problems with implementing a retroactive requirement when applying for
SPA after the upgrade deadline.
In Sec. 281.33(c), EPA is proposing monthly inventory control in
combination with tank tightness testing conducted every five years for
the first 10 years after a tank is installed or upgraded, only if a
tank was installed prior to a state receiving SPA. This reflects a
proposed change in 40 CFR part 280 and avoids another problem in the
1988 SPA regulation. First, EPA is proposing to eliminate this method.
Second, EPA is proposing to tie the date for eliminating this method to
a state’s submission of its SPA application for approval or revision.
As discussed earlier, EPA is taking the position that it is better to
tie deadlines in the SPA regulation to states’ submission of SPA
applications, rather than specific dates.
In today’s notice, EPA is proposing states wishing to receive SPA
will no longer be able to allow installation of non-secondarily
contained hazardous substance UST systems. This is consistent with
EPA’s proposed change in Sec. 280.42(e); an equivalent and specific
proposed change to the SPA regulation is the only way to ensure states
adopt it. For consistency with proposed changes in the UST technical
regulation and to ensure states wishing to receive SPA adopt this
change, in Sec. 281.34(a)(1), EPA is proposing to add “* * *
interstitial space may have been compromised * * *” to suspected
releases conditions.
Proposed UST Technical Regulation Changes Not Addressed in Proposed SPA
Regulation
EPA is not proposing to address in the proposed SPA regulation
(Sec. 281.32) the methods for determining compatibility. Today’s
proposed compatibility proposal in Sec. 281.32 allows owners and
operators to use any method for determining compatibility approved by
an implementing agency, as long as the method is no less protective of
human health and the environment. It is unnecessary to change the SPA
regulation because the proposed UST technical regulation in Sec.
281.32 will provide states with discretion to ensure compatibility.
Also, the proposed UST technical regulation change delineates how
owners and operators can demonstrate they are storing substances in UST
systems made of or lined with materials that are compatible with the
substances stored. This is more prescriptive than the general format of
the SPA regulation, and thus is not appropriate for the SPA regulation.
Addressing SPA Revision Process
EPA is proposing to add a requirement for approved states to submit
a revised application within three years of SPA regulation changes that
require a program revision under Sec. 281.51. Approved states are
required to revise their programs and submit revised applications
whenever the federal program changes or EPA’s Administrator requests a
revised application based on changes to a state’s program. Given
today’s proposed significant changes, it is necessary to develop a
timeframe which will ensure approved states meet SPA regulation changes
in a reasonable time.
After discussions with states and reviews of other EPA programs,
EPA is taking the position that three years is a reasonable time for
approved states to submit revised applications resulting from SPA
regulation changes. Also, EPA will work with states to ensure they meet
this three-year deadline. EPA’s proposed language in Sec. 281.51 is
intended only to require a state program revision within three years if
EPA makes changes that necessitate state program changes. For instance,
EPA changes to Subpart C–Criteria for No Less Stringent would likely
require a state program revision, unless EPA is only making minor
editorial changes.
While most states will be able to meet the three-year deadline for
program revision, EPA is aware that some states may need additional
time. EPA will notify states that have not revised their program within
three years. EPA will ask those states to demonstrate their level of
effort, show progress to date, and provide dates when they will achieve
major milestones for revising their programs and submitting a revised
application. EPA will consider these factors before initiating program
approval withdrawal.
Additional Proposed Changes to SPA Regulation
EPA is proposing these additional SPA regulation changes; they are
not a direct result of proposed 40 CFR part 280 changes. Rather, the
majority are corrections to the 1988 SPA regulation.
[[Page 71758]]
Sec. 281.10–change “subpart” to “part”
Sec. 281.11(c), Sec. 281.12(b)(2), Sec. 281.23, and
formerly Sec. 281.51–eliminate interim approval
Sec. 281.12(a)(2)–change “Indian lands” to “Indian
country”
Sec. 281.32(e)–eliminate requirement to maintain upgrade
records
Formerly Sec. 281.38–eliminate reserved section for
financial responsibility for USTs containing hazardous substances
Move Sec. 281.39 to Sec. 281.38–Lender Liability
Sec. 281.61–move Sec. 281.60(b) to Sec. 281.61(b)(2)
The SPA regulation incorrectly uses the term subpart in Sec.
281.10, and therefore EPA is proposing to correctly change this to
part. EPA has been using the term Indian country instead of Indian
lands for years. We are proposing to incorporate this term, which does
not alter the meaning, in the SPA regulation. EPA is proposing to
remove the reserved financial responsibility for USTs containing
hazardous substances section (formerly Sec. 281.38); move the lender
liability section from Sec. 281.39 to Sec. 281.38; and include the
new operator training section in Sec. 281.39. Because operator
training needs to be in subpart C, which has no remaining section
numbers, this eliminates the need to renumber subpart D. Also, the
reserved financial responsibility for hazardous substances section is
unnecessary since there is no corresponding requirement in 40 CFR part
280.
EPA is proposing to delete the interim SPA approval language (in
Sec. 281.11(c) and Sec. 281.51). In more than 20 years of the UST
program, no state has sought interim approval; it is more beneficial to
receive full approval all at once, rather than in steps. Also, because
36 states plus the District of Columbia and Puerto Rico have SPA,
interim SPA approval is unnecessary at this time.
EPA is proposing to eliminate the requirement to maintain upgrade
records for the operational life of an UST facility. This requirement
in Sec. 281.32(e) of the 1988 SPA regulation does not exist in 40 CFR
part 280. In addition, EPA is proposing to no longer allow upgrades.
EPA is also proposing to move Sec. 281.60(b) to Sec. 281.61(b).
This paragraph explains the procedure EPA will follow to withdraw
approval. This paragraph is better suited for Sec. 281.61, which
explains the procedures for withdrawing approval, as opposed to Sec.
281.60, which explains the criteria for withdrawal.
What issues related to this change does EPA request comment or
additional data on?
EPA requests comments on:
Is three years an appropriate timeframe for requiring a
SPA state to submit a revised application? Please provide
justification.
Should EPA address the proposed procedures for determining
compatibility of Sec. 280.32 into the SPA regulation?
Please provide reasoning or justification if you disagree with or
propose something different from EPA’s proposal.
VI. Overview of Estimated Costs and Benefits
EPA prepared an analysis of the potential incremental costs and
benefits associated with this action. This analysis is contained in the
regulatory impact analysis (RIA) document titled Assessment of the
Potential Costs, Benefits, and Other Impacts of the Proposed Revisions
to EPA’s Underground Storage Tank Regulations, which is available in
the docket for this proposal. RIA estimated regulatory implementation
and compliance costs, and benefits for three regulatory options as
described above in section V, subsection F. On an annualized basis, the
estimated regulatory compliance costs for the three options in today’s
proposed action are $210 million (Preferred Option), $520 million
(Option 1), and $130 million (Option 2). Separately, this analysis
assessed the potential benefits of the proposed regulation. As
discussed in the RIA, a substantial portion of the beneficial impacts
associated with the proposed regulation are avoided cleanup costs as a
result of preventing releases and reducing the severity of releases.
Today’s action is expected to have annual cost savings related to
avoided costs of $300-$740 million per year under the Preferred Option,
$310-$770 million per year under Option 1, and $110-$590 million per
year under Option 2.
We recognize that the estimated number of avoided releases and
releases reduced in severity is based on expert judgment. Moreover, the
cost savings estimates reflect cost data from only a small number of
state programs (e.g., such as New Hampshire). We solicit public input
on the accuracy of the expected reduction in releases due to the
proposed requirements provided by the experts, as well as remediation
cost data for releases of different sizes and types. Please provide
relevant data and studies on this topic. EPA solicits comment on the
methodology and results from the RIA, as well as any data that the
public feels would be useful in a revised analysis including
specifically cost estimates for remediation and EPA’s methods for
estimating prevented releases under the proposed rule.
VII. Statutory and Executive Orders
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an “economically significant
regulatory action” because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and EO 13563 (76 FR 3821, January 21, 2011) and any changes made
in response to OMB recommendations have been documented in the docket
for this action.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 1360.11.
Today’s proposed regulation contains mandatory information
collection requirements. The labor burden and associated costs for
these requirements are estimated in the ICR supporting statement for
today’s proposed action. The supporting statement identifies and
estimates the burden for each of the changes to the regulations that
include recordkeeping or reporting requirements. Proposed changes
include: Adding secondary containment requirements for new and replaced
tanks and piping; adding operator training requirements; adding
periodic operation and maintenance requirements for UST systems;
removing certain deferrals; adding new release prevention and detection
technologies; and updating state program approval requirements to
incorporate these new changes.
Based on the same data and cost calculations applied in the
Regulatory Impact Assessment (RIA) for today’s action, but using the
burden estimations for ICRs, the ICR supporting statement estimates an
average annual labor hour burden of 2.3 million hours and $135 million
for the proposed regulation. One
[[Page 71759]]
time capital and hourly costs are included in these estimates based on
a three year annualization period. Burden is defined at 5 CFR
1320.3(b). The total universe of respondents for this ICR is comprised
of 223,558 facilities and 56 states and territories.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA’s
regulations in 40 CFR are listed in 40 CFR Part 9.
To comment on the Agency’s need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-UST-
2011-0301. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after November 18, 2011, a comment to OMB is best assured of having its
full effect if OMB receives it by December 19, 2011. The final rule
will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today’s rule on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration’s (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today’s proposed
regulation on small entities, EPA certifies that this action will not
have a significant economic impact on a substantial number of small
entities. The small entities directly regulated by this proposed rule
are small businesses and small governmental jurisdictions. We have
determined that at most 1 percent of potentially affected small firms
in the retail motor fuel sector (NAICS 447) will experience an impact
over 1 percent of revenues but less than 3 percent of revenues. No
small firms have impacts above 3 percent of revenues. In addition, we
estimate that no small governmental jurisdictions would be impacted at
1 percent or 3 percent of revenues. This certification is based on the
small entities analysis contained in the RIA for today’s proposal.
Although this proposed regulation will not have a significant
economic impact on a substantial number of small entities, EPA
nonetheless tried to reduce the impact of this regulation on the
regulated community in general, which is primarily comprised of small
businesses. EPA conducted extensive outreach in order to determine
which changes to make to the 1988 regulations. EPA worked with
representatives of owners and operators and reached out specifically to
small businesses. In addition, EPA considered the impacts of each
potential regulatory change and worked to limit changes that required
retrofits, since changes requiring retrofits would place a high
financial burden on small businesses. Finally, EPA maintained numerous
options for compliance in order to provide small entities with as much
flexibility as possible.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This rule
contains a Federal mandate that may result in expenditures of $100
million or more for the private sector in any one year. Accordingly,
EPA prepared under section 202 of the UMRA a written statement (an
appendix to the RIA), which is summarized below.
As estimated in the RIA, on an annualized basis, the total
estimated regulatory compliance costs for the three options in today’s
proposed action are $210 million (Preferred Option), $520 million
(Option 1), and $130 million (Option 2). Of this amount, annualized
costs to state/local governments total $9 million under the Preferred
Option, $19 million under Option 1, and $6 million under Option 2.
These costs consist of estimated regulatory compliance costs for state/
local governments that currently own or operate UST systems and
annualized costs of $120,000 for states to implement the proposed rule.
EPA estimates total annualized costs to owners and operators of
tribally owned UST systems are $0.7 million under the Preferred Option.
The estimated annualized cost to the private sector range is
approximately $180 million under the Preferred Option, $350 million
under Option 1, and $120 million under Option 2. While the proposed
regulation may result in expenditures of $100 million or more for the
private sector, thereby triggering section 202 of the UMRA, this rule
is not subject to the requirements of section 204 of UMRA because EPA
does not believe state, local, and tribal governments will incur
aggregate costs of over $100 million per year.
Consistent with section 205, EPA identified and considered a
reasonable number of regulatory alternatives. Today’s proposed
regulation identifies a number of regulatory options, and the RIA
estimates the annual cost across the three considered options may range
between $130 million and $520 million. Section 205 of the UMRA requires
federal agencies to select the least costly or most cost-effective
regulatory alternative unless the Agency publishes with the final rule
an explanation of why such alternative was not adopted. As discussed
earlier in the preamble, as part of EPA’s deliberative process for
today’s proposed rule, EPA considered and evaluated variations of a
subset of the proposed requirements using two alternative options
(Options 1 and 2). The preferred option provides the greatest
difference between beneficial impact and costs of any of the options.
The requirements proposed under the Preferred Option provide for
greater protection of human health and the environment and better
addresses stakeholder concerns, compared to the lower cost and proposed
requirements of Option 2.
This rule is not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments.
[[Page 71760]]
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in EO 13132. Under the proposed rule, total costs to all
affected states and local governments (including direct compliance
costs, notification costs, and state program costs) are approximately
$9 million. This is not considered to be a substantial compliance cost
under federalism requirements. Thus, EO 13132 does not apply to this
action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed action
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
EPA concluded that this action will have tribal implications to the
extent that tribally-owned entities with UST systems on Indian country
would be affected. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt tribal law. Total
annualized costs for tribally-owned UST systems in Indian country are
estimated to be $0.7 million.
EPA consulted with tribal officials early in the process of
developing this proposed regulation to welcome meaningful and timely
input into its development. EPA began its consultation with Tribes on
possible changes to the UST regulation shortly after the passage of the
Energy Policy Act of 2005. The Energy Policy Act directed EPA to
coordinate with Tribes to develop and implement an UST program strategy
in Indian country to supplement the program’s existing approach. EPA
and Tribes worked collaboratively to develop a tribal strategy.
There are certain key provisions of the Energy Policy Act that
apply to states receiving federal Subtitle I money, but do not apply in
Indian country. Nonetheless, EPA’s goal is to establish in Indian
country similar federal requirements to these Energy Policy Act
provisions as an important step in achieving more consistent program
results in release prevention. Both EPA and Tribes recognize the
importance of having policies that can help ensure parity in program
implementation between states and in Indian country.
In addition to our early consultation with Tribes, EPA also reached
out again to Tribes as we started the official rulemaking process and
throughout the development of this proposed regulation. EPA sent
letters to leaders of over 500 Tribes as well as to Tribal regulatory
staff to invite their participation in the development of the
regulation. EPA heard from both Tribal officials who work as regulators
as well as representatives of owners and operators of UST systems in
Indian country. The Tribal regulators raised concerns about ensuring
parity of environmental protection between states and Indian country.
EPA finds that today’s proposed changes to the UST regulation are
needed to ensure parity between UST systems in states and in Indian
country. This regulation is also needed to ensure equipment is not just
installed but is working properly to protect the environment from
potential releases.
EPA specifically solicits additional comment on this proposed
action from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health And Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because the Agency does not believe the environmental health
risks or safety risks addressed by this action present a
disproportionate risk to children. EPA’s risk assessment for this
proposed rulemaking examines potential impacts to groundwater and
subsequent chemical transport, exposure and risk. While the risk
assessment did not specifically measure exposure to children, the
general exposure scenarios reflect four exposure pathways that have the
most significant potential for human health impacts. These are: (1)
Ingestion of chemicals in groundwater that have migrated from the
source area to residential drinking water wells; (2) inhalation of
volatile chemicals when showering with contaminated groundwater; (3)
dermal contact with chemicals while bathing or showering with
contaminated groundwater; and (4) inhalation of vapors that may migrate
upward from contaminated groundwater into overlying buildings.
Adults and children can potentially be exposed through all four
exposure pathways considered. For adults, inhalation of vapors while
showering is the most significant exposure pathway; for children,
ingestion is the most significant pathway, because they are assumed to
take baths and are, therefore, not exposed via shower vapor inhalation.
As a result of the longer exposure from showering, adults are the more
sensitive receptors for cancer effects compared to children,
particularly those under five who are assumed to take more baths and
fewer showers.\74\
—————————————————————————
\74\ United States Department of Health and Human Services,
Public Health Service, Agency for Toxic Substances and Disease
Registry, “Toxicological Profile for Polycyclic Aromatic
Hydrocarbons,” August 1995.
—————————————————————————
While the screening level risk assessment is limited in that it
only examines benzene impacts, the proposed rule would likely reduce
other contaminant exposures to children in a similar pattern and would
not create significant adverse impacts on children’s health.
The screening level population analysis performed to examine EO
12898 shows that children under 18 years and children under five years
are slightly less likely to be found in the vicinity of UST facilities.
This suggests that the impacts of the proposed rule will not have a
disproportionate impact on children’s health. Moreover, because all
regulatory options proposed today would increase regulatory stringency
and reduce the number and size of releases, EPA does not expect the
proposed regulation to have any disproportionate adverse impact on
children. The public is invited to submit comments or identify peer-
reviewed studies and data that assess effects of early life exposure to
petroleum products.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a “significant energy action” as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. The following summarizes EPA’s
assessment of the energy impacts that the proposed rulemaking will have
on energy supply, distribution, and use.
[[Page 71761]]
The proposed regulation consists of additional regulatory
requirements that apply to the owners and operators of underground
storage tanks. To the extent that the proposed regulation affects the
motor fuel sector, it does so at the retail motor fuel sales level,
rather than the level of refineries or distributors, who supply the
retail stations with motor fuel. Therefore, we do not expect the
proposed regulation to have a significant adverse impact on energy
supply or distribution.
The additional regulatory requirements contained in the proposed
regulation may increase compliance costs for owners and operators of
retail motor fuel stations. If owners and operators of retail motor
fuel stations affected by the proposed regulation can pass through
their increased compliance costs, energy use may be affected via higher
energy prices caused by the proposed regulation. However, we do not
expect a significant change in retail gasoline prices to result from
this proposed regulation for the following reasons: (1) Economic
analyses of retail fuel prices have revealed that demand for gasoline
is highly sensitive to price (elastic) within localized geographic
areas. As a result, if one motor fuel retailer in an area passes
through increases in compliance costs by increasing gasoline prices,
while another does not, the one with higher prices is at a competitive
disadvantage; and (2) retail motor fuel stations often have associated
stores and/or services, such as car washes, repair operations, and
convenience outlets, on which they can more successfully pass through
increases in compliance costs.
Furthermore, when considered in the context of total fuel
consumption in the United States, the proposed rule would represent
only a very small fraction of motor fuel prices even if it was fully
passed through to consumers. According to the Bureau of Transportation
Statistics, the United States consumed approximately 171 billion
gallons of motor fuel (including gasoline and diesel) in 2008 at an
average price of $3.27.\75\ This implies that U.S. consumers spent $558
billion in 2008 on motor fuel. The overall cost of the proposed
regulation is approximately $210 million, less than one-tenth of 1
percent of the amount spent by end users on motor fuel in 2008. In
comparison, an increase of 1 cent in the average price of motor fuel in
2008 would have increased the total cost to consumers by approximately
$1.7 billion. Given these circumstances, the proposed regulations
should not have a measurable impact on retail motor fuel prices. As a
result, EPA does not expect the proposed regulations to have a
significant adverse impact on energy prices or use.
—————————————————————————
\75\ The 2008 prices per gallon for all grades of retail motor
gasoline and No. 2 diesel fuel (all concentrations of sulfur) were
$3.32 and $3.15, respectively, as reported by the Bureau of
Transportation Statistics in Table 3-8: Sales Price of
Transportation Fuel to End-Users in National Transportation
Statistics 2010 (at http://www.bts.gov/publications/national_transportation_statistics/pdf/entire.pdf). We weight these prices
according to prime supplier sales volumes in 2009 published by the
Energy Information Administration, which summed to 362,798.5
thousands of gallons per day for gasoline and 132,489.3 thousands of
gallons per day for all grades of diesel fuel (at http://www.eia.gov/dnav/pet/pet_cons_prim_dcu_nus_a.htm).
—————————————————————————
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (“NTTAA”), Public Law 104-113 (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed regulation involves technical standards. EPA is
proposing to use voluntary consensus standards, called codes of
practice identified in section E-2 of the preamble. These codes of
practice meet the objectives of today’s proposed regulation by
establishing criteria for the design, construction, and maintenance of
underground storage tanks.
EPA welcomes comments on this aspect of the proposed regulation
and, specifically, invites the public to identify potentially
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
To inform us about the socioeconomic characteristics of communities
potentially affected by the proposed regulation, EPA conducted a
screening analysis to examine whether there is a statistically
significant disparity between socioeconomic characteristics of
populations located near UST facilities and those that are not.\76\ As
discussed in the RIA, the results indicate that minority and low-income
populations are slightly more likely to be located near UST facilities.
An environmental justice analysis would then require an assessment of
whether there would be disproportionate and adverse impacts on these
populations. However, because all regulatory options considered in this
proposed regulation would increase regulatory stringency and reduce the
number and size of releases, EPA does not anticipate the proposed
regulation to have any disproportionately high and adverse human health
or environmental effects on these minority or low-income communities or
any community.
—————————————————————————
\76\ Note that the affected populations identified in the
screening analysis summarized here are simply defined by specific
demographics surrounding UST locations. These affected populations
are not necessarily equivalent to communities that others have
specifically identified as “environmental justice communities.”
—————————————————————————
List of Subjects
40 CFR Part 280
Environmental protection, Administrative practice and procedures,
Confidential business information, Groundwater, Hazardous materials,
Petroleum, Reporting and recordkeeping requirements, Underground
storage tanks, Water pollution control, Water supply.
40 CFR Part 281
Environmental protection, Administrative practice and procedures,
Hazardous substances, Petroleum, State program approval, Underground
storage tanks.
Dated: October 25, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, Title 40 Chapter I of Code
of Federal Regulations is proposed to be amended as follows.
[[Page 71762]]
PART 280–TECHNICAL STANDARDS AND CORRECTIVE ACTION REQUIREMENTS
FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS (UST)
1. The authority citation for part 280 is revised to read as
follows:
Authority: 42 U.S.C. 6912, 6991, 6991(a), 6991(b), 6991(c),
6991(d), 6991(e), 6991(f), 6991(g), 6991(h), 6991(i).
2. Revise Sec. 280.10 to read as follows:
Sec. 280.10 Applicability.
(a) The requirements of this part apply to all owners and operators
of an UST system as defined in Sec. 280.12 except as otherwise
provided in paragraphs (b) and (c) of this section.
(1) Previously deferred UST systems. UST systems previously
deferred from subparts B, C, D, E, G and H (airport hydrant fuel
distribution systems, UST systems with field-constructed tanks, and
wastewater treatment tank systems) and UST systems previously deferred
from subpart D (UST systems that store fuel solely for use by emergency
power generators) must begin meeting the requirements of this part as
follows:
(i) UST systems installed on or before [effective date of rule]
must meet the schedule in the following table.
————————————————————————
Type of UST system Subpart or Section Effective date
————————————————————————
UST systems that store fuel D………………. [1 Year after
solely for use by emergency effective date of
power generators. rule].
————————————————————————
Airport hydrant fuel B (except Sec. [3 Years after
distribution systems; UST 280.22) and C. effective date of
systems with field- D………………. rule].
constructed tanks; and Sec. 280.22 of See the phase in
wastewater treatment tank subpart B, E, G and schedule in Sec.
systems. H. 280.40(c).
[effective date of
rule].
————————————————————————
(ii) UST systems installed after [effective date of rule] must meet
all requirements at installation.
(2) Any UST system listed in paragraph (c) of this section must
meet the requirements of Sec. 280.11.
(b) The following UST systems are excluded from the requirements of
this part:
(1) Any UST system holding hazardous wastes listed or identified
under Subtitle C of the Solid Waste Disposal Act, or a mixture of such
hazardous waste and other regulated substances.
(2) Any wastewater treatment tank system that is part of a
wastewater treatment facility regulated under Section 402 or 307(b) of
the Clean Water Act.
(3) Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic lift tanks and electrical
equipment tanks.
(4) Any UST system whose capacity is 110 gallons or less.
(5) Any UST system that contains a de minimis concentration of
regulated substances.
(6) Any emergency spill or overflow containment UST system that is
expeditiously emptied after use.
(c) Deferrals. Subparts B, C, D, E, and G of this part do not apply
to:
(1) Aboveground tanks associated with:
(i) Airport hydrant fuel distribution systems; and
(ii) UST systems with field-constructed tanks;
(2) Any UST systems containing radioactive material that are
regulated under the Atomic Energy Act of 1954 (42 USC 2011 and
following); and
(3) Any UST system that is part of an emergency generator system at
nuclear power generation facilities regulated by the Nuclear Regulatory
Commission under 10 CFR part 50.
3. In Sec. 280.11 revise the Note at the end of the section to
read as follows:
Sec. 280.11 Interim prohibition for deferred UST systems.
* * * * *
Note to paragraphs (a) and (b): The following codes of practice
may be used as guidance for complying with this section:
(A) NACE International Recommended Practice RP 0285, “Corrosion
Control of Underground Storage Systems by Cathodic Protection”;
(B) NACE International Standard Practice SP 0169, “Control of
External Corrosion on Underground or Submerged Metallic Piping
Systems”;
(C) American Petroleum Institute Recommended Practice 1632,
“Cathodic Protection of Underground Petroleum Storage Tanks and
Piping Systems”; or
(D) Steel Tank Institute Recommended Practice R892,
“Recommended Practice for Corrosion Protection of Underground
Piping Networks Associated with Liquid Petroleum Storage and
Dispensing Systems”.
4. Section 280.12 is amended as follows:
a. By adding in alphabetical order definitions for “Airport
hydrant fuel distribution system,” “Class A operator,” “Class B
operator,” “Class C operator,” “Dispenser system,” “Replaced,”
“Secondary containment,” “Training program,” and “Under-dispenser
containment,” and
b. By revising the definitions for “Motor fuel,” “Regulated
substance,” “Repair,” and “Underground storage tank.”
Sec. 280.12 Definitions.
* * * * *
Airport hydrant fuel distribution system means an UST system that
is a combination of one or more tanks directly connected to underground
hydrant piping used to fuel aircraft. These systems do not have a
dispenser at the end of the piping run, but rather have a hydrant (fill
stand). If an aboveground storage tank (AST) is feeding an intermediary
tank or tanks, this definition does not include the AST, but does
include all underground piping entering and leaving the intermediary
tank(s) and the intermediary tank(s). Intermediary tanks are those
tanks directly connected to the hydrant piping.
* * * * *
Class A operator means the individual who has primary
responsibility to operate and maintain the UST system in accordance
with applicable requirements and standards established by the
implementing agency. The Class A operator typically manages resources
and personnel, such as establishing work assignments, to achieve and
maintain compliance with regulatory requirements.
Class B operator means the individual who has day-to-day
responsibility for implementing applicable regulatory requirements and
standards established by the implementing agency. The Class B operator
typically implements in-field aspects of operation, maintenance, and
associated recordkeeping for the UST system.
Class C operator means the employee responsible for initially
addressing emergencies presented by a spill or release from an UST
system. The Class C operator typically controls or monitors the
dispensing or sale of regulated substances.
* * * * *
Dispenser system means equipment located aboveground that meters
the amount of regulated substances transferred to a point of use
outside the UST system, such as a motor vehicle.
[[Page 71763]]
This system includes the equipment necessary to connect the dispenser
to the underground storage tank system.
* * * * *
Motor fuel means petroleum or a petroleum-based substance that is
typically used in the operation of a motor engine, such as motor
gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any blend
containing one or more of these substances (for example: motor gasoline
blended with alcohol).
* * * * *
Regulated substance means
(a) Any substance defined in section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) of 1980
(but not including any substance regulated as a hazardous waste under
subtitle C), and
(b) Petroleum, including crude oil or any fraction thereof that is
liquid at standard conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute). The term
“regulated substance” includes but is not limited to petroleum and
petroleum-based substances comprised of a complex blend of
hydrocarbons, such as motor fuels, jet fuels, distillate fuel oils,
residual fuel oils, lubricants, petroleum solvents, and used oils.
* * * * *
Repair means to restore a tank, pipe, spill prevention equipment,
overfill prevention equipment, corrosion protection equipment, release
detection equipment or other UST system component that has caused a
release or a suspected release of product from the UST system or has
failed to function properly.
Replaced means
(a) For a tank–to remove a tank and install another tank.
(b) For piping–to remove 50 percent or more of piping and install
other piping, excluding connectors, connected to a single tank. For
tanks with multiple piping runs, this definition applies independently
to each piping run.
* * * * *
Secondary containment or Secondarily contained means a release
prevention and release detection system for a tank and/or piping. These
systems have an inner and outer barrier with an interstitial space that
is monitored for leaks.
* * * * *
Training program means any program established by the implementing
agency that provides information to and evaluates the knowledge of a
Class A, Class B, or Class C operator regarding requirements and
standards for UST systems.
Under-dispenser containment or UDC means containment underneath a
dispenser system designed to prevent dispenser system leaks from
reaching soil or groundwater.
* * * * *
Underground storage tank or UST means any one or combination of
tanks (including underground pipes connected thereto) that is used to
contain an accumulation of regulated substances, and the volume of
which (including the volume of underground pipes connected thereto) is
10 percent or more beneath the surface of the ground. This term does
not include any:
(a) Farm or residential tank of 1,100 gallons or less capacity used
for storing motor fuel for noncommercial purposes;
(b) Tank used for storing heating oil for consumptive use on the
premises where stored;
(c) Septic tank;
(d) Pipeline facility (including gathering lines):
(1) Which is regulated under U.S.C. chapters 601 and 603, or
(2) Which is an intrastate pipeline facility regulated under state
laws as provided in U.S.C. 49 chapters 601 and 603,and which is
determined by the Secretary of Transportation to be connected to a
pipeline, or to be operated or intended to be capable of operating at
pipeline pressure, or as an integral part of a pipeline;
(e) Surface impoundment, pit, pond, or lagoon;
(f) Storm-water or wastewater collection system;
(g) Flow-through process tank;
(h) Liquid trap or associated gathering lines directly related to
oil or gas production and gathering operations; or
(i) Storage tank situated in an underground area (such as a
basement, cellar, mineworking, drift, shaft, or tunnel) if the storage
tank is situated upon or above the surface of the floor.
The term underground storage tank or UST does not include any pipes
connected to any tank which is described in paragraphs (a) through (i)
of this definition.
* * * * *
5. Revise Subpart B to read as follows:
Subpart B–UST Systems: Design, Construction, Installation and
Notification
Sec.
280.20 Performance standards for new UST systems.
280.21 Upgrading of existing UST systems.
280.22 Notification requirements.
Subpart B–UST Systems: Design, Construction, Installation and
Notification
Sec. 280.20 Performance standards for new UST systems.
In order to prevent releases due to structural failure, corrosion,
or spills and overfills for as long as the UST system is used to store
regulated substances, all owners and operators of new UST systems must
meet the following requirements.
(a) Tanks. Each tank must be properly designed and constructed, and
any portion underground that routinely contains product must be
protected from corrosion, in accordance with a code of practice
developed by a nationally recognized association or independent testing
laboratory as specified in paragraphs (a)(1) through (a)(5) of this
section. In addition, all new or replaced tanks where installation
began after [effective date of rule] must be secondarily contained in
accordance with paragraph (a)(6) of this section:
(1) The tank is constructed of fiberglass-reinforced plastic; or
Note to paragraph (a)(1): The following codes of practice may be
used to comply with paragraph (a)(1) of this section:
(A) Underwriters Laboratories Standard 1316, “Glass-Fiber-
Reinforced Plastic Underground Storage Tanks for Petroleum Products,
Alcohols, and Alcohol-Gasoline Mixtures”; or
(B) Underwriter’s Laboratories of Canada S615, “Standard for
Reinforced Plastic Underground Tanks for Flammable and Combustible
Liquids”.
(2) The tank is constructed of steel and cathodically protected in
the following manner:
(i) The tank is coated with a suitable dielectric material;
(ii) Field-installed cathodic protection systems are designed by a
corrosion expert;
(iii) Impressed current systems are designed to allow determination
of current operating status as required in Sec. 280.31(c); and
(iv) Cathodic protection systems are operated and maintained in
accordance with Sec. 280.31 or according to guidelines established by
the implementing agency; or
Note to paragraph (a)(2): The following codes of practice may be
used to comply with paragraph (a)(2) of this section:
(A) Steel Tank Institute Specification “sti-P3[supreg]
Specification and Manual for External Corrosion Protection of
Underground Steel Storage Tanks”;
(B) Underwriters Laboratories Standard 1746, “Standard for
External Corrosion Protection Systems for Steel Underground Storage
Tanks”;
[[Page 71764]]
(C) Underwriters Laboratories of Canada S603, “Standard for
Steel Underground Tanks for Flammable and Combustible Liquids,” and
S603.1, “Standard for External Corrosion Protection Systems for
Steel Underground Tanks for Flammable and Combustible Liquids,” and
S631, “Standard for Isolating Bushings for Steel Underground Tanks
Protected with External Corrosion Protection Systems”;
(D) Steel Tank Institute Standard F841, “Standard for Dual Wall
Underground Steel Storage Tanks”; or
(E) NACE International Recommended Practice RP 0285, “Corrosion
Control of Underground Storage Systems by Cathodic Protection,” and
Underwriters Laboratories Standard 58, “Standard for Steel
Underground Tanks for Flammable and Combustible Liquids”.
(3) The tank is constructed of steel and clad or jacketed with a
non-corrodible material; or
Note to paragraph (a)(3): The following codes of practice may be
used to comply with paragraph (a)(3) of this section:
(A) Underwriters Laboratories Standard 1746, “Standard for
External Corrosion Protection Systems for Steel Underground Storage
Tanks”;
(B) Steel Tank Institute Specification F894, “ACT-100[supreg]
Specification for External Corrosion Protection of FRP Composite
Steel USTs”;
(C) Steel Tank Institute Specification F961, “ACT-100-U[supreg]
Specification for External Corrosion Protection of Composite Steel
Underground Storage Tanks”; or
(D) Steel Tank Institute Specification F922, “Steel Tank
Institute Specification for Permatank[supreg]”.
(4) The tank is constructed of metal without additional corrosion
protection measures provided that:
(i) The tank is installed at a site that is determined by a
corrosion expert not to be corrosive enough to cause it to have a
release due to corrosion during its operating life; and
(ii) Owners and operators maintain records that demonstrate
compliance with the requirements of paragraph (a)(4)(i) of this section
for the remaining life of the tank; or
(5) The tank construction and corrosion protection are determined
by the implementing agency to be designed to prevent the release or
threatened release of any stored regulated substance in a manner that
is no less protective of human health and the environment than
paragraphs (a)(1) through (4) of this section; or
(6) The tank is secondarily contained. Secondary containment must
be periodically tested in accordance with Sec. 280.36. Secondarily
contained tanks must meet the following:
(i) Be able to contain regulated substances leaked from the primary
containment until they are detected and removed; and
(ii) Be able to prevent the release of regulated substances to the
environment at any time during the operational life of the UST system.
Note to paragraph (a)(6): The following codes of practice may be
used to comply with paragraph (a)(6) of this section:
(A) Underwriters Laboratories Standard 58, “Standard for Steel
Underground Tanks for Flammable and Combustible Liquids”;
(B) Underwriters Laboratories Standard 1316, “Glass-Fiber-
Reinforced Plastic Underground Storage Tanks for Petroleum Products,
Alcohols, and Alcohol-Gasoline Mixtures”;
(C) Underwriters Laboratories Standard 1746, “Standard for
External Corrosion Protection Systems for Steel Underground Storage
Tanks”;
(D) Steel Tank Institute Standard F841, “Standard for Dual Wall
Underground Steel Storage Tanks”; or
(E) Steel Tank Institute Specification F922, “Steel Tank
Institute Specification for Permatank[supreg]”.
(b) Piping. The piping that routinely contains regulated substances
and is in contact with the ground must be properly designed,
constructed, and protected from corrosion in accordance with a code of
practice developed by a nationally recognized association or
independent testing laboratory as specified in paragraphs (b)(1)
through (b)(4) of this section. In addition, except for suction piping
that meets the requirements of 280.41(b)(1)(ii)(A) through (E) and
piping associated with field-constructed tanks and airport hydrant fuel
distribution systems, all new or replaced piping where installation
began after [effective date of rule] must be secondarily contained in
accordance with paragraph (b)(5) of this section. The entire piping run
must be replaced when 50 percent or more of a piping run is replaced.
(1) The piping is constructed of a non-corrodible material; or
Note to paragraph (b)(1): The following codes of practice may be
used to comply with paragraph (b)(1) of this section:
(A) Underwriters Laboratories Standard 971, “Standard for Non-
Metallic Underground Piping for Flammable Liquids”; or
(B) Underwriters Laboratories of Canada Standard S660, ”
Standard for Non-Metallic Underground Piping for Flammable
Liquids”.
(2) The piping is constructed of steel and cathodically protected
in the following manner:
(i) The piping is coated with a suitable dielectric material;
(ii) Field-installed cathodic protection systems are designed by a
corrosion expert;
(iii) Impressed current systems are designed to allow determination
of current operating status as required in Sec. 280.31(c); and
(iv) Cathodic protection systems are operated and maintained in
accordance with Sec. 280.31 or guidelines established by the
implementing agency; or
Note to paragraph (b)(2): The following codes of practice may be
used to comply with paragraph (b)(2) of this section:
(A) American Petroleum Institute Recommended Practice 1632,
“Cathodic Protection of Underground Petroleum Storage Tanks and
Piping Systems”;
(B) Underwriters Laboratories Subject 971A, “Outline of
Investigation for Metallic Underground Fuel Pipe”;
(C) Steel Tank Institute Recommended Practice R892,
“Recommended Practice for Corrosion Protection of Underground
Piping Networks Associated with Liquid Petroleum Storage and
Dispensing Systems”;
(D) NACE International Standard Practice SP 0169, “Control of
External Corrosion on Underground or Submerged Metallic Piping
Systems”; or
(E) NACE International Recommended Practice RP 0285, “Corrosion
Control of Underground Storage Systems by Cathodic Protection”.
(3) The piping is constructed of metal without additional corrosion
protection measures provided that:
(i) The piping is installed at a site that is determined by a
corrosion expert to not be corrosive enough to cause it to have a
release due to corrosion during its operating life; and
(ii) Owners and operators maintain records that demonstrate
compliance with the requirements of paragraph (b)(3)(i) of this section
for the remaining life of the piping; or
(4) The piping construction and corrosion protection are determined
by the implementing agency to be designed to prevent the release or
threatened release of any stored regulated substance in a manner that
is no less protective of human health and the environment than the
requirements in paragraphs (b)(1) through (3) of this section; or
(5) The piping is secondarily contained. Secondary containment must
be periodically tested in accordance with Sec. 280.36. Secondarily
contained piping must meet the following:
(i) Be able to contain regulated substances leaked from the primary
containment until they are detected and removed; and
(ii) Be able to prevent the release of regulated substances to the
environment at any time during the operational life of the UST system.
Note to paragraph (b)(5): The following codes of practice may be
used to comply with paragraph (b)(5) of this section:
(A) Underwriters Laboratories Standard 971, “Standard for Non-
Metallic Underground Piping for Flammable Liquids”; or
[[Page 71765]]
(B) Underwriters Laboratories Subject 971A, “Outline of
Investigation for Metallic Underground Fuel Pipe”.
(c) Spill and overfill prevention equipment.
(1) Except as provided in paragraphs (c)(2) and (c)(3) of this
section, to prevent spilling and overfilling associated with product
transfer to the UST system, owners and operators must use the following
spill and overfill prevention equipment:
(i) Spill prevention equipment that will prevent release of product
to the environment when the transfer hose is detached from the fill
pipe (for example, a spill catchment basin); and
(ii) Overfill prevention equipment that will:
(A) Automatically shut off flow into the tank when the tank is no
more than 95 percent full; or
(B) Alert the transfer operator when the tank is no more than 90
percent full by restricting the flow into the tank or triggering a
high-level alarm; or
(C) Restrict flow 30 minutes prior to overfilling, alert the
transfer operator with a high level alarm one minute before
overfilling, or automatically shut off flow into the tank so that none
of the fittings located on top of the tank are exposed to product due
to overfilling.
(2) Owners and operators are not required to use the spill and
overfill prevention equipment specified in paragraph (c)(1) of this
section if:
(i) Alternative equipment is used that is determined by the
implementing agency to be no less protective of human health and the
environment than the equipment specified in paragraph (c)(1)(i) or (ii)
of this section; or
(ii) The UST system is filled by transfers of no more than 25
gallons at one time.
(3) Flow restrictors used in vent lines may not be used to comply
with paragraph (c)(1)(ii) of this section when overfill prevention is
installed or replaced after [effective date of rule].
(4) Spill and overfill prevention equipment must be periodically
tested in accordance with Sec. 280.35.
(d) Installation. All tanks and piping must be properly installed
in accordance with a code of practice developed by a nationally
recognized association or independent testing laboratory and in
accordance with the manufacturer’s instructions.
Note to paragraph (d): Tank and piping system installation
practices and procedures described in the following codes of
practice may be used to comply with the requirements of paragraph
(d) of this section:
(A) American Petroleum Institute Publication 1615,
“Installation of Underground Petroleum Storage System”;
(B) Petroleum Equipment Institute Publication RP100,
“Recommended Practices for Installation of Underground Liquid
Storage Systems”; or
(C) National Fire Protection Association Standard 30,
“Flammable and Combustible Liquids Code” and Standard 30A, “Code
for Motor Fuel Dispensing Facilities and Repair Garages”.
(e) Certification of installation. All owners and operators must
ensure that one or more of the following methods of certification,
testing, or inspection is used to demonstrate compliance with paragraph
(d) of this section by providing a certification of compliance on the
UST notification form in accordance with Sec. 280.22.
(1) The installer has been certified by the tank and piping
manufacturers; or
(2) The installer has been certified or licensed by the
implementing agency; or
(3) The installation has been inspected and certified by a
registered professional engineer with education and experience in UST
system installation; or
(4) The installation has been inspected and approved by the
implementing agency; or
(5) All work listed in the manufacturer’s installation checklists
has been completed; or
(6) The owner and operator have complied with another method for
ensuring compliance with paragraph (d) of this section that is
determined by the implementing agency to be no less protective of human
health and the environment.
(f) Dispenser Systems. Each UST system must be equipped with under-
dispenser containment for any new dispenser system installed.
(1) A dispenser system is considered new when both the dispenser
and the equipment needed to connect the dispenser to the underground
storage tank system are installed at an UST facility. The equipment
necessary to connect the dispenser to the underground storage tank
system includes check valves, shear valves, unburied risers or flexible
connectors, or other transitional components that are beneath the
dispenser and connect the dispenser to the underground piping.
(2) Under-dispenser containment must be liquid-tight on its sides,
bottom, and at any penetrations. Under-dispenser containment must allow
for visual inspection and access to the components in the containment
system or be continuously monitored for leaks from the dispenser
system.
Sec. 280.21 Upgrading of existing UST systems.
In accordance with subpart G of this part, owners and operators
must permanently close any UST system that does not meet the new UST
system performance standards in Sec. 280.20 or has not been upgraded
in accordance with paragraphs (b) through (d) of this section. This
does not apply to previously deferred UST systems described in
paragraph (e) of this section and where an upgrade is determined to be
appropriate by the implementing agency.
(a) Alternatives allowed. All existing UST systems must comply with
one of the following requirements:
(1) New UST system performance standards under Sec. 280.20;
(2) The upgrading requirements in paragraphs (b) through (d) of
this section; or
(3) Closure requirements under subpart G of this part, including
applicable requirements for corrective action under subpart F.
(b) Tank upgrading requirements. Steel tanks must be upgraded to
meet one of the following requirements in accordance with a code of
practice developed by a nationally recognized association or
independent testing laboratory:
(1) Interior lining. Tanks upgraded by internal lining must meet
the following:
(i) The lining was installed in accordance with the requirements of
Sec. 280.33, and
(ii) Within 10 years after lining, and every 5 years thereafter,
the lined tank is internally inspected and found to be structurally
sound with the lining still performing in accordance with original
design specifications. If the internal lining is no longer performing
in accordance with original design specifications and cannot be
repaired in accordance with a code of practice developed by a
nationally recognized association or independent testing laboratory,
then the lined tank must be permanently closed in accordance with
subpart G of this part.
(2) Cathodic protection. Tanks upgraded by cathodic protection must
meet the requirements of Sec. 280.20(a)(2)(ii), (iii), and (iv) and
the integrity of the tank must have been ensured using one of the
following methods:
(i) The tank was internally inspected and assessed to ensure that
the tank was structurally sound and free of corrosion holes prior to
installing the cathodic protection system; or
(ii) The tank had been installed for less than 10 years and is
monitored
[[Page 71766]]
monthly for releases in accordance with Sec. 280.43(d) through (i); or
(iii) The tank had been installed for less than 10 years and was
assessed for corrosion holes by conducting two tightness tests that
meet the requirements of Sec. 280.43(c). The first tightness test must
have been conducted prior to installing the cathodic protection system.
The second tightness test must have been conducted between three and
six months following the first operation of the cathodic protection
system; or
(iv) The tank was assessed for corrosion holes by a method that is
determined by the implementing agency to prevent releases in a manner
that is no less protective of human health and the environment than
paragraphs (b)(2)(i) through (iii) of this section.
(3) Internal lining combined with cathodic protection. Tanks
upgraded by both internal lining and cathodic protection must meet the
following:
(i) The lining was installed in accordance with the requirements of
Sec. 280.33; and
(ii) The cathodic protection system meets the requirements of Sec.
280.20(a)(2)(ii), (iii), and (iv).
Note to paragraph (b): The following historical codes of
practice were listed as options for complying with paragraph (b) of
this section:
(A) American Petroleum Institute Publication 1631, “Recommended
Practice for the Interior Lining of Existing Steel Underground
Storage Tanks”;
(B) National Leak Prevention Association Standard 631, “Spill
Prevention, Minimum 10 Year Life Extension of Existing Steel
Underground Tanks by Lining Without the Addition of Cathodic
Protection”;
(C) National Association of Corrosion Engineers Standard RP-02-
85, “Control of External Corrosion on Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems”; and
(D) American Petroleum Institute Publication 1632, “Cathodic
Protection of Underground Petroleum Storage Tanks and Piping
Systems”.
Note to paragraph (b)(1)(ii): The following codes of practice
may be used to comply with the periodic lining inspection
requirement of this section:
(A) American Petroleum Institute Recommended Practice 1631,
“Interior Lining and Periodic Inspection of Underground Storage
Tanks”;
(B) National Leak Prevention Association Standard 631, “Entry,
Cleaning, Interior Inspection, Repair, and Lining of Underground
Storage Tanks”; or
(C) Ken Wilcox Associates Recommended Practice, “Recommended
Practice for Inspecting Buried Lined Steel Tanks Using a Video
Camera”.
(c) Piping upgrading requirements. Metal piping that routinely
contains regulated substances and is in contact with the ground must be
cathodically protected in accordance with a code of practice developed
by a nationally recognized association or independent testing
laboratory and must meet the requirements of Sec. 280.20(b)(2)(ii),
(iii), and (iv).
Note to paragraph (c): The codes of practice listed in the note
following Sec. 280.20(b)(2) may be used to comply with this
requirement.
(d) Spill and overfill prevention equipment. To prevent spilling
and overfilling associated with product transfer to the UST system, all
existing UST systems must comply with new UST system spill and overfill
prevention equipment requirements specified in Sec. 280.20(c).
(e) Upgrade requirements for previously deferred UST systems.
Previously deferred wastewater treatment tank systems, airport hydrant
fuel distribution systems, and UST systems with field-constructed tanks
where installation commenced on or before [effective date of rule] must
meet the following requirements according to the time table in subpart
A or be permanently closed pursuant to subpart G of this part.
(1) Corrosion protection. UST system components in contact with the
ground that routinely contain regulated substances must meet one of the
following:
(i) The new UST system performance standards for tanks at Sec.
280.20(a) and for piping at Sec. 280.20(b); or
(ii) Be constructed of metal and cathodically protected according
to a code of practice developed by a nationally recognized association
or independent testing laboratory and meets the following:
(A) Cathodic protection must meet the requirements of Sec.
280.20(a)(2)(ii), (iii) and (iv) for tanks, and Sec. 280.20(b)(2)(ii),
(iii), and (iv) for piping.
(B) Tanks greater than 10 years old without cathodic protection
must be assessed to ensure the tank is structurally sound and free of
corrosion holes prior to adding cathodic protection. The assessment
must be by internal inspection or another method determined by the
implementing agency to adequately assess the tank for structural
soundness and corrosion holes.
Note to paragraph (e): The following codes of practice may be
used to comply with this paragraph:
(A) NACE International Recommended Practice RP 0285, “Control
of Underground Storage Tank Systems by Cathodic Protection”;
(B) NACE International Standard Practice SP 0169, “Control of
External Corrosion on Underground or Submerged Metallic Piping
Systems”;
(C) National Leak Prevention Association Standard 631, “Entry,
Cleaning, Interior Inspection, Repair, and Lining of Underground
Storage Tanks”; or
(D) American Society for Testing and Materials Standard G158,
“Standard Guide for Three Methods of Assessing Buried Steel
Tanks”.
(2) Spill and overfill prevention equipment. To prevent spilling
and overfilling associated with product transfer to the UST system, all
previously deferred UST systems must comply with new UST system spill
and overfill prevention equipment requirements specified in Sec.
280.20(c).
Sec. 280.22 Notification requirements.
(a) After May 8, 1986, an owner must submit notice of a tank
system’s existence to the implementing agency within 30 days of
bringing the underground storage tank system into use. Owners must use
the form in Appendix I of this part.
Note to paragraph (a): Owners and operators of UST systems that
were in the ground on or after May 8, 1986, unless taken out of
operation on or before January 1, 1974, were required to notify the
designated state or local agency in accordance with the Hazardous
and Solid Waste Amendments of 1984, Public Law 98-616, on a form
published by EPA on November 8, 1985 (50 FR 46602) unless notice was
given pursuant to section 103(c) of CERCLA. Owners and operators who
have not complied with the notification requirements may use
portions I through VI of the notification form contained in Appendix
I of this part.
(b) Within 30 days of acquisition, any person who assumes ownership
of a regulated underground storage tank system, except as described in
paragraph (a) of this section, must submit a notice of the ownership
change to the implementing agency, using the form in Appendix II of
this part.
(c) In states where state law, regulations, or procedures require
owners to use forms that differ from those set forth in Appendix I and
Appendix II of this part to fulfill the requirements of this section,
the state forms may be submitted in lieu of the forms set forth in
Appendix I and Appendix II of this part. If a state requires that its
form be used in lieu of the form presented in Appendix I and Appendix
II of this part, such form must, at a minimum, collect the information
prescribed in Appendix I and Appendix II of this part.
(d) Owners required to submit notices under paragraph (a) or (b) of
this section must provide notices to the appropriate
[[Page 71767]]
implementing agency for each tank they own. Owners may provide notice
for several tanks using one notification form, but owners who own tanks
located at more than one place of operation must file a separate
notification form for each separate place of operation.
(e) All owners and operators of new UST systems must certify in the
notification form compliance with the following requirements:
(1) Installation of tanks and piping under Sec. 280.20(e);
(2) Cathodic protection of steel tanks and piping under Sec.
280.20(a) and (b);
(3) Financial responsibility under subpart H of this part; and
(4) Release detection under Sec. Sec. 280.41 and 280.42.
(f) All owners and operators of new UST systems must ensure that
the installer certifies in the notification form that the methods used
to install the tanks and piping complies with the requirements in Sec.
280.20(d).
(g) Beginning October 24, 1988, any person who sells a tank
intended to be used as an underground storage tank must notify the
purchaser of such tank of the owner’s notification obligations under
paragraph (a) of this section. The statement provided in Appendix III
of this part, when used on shipping tickets and invoices, may be used
to comply with this requirement.
(h) Within 30 days of [Effective date of rule], all owners of
previously deferred UST systems must submit a notice of tank system
existence to the implementing agency, using the form in Appendix I of
this part.
6. In Sec. 280.30 revise the Note to read as follows:
Sec. 280.30 Spill and overfill control.
* * * * *
Note: The transfer procedures described in National Fire
Protection Association Standard 385, “Standard for Tank Vehicles
for Flammable and Combustible Liquids” or American Petroleum
Institute Recommended Practice 1007, “Loading and Unloading of MC
306/DOT 406 Cargo Tank Motor Vehicles” may be used to comply with
paragraph (a) of this section. Further guidance on spill and
overfill prevention appears in American Petroleum Institute
Recommended Practice 1621, “Bulk Liquid Stock Control at Retail
Outlets”.
* * * * *
7. In Sec. 280.31 revise the introductory text and the Note to
read as follows:
Sec. 280.31 Operation and maintenance of corrosion protection.
All owners and operators of metal UST systems with corrosion
protection must comply with the following requirements to ensure that
releases due to corrosion are prevented until the UST system is
permanently closed or undergoes a change-in-service pursuant to Sec.
280.71:
* * * * *
Note to paragraph (b): The following codes of practice may be
used to comply with paragraph (b) of this section:
(A) NACE International Test Method TM 0101, “Measurement
Techniques Related to Criteria for Cathodic Protection on
Underground or Submerged Metallic Tank Systems”;
(B) NACE International Test Method TM0497, “Measurement
Techniques Related to Criteria for Cathodic Protection on
Underground or Submerged Metallic Piping Systems”;
(C) Steel Tank Institute Recommended Practice R051, “Cathodic
Protection Testing Procedures for sti-P3 USTs”;
(D) NACE International Recommended Practice RP 0285, “Control
of Underground Storage Tank Systems by Cathodic Protection”; or
(E) NACE International Standard Practice SP 0169, “Control of
External Corrosion on Underground or Submerged Metallic Piping
Systems”.
* * * * *
8. Amend Sec. 280.32 to revise paragraph (a) and to add paragraphs
(b) and (c) to read as follows:
Sec. 280.32 Compatibility.
* * * * *
(a) Owners and operators must use an UST system made of or lined
with materials that are compatible with the substance stored in the UST
system.
(b) Owners and operators storing any regulated substance containing
greater than 10 percent ethanol or greater than 20 percent biodiesel,
or any other regulated substance identified by the implementing agency,
must use one or more of the following methods to demonstrate UST system
compatibility with these regulated substances:
(1) Certification or listing of UST system components by a
nationally recognized, independent testing laboratory for use with the
regulated substance stored;
(2) Equipment or component manufacturer approval. The
manufacturer’s approval must be in writing, indicate an affirmative
statement of compatibility, specify the range of biofuel blends the
component is compatible with, and be from the equipment or component
manufacturer; or
(3) Another method determined by the implementing agency to be no
less protective of human health and the environment than the methods
listed in paragraphs (b)(1) or (b)(2) of this section.
(c) Owners and operators must maintain the following records (in
accordance with Sec. 280.34) for the life of the equipment or
component:
(1) Documentation of compliance with paragraph (b) of this section,
as applicable; and
(2) Records of all equipment or components installed or replaced
after [effective date of rule]. At a minimum, each record must include
the date of installation or replacement, manufacturer, and model.
9. Revise Sec. 280.33 to read as follows:
Sec. 280.33 Repairs allowed.
Owners and operators of UST systems must ensure that repairs will
prevent releases due to structural failure or corrosion as long as the
UST system is used to store regulated substances. The repairs must meet
the following requirements:
(a) Repairs to UST systems must be properly conducted in accordance
with a code of practice developed by a nationally recognized
association or an independent testing laboratory.
Note to paragraph (a): The following codes of practice may be
used to comply with paragraph (a) of this section:
(A) National Fire Protection Association Standard 30,
“Flammable and Combustible Liquids Code”;
(B) American Petroleum Institute Recommended Practice RP 2200,
“Repairing Crude Oil, Liquified Petroleum Gas, and Product
Pipelines”;
(C) American Petroleum Institute Recommended Practice RP 1631,
“Interior Lining and Periodic Inspection of Underground Storage
Tanks”;
(D) National Fire Protection Association Standard 326,
“Safeguarding of Tanks and Containers for Entry, Cleaning, or
Repair”;
(E) National Leak Prevention Association Standard 631, “Entry,
Cleaning, Interior Inspection, Repair, and Lining of Underground
Storage Tanks”;
(F) Steel Tank Institute Recommended Practice R972,
“Recommended Practice for the Addition of Supplemental Anodes to
sti-P3[supreg] Tanks”;
(G) NACE International Recommended Practice RP 0285, “Control
of Underground Storage Tank Systems by Cathodic Protection”; or
(H) Fiberglass Tank and Pipe Institute Recommended Practice T-
95-02, “Remanufacturing of Fiberglass Reinforced Plastic (FRP)
Underground Storage Tanks”.
(b) Repairs to fiberglass-reinforced plastic tanks may be made by
the manufacturer’s authorized representatives or in accordance with a
code of practice developed by a nationally recognized association or an
independent testing laboratory.
(c) Metal pipe sections and fittings that have released product as
a result of corrosion or other damage must be
[[Page 71768]]
replaced. Non-corrodible pipes and fittings may be repaired in
accordance with the manufacturer’s specifications.
(d) Repaired tanks and piping must be tightness tested in
accordance with Sec. 280.43(c) and Sec. 280.44(b) within 30 days
following the date of the completion of the repair except as provided
in paragraphs (d)(1) through (4), of this section:
(1) The repaired tank is internally inspected in accordance with a
code of practice developed by a nationally recognized association or an
independent testing laboratory; or
(2) The repaired portion of the UST system is monitored monthly for
releases in accordance with a method specified in Sec. 280.43(d)
through (i);
(3) UST systems with secondary containment must be tested as
specified in Sec. 280.36 within 30 days following the completion of
any repair. Tanks using interstitial sensors must be tested using a
vacuum, pressure, or liquid method in accordance with one of the
criteria listed in Sec. 280.36(a)(1)(ii) following any repair; or
(4) Another test method is used that is determined by the
implementing agency to be no less protective of human health and the
environment than those listed above.
(e) Within 6 months following the repair of any cathodically
protected UST system, the cathodic protection system must be tested in
accordance with Sec. 280.31(b) and (c) to ensure that it is operating
properly.
(f) Within 30 days following any repair to spill or overfill
prevention equipment, the repaired spill or overfill prevention
equipment must be tested in accordance with Sec. 280.35 to ensure it
is operating properly.
(g) UST system owners and operators must maintain records (in
accordance with Sec. 280.34) of each repair until the UST system is
permanently closed or undergoes a change-in-service pursuant to Sec.
280.71.
10. Revise Sec. 280.34 to read as follows:
Sec. 280.34 Reporting and recordkeeping.
Owners and operators of UST systems must cooperate fully with
inspections, monitoring and testing conducted by the implementing
agency, as well as requests for document submission, testing, and
monitoring by the owner or operator pursuant to section 9005 of
Subtitle I of the Solid Waste Disposal Act, as amended.
(a) Reporting. Owners and operators must submit the following
information to the implementing agency:
(1) Notification for all UST systems (Sec. 280.22), which includes
certification of installation for new UST systems (Sec. 280.20(e)) and
notification when any person assumes ownership of an UST system (Sec.
280.22(b));
(2) Reports of all releases including suspected releases (Sec.
280.50), spills and overfills (Sec. 280.53), and confirmed releases
(Sec. 280.61);
(3) Corrective actions planned or taken including initial abatement
measures (Sec. 280.62), initial site characterization (Sec. 280.63),
free product removal (Sec. 280.64), investigation of soil and ground-
water cleanup (Sec. 280.65), and corrective action plan (Sec.
280.66); and
(4) A notification before permanent closure or change-in-service
(Sec. 280.71).
(b) Recordkeeping. Owners and operators must maintain the following
information:
(1) A corrosion expert’s analysis of site corrosion potential if
corrosion protection equipment is not used (Sec. 280.20(a)(4); Sec.
280.20(b)(3)).
(2) Documentation of operation of corrosion protection equipment
(Sec. 280.31(d));
(3) Documentation of compatibility for UST systems (Sec.
280.32(c));
(4) Records for all UST system equipment installed or replaced
after [effective date of rule] (Sec. 280.32(c));
(5) Documentation of UST system repairs (Sec. 280.33(g));
(6) Documentation of compliance for spill and overfill prevention
equipment (Sec. 280.35(c));
(7) Documentation of compliance for tanks, piping, and containment
sumps using interstitial monitoring (Sec. 280.36(c));
(8) Documentation of periodic walkthrough inspections (Sec.
280.37(b));
(9) Recent compliance with release detection requirements (Sec.
280.45);
(10) Results of the site investigation conducted at permanent
closure (Sec. 280.74); and
(11) Documentation of operator training (Sec. 280.245).
(c) Availability and Maintenance of Records. Owners and operators
must keep the records required either:
(1) At the UST site and immediately available for inspection by the
implementing agency; or
(2) At a readily available alternative site and be provided for
inspection to the implementing agency upon request.
(3) In the case of permanent closure records required under Sec.
280.74, owners and operators are also provided with the additional
alternative of mailing closure records to the implementing agency if
they cannot be kept at the site or an alternative site as indicated
above.
11. Add Sec. 280.35 to Subpart C to read as follows:
Sec. 280.35 Periodic testing of spill and overfill prevention
equipment.
(a) Owners and operators of UST systems with spill and overfill
prevention equipment must meet the following requirements to ensure the
equipment is operating properly and will prevent releases to the
environment:
(1) Spill prevention equipment (such as a catchment basin, spill
bucket, or other spill containment device) must prevent releases to the
environment by meeting one of the following:
(i) The spill prevention equipment has two walls and the space
between the walls is monitored continuously to ensure the integrity of
the inner and outer walls is maintained; or
(ii) The spill prevention equipment is tested at installation and
at least once every 12 months to ensure the spill prevention equipment
is liquid tight by using vacuum, pressure, or liquid testing in
accordance with one of the following criteria:
(A) Requirements developed by the manufacturer (Note: Owners and
operators may use this option only if the manufacturer has developed
testing requirements);
(B) Code of practice developed by a nationally recognized
association or independent testing laboratory; or
(C) Requirements determined by the implementing agency to be no
less protective of human health and the environment than the
requirements listed in paragraphs (a)(1)(ii)(A) and (B) of this
section; and
(2) Overfill prevention equipment must be tested at installation
and at least once every three years. At a minimum, testing must ensure
that overfill prevention equipment is set to activate at the correct
level specified in Sec. 280.20(c) and will activate when regulated
substance reaches that level. Testing must be conducted in accordance
with one of the criteria in paragraph (a)(1)(ii) of this section.
(b) Owners and operators must begin meeting these requirements as
follows:
(1) For UST systems in use on or before [Effective date of rule]:
(i) Not later than [One year after effective date of rule] for
spill prevention equipment; and
(ii) For overfill prevention equipment, not later than the phase-in
schedule in the following table:
[[Page 71769]]
Phase-In Schedule for Overfill Prevention Equipment Testing
—————————————————————————————————————-
Criteria Date by which first test must be conducted
—————————————————————————————————————-
One or more USTs at the facility were [1 year after effective date of rule].
installed on or before 12/22/1988.
No USTs at the facility were installed on [2 years after effective date of rule].
or before 12/22/1988 and at least one UST
at the facility was installed on or
before 12/22/1998.
All USTs at the facility were installed [3 years after effective date of rule].
after 12/22/1998.
—————————————————————————————————————-
(2) For UST systems brought into use after [Effective date of
rule], these requirements apply at installation.
(c) Owners and operators must maintain the following records (in
accordance with Sec. 280.34) for spill and overfill prevention
equipment:
(1) All records of spill prevention equipment testing and overfill
prevention equipment testing must be maintained for three years; and
(2) For spill prevention equipment not tested every 12 months,
documentation showing that the spill prevention equipment has two walls
and is monitored continuously. Owners and operators must maintain this
documentation for as long as the spill prevention equipment is
monitored continuously, and for three additional years after continuous
monitoring ends.
12. Add Sec. 280.36 to Subpart C to read as follows:
Sec. 280.36 Periodic testing of secondary containment.
(a) Owners and operators of UST systems with secondary containment
using interstitial monitoring must ensure the integrity of all
interstitial areas (including all containment sumps used for
interstitial monitoring).
(1) Tanks must meet one of the following:
(i) The interstitial space is continuously monitored; or
(ii) The interstitial space is not continuously monitored and the
integrity of the interstitial space is ensured at least once every
three years by using vacuum, pressure, or liquid testing in accordance
with one of the following criteria:
(A) Requirements developed by the manufacturer (Note: Owners and
operators may use this option only if the manufacturer has developed
integrity testing requirements);
(B) Code of practice developed by a nationally recognized
association or independent testing laboratory; or
(C) Requirements determined by the implementing agency to be no
less protective of human health and the environment than the
requirements listed in paragraphs (a)(1)(ii)(A) and (B) of this
section;
(2) Piping must meet one of the following:
(i) The interstitial space is continuously monitored using vacuum,
pressure, or a liquid-filled interstitial space; or
(ii) The interstitial space is monitored using an interstitial
monitoring method not listed in paragraph (a)(2)(i) of this section and
the integrity of the interstitial space is ensured at least once every
three years by using vacuum, pressure, or liquid testing in accordance
with one of the criteria listed in paragraph (a)(1)(ii) of this
section; and
(3) Containment sumps must meet one of the following:
(i) The containment sump has two walls and the space between the
walls is continuously monitored; or
(ii) The containment sump is tested at least every three years to
ensure the containment sump is liquid tight by using vacuum, pressure,
or liquid testing in accordance with one of the criteria listed in
paragraph (a)(1)(ii) of this section.
Note to paragraphs (a)(1)(ii), (a)(2)(ii), and (a)(3)(ii): The
following codes of practice may be used to comply with paragraphs
(a)(1)(ii), (a)(2)(ii), and (a)(3)(ii) of this section:
(A) Steel Tank Institute Recommended Practice R012,
“Recommended Practice for Interstitial Tightness Testing of
Existing Underground Double Wall Steel Tanks”; or
(B) Fiberglass Tank and Pipe Institute Protocol, “Field Test
Protocol for Testing the Annular Space of Installed Underground
Fiberglass Double and Triple-Wall Tanks with Dry Annular Space”.
(b) Owners and operators of UST systems using interstitial
monitoring must begin meeting this requirement as follows:
(1) For UST systems in use on or before [Effective date of rule],
not later than the phase-in schedule in the following table:
Phase-In Schedule for Interstitial Area Testing
—————————————————————————————————————-
Criteria Date by which first test must be conducted
—————————————————————————————————————-
One or more USTs at the facility were [1 year after effective date of rule].
installed on or before 12/22/1988.
No USTs at the facility were installed on [2 years after effective date of rule].
or before 12/22/1988 and at least one UST
at the facility was installed on or
before 12/22/1998.
All USTs at the facility were installed [3 years after effective date of rule].
after 12/22/1998.
—————————————————————————————————————-
(2) For UST systems brought into use after [Effective date of
rule], these requirements apply at installation.
(c) Owners and operators must maintain the following records (in
accordance with Sec. 280.34) for the time frames indicated for each
tank, piping, and containment sump that uses interstitial monitoring:
(1) Records of interstitial space testing must be maintained for
three years; or
(2) As appropriate, records demonstrating: the tank is using
continuous interstitial monitoring; the piping is using continuous
interstitial monitoring with vacuum, pressure, liquid-filled
interstitial space; and the containment sump has two walls and uses
continuous interstitial monitoring. Owners and operators must maintain
these records for as long as the tank, piping, or containment sump uses
one of these continuous methods of interstitial monitoring, and for
three additional years after continuous monitoring ends.
13. Add Sec. 280.37 to Subpart C to read as follows:
Sec. 280.37 Periodic operation and maintenance walkthrough
inspections.
(a) To properly operate and maintain UST systems, owners and
operators must meet one of the following:
[[Page 71770]]
(1) Conduct a walkthrough inspection at least once every 30 days
that, at a minimum and as appropriate to the facility, checks the
following equipment as specified:
(i) Spill prevention equipment–open and visually check for any
damage; remove any liquid or debris; check each fill cap to make sure
it is securely on the fill pipe; and for spill prevention equipment
with continuous interstitial monitoring, check for a leak in the
interstitial area,
(ii) Sumps–open and visually check for any damage, leaks to the
containment area, or releases to the environment; remove any liquid (in
contained sumps) or debris; and for sumps with continuous interstitial
monitoring, check for a leak in the interstitial area,
(iii) Dispenser cabinets–open and visually check for any damage,
leaks to the containment area, or releases to the environment; remove
any liquid (in dispensers with under-dispenser containment) or debris;
and for under-dispenser containment with continuous interstitial
monitoring, check for a leak in the interstitial area,
(iv) Monitoring/observation wells–check covers to make sure they
are secured,
(v) Cathodic protection–check to make sure impressed current
cathodic protection rectifiers are on and operating; and ensure records
of three year cathodic protection testing and 60 day impressed current
system inspections are reviewed and current, and
(vi) Release detection systems–check to make sure the release
detection system is on and operating with no alarms or other unusual
operating conditions present; check any devices such as tank gauge
sticks, groundwater bailers, and hand-held vapor monitoring devices for
operability and serviceability; and ensure records of release detection
testing are reviewed monthly and current; or
(2) Conduct operation and maintenance walkthrough inspections at
least once every 30 days according to a standard code of practice
developed by a nationally recognized association or independent testing
laboratory that are comparable to (a)(1) of this section; or
(3) Conduct operation and maintenance walkthrough inspections
developed by the implementing agency that are comparable to paragraph
(a)(1) of this section.
(b) Owners and operators must maintain records (in accordance with
Sec. 280.34) of operation and maintenance walkthrough inspections for
one year. The record must include a listing of each area checked,
whether each area checked was acceptable or needed to have any action
taken, and a description of any actions taken to correct an issue.
Note to paragraph (a)(2): The following code of practice may be
used to comply with paragraph (a)(2) of this section:
(A) Petroleum Equipment Institute Recommended Practice RP 900,
“Recommended Practices for the Inspection and Maintenance of UST
Systems”.
14. Revise Subpart D to read as follows:
Subpart D–Release Detection
Sec.
280.40 General requirements for all UST systems.
280.41 Requirements for petroleum UST systems.
280.42 Requirements for hazardous substance UST systems.
280.43 Methods of release detection for tanks.
280.44 Methods of release detection for piping.
280.45 Release detection recordkeeping.
280.46 Alternative methods of release detection for field-
constructed tanks.
280.47 Alternative methods of release detection for bulk piping.
Subpart D–Release Detection
Sec. 280.40 General requirements for all UST systems.
(a) Owners and operators of UST systems must provide a method, or
combination of methods, of release detection that:
(1) Can detect a release from any portion of the tank and the
connected underground piping that routinely contains product;
(2) Is installed and calibrated in accordance with the
manufacturer’s instructions;
(3) Beginning on [One year after effective date of rule], is
operated and maintained, and electronic and mechanical components are
tested for proper operation, in accordance with one of the following:
Manufacturer’s instructions; a code of practice developed by a
nationally recognized association or independent testing laboratory; or
requirements developed by the implementing agency. A test of the proper
operation must be performed at least annually and, at a minimum and as
applicable to the facility, cover the following components and
criteria:
(i) Automatic tank gauge and other controllers: Test alarm; verify
system configuration; test battery backup;
(ii) Probes and sensors: Inspect for residual buildup, ensure
floats move freely; ensure shaft is not damaged; ensure cables are free
of kinks, bends, and breaks; test alarm operability and communication
with controller;
(iii) Line leak detector: Test operation to meet criteria in Sec.
280.44(a) by simulating a leak; inspect leak sensing o-ring; and
(iv) Vacuum pumps and pressure gauges: Ensure proper communication
with sensors and controller.
(4) Meets the performance requirements in Sec. 280.43, Sec.
280.44, Sec. 280.46, or Sec. 280.47, as applicable, with any
performance claims and their manner of determination described in
writing by the equipment manufacturer or installer. In addition, the
methods listed in Sec. 280.43(b); Sec. 280.43(c); Sec. 280.43(d);
Sec. 280.43(h); Sec. 280.43(i);Sec. 280.44(a); Sec. 280.44(b);
Sec. 280.46; and Sec. 280.47, must be capable of detecting the leak
rate or quantity specified for that method in the corresponding section
of the rule with a probability of detection of 0.95 and a probability
of false alarm of 0.05.
(b) When a release detection method operated in accordance with the
performance standards in Sec. 280.43, Sec. 280.44, Sec. 280.46, or
Sec. 280.47 indicates a release may have occurred, owners and
operators must notify the implementing agency in accordance with
subpart E.
(c) Owners and operators of Airport hydrant fuel distribution
systems, UST systems with field-constructed tanks, and wastewater
treatment tank systems must comply with the release detection
requirements of this Subpart according to the following table:
[[Page 71771]]
Schedule for Phase-In of Release Detection for Airport Hydrant Fuel
Distribution Systems, UST Systems With Field-Constructed Tanks, and
Wastewater Treatment Tank Systems
————————————————————————
Time frame (after
Type of UST system [effective date of Description of
rule]) requirement
————————————————————————
Bulk piping associated with Within three years.. Conduct one bulk
airport hydrant fuel Between years three piping tightness
distribution systems and and six. test according to
field-constructed tanks Sec. 280.47(a)
using Sec. 280.47(a) for using the maximum
piping release detection. detectable leak
rates for
semiannual testing.
For bulk piping
segments not
capable of meeting
the up to 3.0
gallon per hour
leak rate, owners
and operators may
use a leak rate of
up to 6.0 gallons
per hour.
——————————————-
Between years six Conduct one bulk
and seven. piping tightness
test according to
Sec. 280.47(a)
using the maximum
detectable leak
rates for
semiannual testing.
——————————————-
After year seven…. Conduct bulk piping
tightness testing
according to Sec.
280.47(a).
————————————————————————
Bulk piping associated with Within three years.. Perform release
airport hydrant fuel detection according
distribution systems and to this subpart.
field-constructed tanks not
using Sec. 280.47(a) for
piping release detection.
————————————————————————
Underground tanks associated Within three years.. Perform release
with hydrant fuel detection according
distribution systems and to this subpart.
field-constructed tanks.
————————————————————————
Wastewater treatment tank Within three years.. Perform release
systems. detection according
to this subpart.
————————————————————————
(d) Any UST system that cannot apply a method of release detection
that complies with the requirements of this subpart must complete the
closure procedures in subpart G. For previously deferred UST systems
described in subpart A, this requirement applies after the effective
date for subpart D described in Sec. 280.10(a)(1).
Sec. 280.41 Requirements for petroleum UST systems.
Owners and operators of petroleum UST systems must provide release
detection for tanks and piping as follows:
(a) Tanks. Tanks must be monitored for releases as follows:
(1) Tanks installed on or before [effective date of rule] must be
monitored for releases at least every 30 days using one of the methods
listed in Sec. 280.43(d) through (i) except that:
(i) UST systems that meet the performance standards in Sec. 280.20
or Sec. 280.21, and the monthly inventory control requirements in
Sec. 280.43(a) or (b), may use tank tightness testing (conducted in
accordance with Sec. 280.43(c)) at least every 5 years until 10 years
after the tank was installed or upgraded under Sec. 280.21(b),
whichever is later;
(ii) Tanks with capacity of 550 gallons or less and tanks with a
capacity of 551 to 1,000 gallons that meet the tank diameter criteria
in Sec. 280.43(b) may use manual tank gauging (conducted in accordance
with Sec. 280.43(b));
(iii) Field-constructed tanks greater than 50,000 gallons may use
the alternative release detection requirements in Sec. 280.46; and
(iv) Tanks using Sec. 280.43(e) or Sec. 280.43(f) to monitor for
releases, must begin using one of the methods listed in Sec.
280.43(d), (g), (h), or (i) not later than [Five years after effective
date of rule].
(2) Tanks installed after [effective date of rule] must be
monitored for releases at least every 30 days in accordance with Sec.
280.43(g).
(b) Piping. Underground piping that routinely contains regulated
substances must be monitored for releases in a manner that meets one of
the following requirements:
(1) Piping installed on or before [effective date of rule] must
meet one of the following:
(i) Pressurized piping. Underground piping that conveys regulated
substances under pressure must:
(A) Be equipped with an automatic line leak detector conducted in
accordance with Sec. 280.44(a); and
(B) Have an annual line tightness test conducted in accordance with
Sec. 280.44(b) or have monthly monitoring conducted in accordance with
Sec. 280.44(c).
(ii) Suction piping. Underground piping that conveys regulated
substances under suction must either have a line tightness test
conducted at least every 3 years and in accordance with Sec.
280.44(b), or use a monthly monitoring method conducted in accordance
with Sec. 280.44(c). No release detection is required for suction
piping that is designed and constructed to meet the following
standards:
(A) The below-grade piping operates at less than atmospheric
pressure;
(B) The below-grade piping is sloped so that the contents of the
pipe will drain back into the storage tank if the suction is released;
(C) Only one check valve is included in each suction line;
(D) The check valve is located directly below and as close as
practical to the suction pump; and
(E) A method is provided that allows compliance with paragraphs
(b)(2)(ii)-(iv) of this section to be readily determined.
(iii) Bulk piping. Underground piping associated with airport
hydrant fuel distribution systems and field-constructed tanks must meet
one of the following release detection requirements:
(A) The requirements in paragraphs (b)(1)(i) or (ii) of this
section; or
(B) The alternative release detection requirements in Sec. 280.47.
(2) Piping installed or replaced after [effective date of rule]
must meet one of the following:
(i) Pressurized piping must be monitored for releases at least
every 30
[[Page 71772]]
days in accordance with Sec. 280.43(g) and be equipped with an
automatic line leak detector in accordance with Sec. 280.44(a).
(ii) Suction piping must be monitored for releases at least every
30 days in accordance with Sec. 280.43(g). No release detection is
required for suction piping that meets paragraphs (b)(1)(ii)(A) through
(E) of this section.
(iii) Underground bulk piping associated with airport hydrant fuel
distribution systems and field-constructed tanks must meet the
requirements in paragraph (b)(1) of this section.
Sec. 280.42 Requirements for hazardous substance UST systems.
Owners and operators of hazardous substance UST systems must
provide containment that meets the following requirements and monitor
these systems using Sec. 280.43(g) at least every 30 days:
(a) Secondary containment systems must be designed, constructed and
installed to:
(1) Contain regulated substances leaked from the primary
containment until they are detected and removed;
(2) Prevent the release of regulated substances to the environment
at any time during the operational life of the UST system; and
(3) Be checked for evidence of a release at least every 30 days.
Note to paragraph (a): The provisions of 40 CFR 265.193,
Containment and Detection of Releases, may be used to comply with
these requirements for tanks installed on or before [effective date
of rule].
(b) Double-walled tanks must be designed, constructed, and
installed to:
(1) Contain a release from any portion of the inner tank within the
outer wall; and
(2) Detect the failure of the inner wall.
(c) External liners (including vaults) must be designed,
constructed, and installed to:
(1) Contain 100 percent of the capacity of the largest tank within
its boundary;
(2) Prevent the interference of precipitation or ground-water
intrusion with the ability to contain or detect a release of regulated
substances; and
(3) Surround the tank completely (i.e., it is capable of preventing
lateral as well as vertical migration of regulated substances).
(d) Underground piping must be equipped with secondary containment
that satisfies the requirements of this section (e.g., trench liners,
double-walled pipe). In addition, underground piping that conveys
regulated substances under pressure must be equipped with an automatic
line leak detector in accordance with Sec. 280.44(a).
(e) For hazardous substance UST systems installed on or before
[Effective date of rule] other methods of release detection may be used
if owners and operators:
(1) Demonstrate to the implementing agency that an alternate method
can detect a release of the stored substance as effectively as any of
the methods allowed in Sec. Sec. 280.43(b) through (i) can detect a
release of petroleum;
(2) Provide information to the implementing agency on effective
corrective action technologies, health risks, and chemical and physical
properties of the stored substance, and the characteristics of the UST
site; and,
(3) Obtain approval from the implementing agency to use the
alternate release detection method before the installation and
operation of the new UST system.
Sec. 280.43 Methods of release detection for tanks.
Each method of release detection for tanks used to meet the
requirements of Sec. 280.41, except field-constructed tanks installed
on or before [Effective date of rule] with capacities greater than
50,000 gallons that meet Sec. 280.46, must be conducted in accordance
with the following:
(a) Inventory control. Product inventory control (or another test
of equivalent performance) must be conducted monthly to detect a
release of at least 1.0 percent of flow-through plus 130 gallons on a
monthly basis in the following manner:
(1) Inventory volume measurements for regulated substance inputs,
withdrawals, and the amount still remaining in the tank are recorded
each operating day;
(2) The equipment used is capable of measuring the level of product
over the full range of the tank’s height to the nearest one-eighth of
an inch;
(3) The regulated substance inputs are reconciled with delivery
receipts by measurement of the tank inventory volume before and after
delivery;
(4) Deliveries are made through a drop tube that extends to within
one foot of the tank bottom;
(5) Product dispensing is metered and recorded within the local
standards for meter calibration or an accuracy of 6 cubic inches for
every 5 gallons of product withdrawn; and
(6) The measurement of any water level in the bottom of the tank is
made to the nearest one-eighth of an inch at least once a month.
Note to paragraph (a): Practices described in the American
Petroleum Institute Recommended Practice RP 1621, “Bulk Liquid
Stock Control at Retail Outlets” may be used, where applicable, as
guidance in meeting the requirements of this paragraph.
(b) Manual tank gauging. Manual tank gauging must meet the
following requirements:
(1) Tank liquid level measurements are taken at the beginning and
ending of a period of at least 36 hours during which no liquid is added
to or removed from the tank;
(2) Level measurements are based on an average of two consecutive
stick readings at both the beginning and ending of the period;
(3) The equipment used is capable of measuring the level of product
over the full range of the tank’s height to the nearest one-eighth of
an inch;
(4) A release is suspected and subject to the requirements of
subpart E if the variation between beginning and ending measurements
exceeds the weekly or monthly standards in the following table:
—————————————————————————————————————-
Minimum duration of Weekly standard (one Monthly standard (four
Nominal tank capacity test test) test average)
—————————————————————————————————————-
550 gallons or less……………… 36 hours…………… 10 gallons…………. 5 gallons.
551-1,000 gallons (when tank diameter 44 hours…………… 9 gallons………….. 4 gallons.
is 64”).
551-1,000 gallons (when tank diameter 58 hours…………… 12 gallons…………. 6 gallons.
is 48”).
551-1,000 gallons (also requires 36 hours…………… 13 gallons…………. 7 gallons.
periodic tank tightness testing).
1,001-2,000 gallons (also requires 36 hours…………… 26 gallons…………. 13 gallons.
periodic tank tightness testing).
—————————————————————————————————————-
(5) Tanks of 550 gallons or less nominal capacity and tanks with a
nominal capacity of 551 to 1,000 gallons that meet the tank diameter
criteria in the table in paragraph (b)(4) of this section may use this
as the sole method
[[Page 71773]]
of release detection. All other tanks with a nominal capacity of 551 to
2,000 gallons may use the method in place of inventory control in Sec.
280.43(a). Tanks of greater than 2,000 gallons nominal capacity may not
use this method to meet the requirements of this Subpart.
(c) Tank tightness testing. Tank tightness testing (or another test
of equivalent performance) must be capable of detecting a 0.1 gallon
per hour leak rate from any portion of the tank that routinely contains
product while accounting for the effects of thermal expansion or
contraction of the product, vapor pockets, tank deformation,
evaporation or condensation, and the location of the water table.
(d) Automatic tank gauging. Equipment for automatic tank gauging
that tests for the loss of product and conducts inventory control must
meet the following requirements:
(1) The automatic product level monitor test can detect a 0.2
gallon per hour leak rate from any portion of the tank that routinely
contains product; and
(2) The test must be performed with the system operating in one of
the following modes:
(i) In-tank static testing conducted on a periodic basis; or
(ii) Continuous in-tank leak detection operating on an
uninterrupted basis or operating within a process that allows the
system to gather incremental measurements to determine the leak status
of the tank at least once every 30 days.
(e) Vapor monitoring. Testing or monitoring for vapors within the
soil gas of the excavation zone must meet the following requirements:
(1) The materials used as backfill are sufficiently porous (e.g.,
gravel, sand, crushed rock) to readily allow diffusion of vapors from
releases into the excavation area;
(2) The stored regulated substance, or a tracer compound placed in
the tank system, is sufficiently volatile (e.g., gasoline) to result in
a vapor level that is detectable by the monitoring devices located in
the excavation zone in the event of a release from the tank;
(3) The measurement of vapors by the monitoring device is not
rendered inoperative by the ground water, rainfall, or soil moisture or
other known interferences so that a release could go undetected for
more than 30 days;
(4) The level of background contamination in the excavation zone
will not interfere with the method used to detect releases from the
tank;
(5) The vapor monitors are designed and operated to detect any
significant increase in concentration above background of the regulated
substance stored in the tank system, a component or components of that
substance, or a tracer compound placed in the tank system;
(6) In the UST excavation zone, the site is assessed to ensure
compliance with the requirements in paragraphs (e)(1) through (4) of
this section and to establish the number and positioning of monitoring
wells that will detect releases within the excavation zone from any
portion of the tank that routinely contains product; and
(7) Monitoring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(f) Ground-water monitoring. Testing or monitoring for liquids on
the ground water must meet the following requirements:
(1) The regulated substance stored is immiscible in water and has a
specific gravity of less than one;
(2) Ground water is never more than 20 feet from the ground surface
and the hydraulic conductivity of the soil(s) between the UST system
and the monitoring wells or devices is not less than 0.01 cm/sec (e.g.,
the soil should consist of gravels, coarse to medium sands, coarse
silts or other permeable materials);
(3) The slotted portion of the monitoring well casing must be
designed to prevent migration of natural soils or filter pack into the
well and to allow entry of regulated substance on the water table into
the well under both high and low ground-water conditions;
(4) Monitoring wells shall be sealed from the ground surface to the
top of the filter pack;
(5) Monitoring wells or devices intercept the excavation zone or
are as close to it as is technically feasible;
(6) The continuous monitoring devices or manual methods used can
detect the presence of at least one-eighth of an inch of free product
on top of the ground water in the monitoring wells;
(7) Within and immediately below the UST system excavation zone,
the site is assessed to ensure compliance with the requirements in
paragraphs (f)(1) through (5) of this section and to establish the
number and positioning of monitoring wells or devices that will detect
releases from any portion of the tank that routinely contains product;
and
(8) Monitoring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(g) Interstitial monitoring. Interstitial monitoring between the
UST system and a secondary barrier immediately around or beneath it may
be used, but only if the system is designed, constructed and installed
to detect a leak from any portion of the tank that routinely contains
product and also meets one of the following requirements:
(1) For double-walled UST systems, the sampling or testing method
can detect a release through the inner wall in any portion of the tank
that routinely contains product;
(2) For UST systems with a secondary barrier within the excavation
zone, the sampling or testing method used can detect a release between
the UST system and the secondary barrier;
(i) The secondary barrier around or beneath the UST system consists
of artificially constructed material that is sufficiently thick and
impermeable (at least 10-6 cm/sec for the regulated
substance stored) to direct a release to the monitoring point and
permit its detection;
(ii) The barrier is compatible with the regulated substance stored
so that a release from the UST system will not cause a deterioration of
the barrier allowing a release to pass through undetected;
(iii) For cathodically protected tanks, the secondary barrier must
be installed so that it does not interfere with the proper operation of
the cathodic protection system;
(iv) The ground water, soil moisture, or rainfall will not render
the testing or sampling method used inoperative so that a release could
go undetected for more than 30 days;
(v) The site is assessed to ensure that the secondary barrier is
always above the ground water and not in a 25-year flood plain, unless
the barrier and monitoring designs are for use under such conditions;
and,
(vi) Monitoring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(3) For tanks with an internally fitted liner, an automated device
can detect a release between the inner wall of the tank and the liner,
and the liner is compatible with the substance stored.
(4) For UST systems using continuous vacuum, pressure, or liquid-
filled methods of interstitial monitoring, the method must be capable
of detecting a breach in both the inner and outer walls of the tank
and/or piping.
(h) Statistical inventory reconciliation. Statistically based
testing or monitoring methods must meet the following requirements:
(1) Report a quantitative result with a calculated leak rate;
(2) Be capable of detecting a leak rate of 0.2 gallon per hour; and
[[Page 71774]]
(3) Use a threshold that does not exceed one-half the minimum
detectible leak rate.
(i) Other methods. Any other type of release detection method, or
combination of methods, can be used if:
(1) It can detect a 0.2 gallon per hour leak rate or a release of
150 gallons within a month with a probability of detection of 0.95 and
a probability of false alarm of 0.05; or
(2) The implementing agency may approve another method if the owner
and operator can demonstrate that the method can detect a release as
effectively as any of the methods allowed in paragraphs (c) through (h)
of this section. In comparing methods, the implementing agency shall
consider the size of release that the method can detect and the
frequency and reliability with which it can be detected. If the method
is approved, the owner and operator must comply with any conditions
imposed by the implementing agency on its use to ensure the protection
of human health and the environment.
Sec. 280.44 Methods of release detection for piping.
Each method of release detection for piping used to meet the
requirements of Sec. 280.41, except bulk piping that meets Sec.
280.47, must be conducted in accordance with the following:
(a) Automatic line leak detectors. Methods which alert the operator
to the presence of a leak by restricting or shutting off the flow of
regulated substances through piping or triggering an audible or visual
alarm may be used only if they detect leaks of 3 gallons per hour at 10
pounds per square inch line pressure within 1 hour. An annual test of
the operation of the leak detector must be conducted in accordance with
Sec. 280.40(a)(3).
(b) Line tightness testing. A periodic test of piping may be
conducted only if it can detect a 0.1 gallon per hour leak rate at one
and one-half times the operating pressure.
(c) Applicable tank methods. Except as described in Sec.
280.41(a), any of the methods in Sec. 280.43(e) through (i) may be
used if they are designed to detect a release from any portion of the
underground piping that routinely contains regulated substances.
Sec. 280.45 Release detection recordkeeping.
All UST system owners and operators must maintain records in
accordance with Sec. 280.34 demonstrating compliance with all
applicable requirements of this subpart. These records must include the
following:
(a) All written performance claims pertaining to any release
detection system used, and the manner in which these claims have been
justified or tested by the equipment manufacturer or installer, must be
maintained for 5 years, or for another reasonable period of time
determined by the implementing agency, from the date of installation;
(b) The results of any sampling, testing, or monitoring must be
maintained for at least 1 year, or for another reasonable period of
time determined by the implementing agency, except as follows:
(1) The results of annual operation tests conducted in accordance
with Sec. 280.40(a)(3) must be maintained for three years. At a
minimum, the results must list each component tested, indicate whether
each component tested meets criteria in Sec. 280.40(a)(3) or needs to
have action taken, and describe any action taken to correct an issue;
and
(2) The results of tank tightness testing or bulk tank tightness
testing conducted in accordance with Sec. 280.43(c) or Sec. 280.46
must be retained until the next test is conducted; and
(c) Written documentation of all calibration, maintenance, and
repair of release detection equipment permanently located on-site must
be maintained for at least one year after the servicing work is
completed, or for another reasonable time period determined by the
implementing agency. Any schedules of required calibration and
maintenance provided by the release detection equipment manufacturer
must be retained for 5 years from the date of installation.
Sec. 280.46 Alternative methods of release detection for field-
constructed tanks.
Owners and operators of field-constructed tanks with a capacity
greater than 50,000 gallons may use one or a combination of the
following alternative methods of release detection:
(a) Conduct an annual bulk tank tightness test that can detect a
0.5 gallon per hour leak rate;
(b) Use an automatic tank gauging system to perform release
detection at least every 30 days that can detect a leak rate less than
or equal to one gallon per hour. This method must be combined with a
bulk tank tightness test that can detect a 0.2 gallon per hour leak
rate performed at least every three years;
(c) Use an automatic tank gauging system to perform release
detection at least every 30 days that can detect a leak rate less than
or equal to two gallons per hour. This method must be combined with a
bulk tank tightness test that can detect a 0.2 gallon per hour leak
rate performed at least every two years; or
(d) Another method approved by the implementing agency if the owner
and operator can demonstrate that the method can detect a release as
effectively as any of the methods allowed in paragraphs (a) through (c)
of this section. In comparing methods, the implementing agency shall
consider the size of release that the method can detect and the
frequency and reliability of detection. If the method is approved, the
owner and operator must comply with any conditions imposed by the
implementing agency on its use.
Sec. 280.47 Alternative methods of release detection for bulk piping.
Owners and operators of underground piping associated with airport
hydrant fuel distribution systems and field-constructed tanks may use
one or a combination of the following alternative methods of release
detection:
(a) Perform a semiannual or annual bulk line tightness test at or
above operating pressure in accordance with the table below. Bulk
piping segments >=100,000 gallons not capable of meeting the maximum
3.0 gallon per hour leak rate for the semiannual test may be tested at
a leak rate up to 6.0 gallons per hour according to the schedule in
Sec. 280.40(c):
Maximum Detectable Leak Rate per Test Section Volume
————————————————————————
Semiannual test Annual test
maximum detectable maximum detectable
Test section volume (gallons) leak rate leak rate
(gallons per hour) (gallons per hour)
————————————————————————
<50,000……………………. 1.0 0.5
>=50,000 to <75,000…………. 1.5 0.75
>=75,000 to <100,000………… 2.0 1.0
>=100,000………………….. 3.0 1.5
————————————————————————
[[Page 71775]]
(b) Perform continuous interstitial monitoring designed to detect
a release from any portion of the underground piping that routinely
contains product in accordance with Sec. 280.43(g);
(c) Use an automatic line leak detector that alerts the operator to
the presence of a leak by restricting or shutting off flow of regulated
substances through piping or triggering an audible or visual alarm.
This method may be used only if it can detect a leak of three gallons
per hour at 10 pounds per square inch line pressure within one hour or
equivalent. When using this method, the following must also be met:
(1) Perform interstitial monitoring, designed to detect a release
from any portion of the underground piping that routinely contains
product, in accordance with Sec. 280.43(g) at least every three
months; and
(2) Conduct an annual test of the operation of the leak detector in
accordance with Sec. 280.40(a)(3); or
(d) Another method approved by the implementing agency if the owner
and operator can demonstrate that the method can detect a release as
effectively as any of the methods allowed in paragraphs (a) through (c)
of this section. In comparing methods, the implementing agency shall
consider the size of release that the method can detect and the
frequency and reliability of detection. If the method is approved, the
owner and operator must comply with any conditions imposed by the
implementing agency on its use.
15. In Sec. 280.50 revise paragraphs (b) and (c) to read as
follows:
Sec. 280.50 Reporting of suspected releases.
* * * * *
(b) Unusual operating conditions observed by owners and operators
(such as the erratic behavior of product dispensing equipment, the
sudden loss of product from the UST system, an unexplained presence of
water in the tank, or water or product in the interstitial space of
secondarily contained systems), unless system equipment is found to be
defective but not leaking, and is immediately repaired or replaced.
(c) Monitoring results, including alarms, from a release detection
method required under Sec. 280.41 and Sec. 280.42 that indicate a
release may have occurred unless:
(1) The monitoring device is found to be defective, and is
immediately repaired, recalibrated or replaced, and additional
monitoring does not confirm the initial result; or
(2) In the case of inventory control, a second month of data does
not confirm the initial result.
16. In Sec. 280.52 revise paragraph (a) to read as follows:
Sec. 280.52 Release investigation and confirmation steps.
* * * * *
(a) System test. Owners and operators must conduct tests (according
to the requirements for tightness testing in Sec. 280.43(c) and Sec.
280.44(b) or, for UST systems with secondary containment and
interstitial monitoring, the integrity testing specified in Sec.
280.36) that determine whether a leak exists in that portion of the
tank that routinely contains product, the attached delivery piping, or
a breach of the interstitial space.
(1) If the system test confirms a leak, owners and operators must
repair, replace, upgrade, or close the UST system. In addition, owners
and operators must begin corrective action in accordance with subpart F
if the test results for the system, tank, or delivery piping indicate
that a release exists.
(2) Further investigation is not required if the test results for
the system, tank, and delivery piping do not indicate that a release
exists and if environmental contamination is not the basis for
suspecting a release.
(3) Owners and operators must conduct a site check as described in
paragraph (b) of this section if the test results for the system, tank,
and delivery piping do not indicate that a release exists but
environmental contamination is the basis for suspecting a release.
* * * * *
17. In Sec. 280.71 revise the Note at the end of the section to
read as follows:
Sec. 280.71 Permanent closure and changes-in-service.
* * * * *
[Note: The following cleaning and closure procedures may be used
to comply with this section:
(A) American Petroleum Institute Recommended Practice RP 1604,
“Closure of Underground Petroleum Storage Tanks”;
(B) American Petroleum Institute Standard 2015, “Requirements
for Safe Entry and Cleaning of Petroleum Storage Tanks”;
(C) American Petroleum Institute Recommended Practice 2016,
“Guidelines and Procedures for Entering and Cleaning Petroleum
Storage Tanks”;
(D) American Petroleum Institute Recommended Practice RP 1631,
“Interior Lining and Periodic Inspection of Underground Storage
Tanks,” may be used as guidance for compliance with this section;
(E) National Fire Protection Association Standard 326,
“Safeguarding of Tanks and Containers for Entry, Cleaning, or
Repair”; and
(F) The National Institute for Occupational Safety and Health
Publication 80-106, “Criteria for a Recommended Standard * * *
Working in Confined Space” may be used as guidance for conducting
safe closure procedures at some hazardous substance tanks.]
* * * * *
18. Revise Sec. 280.90 to read as follows:
Sec. 280.90 Applicability.
(a) This subpart applies to owners and operators of all petroleum
underground storage tank (UST) systems except as otherwise provided in
this section.
(b) Owners and operators of petroleum UST systems are subject to
these requirements in accordance with Sec. 280.91.
(c) State and Federal government entities whose debts and
liabilities are the debts and liabilities of a state or the United
States are exempt from the requirements of this subpart.
(d) The requirements of this subpart do not apply to owners and
operators of any UST system described in Sec. 280.10 (b), (c)(2) or
(c)(3).
(e) If the owner and operator of a petroleum underground storage
tank are separate persons, only one person is required to demonstrate
financial responsibility; however, both parties are liable in event of
noncompliance.
19. Revise Sec. 280.91 to read as follows:
Sec. 280.91 Compliance dates.
Owners of petroleum underground storage tanks must comply with the
requirements of this subpart. Previously deferred UST systems must
comply with the requirements of this subpart according to the schedule
in Sec. 280.10.
20. In Sec. 280.92 revise the definitions “Accidental release,”
“Financial reporting year,” and “Provider of financial assurance”
to read as follows:
Sec. 280.92 Definition of terms.
* * * * *
Accidental release means any sudden or nonsudden release of
petroleum arising from operating an underground storage tank that
results in a need for corrective action and/or compensation for bodily
injury or property damage neither expected nor intended by the tank
owner or operator.
* * * * *
Financial reporting year means the latest consecutive twelve-month
period for which any of the following reports used to support a
financial test is prepared:
(1) a 10-K report submitted to the SEC;
(2) an annual report of tangible net worth submitted to Dun and
Bradstreet; or
(3) annual reports submitted to the Energy Information
Administration or the Rural Utilities Service.
[[Page 71776]]
“Financial reporting year” may thus comprise a fiscal or a
calendar year period.
* * * * *
Provider of financial assurance means an entity that provides
financial assurance to an owner or operator of an underground storage
tank through one of the mechanisms listed in Sec. Sec. 280.95-280.107,
including a guarantor, insurer, risk retention group, surety, issuer of
a letter of credit, issuer of a state-required mechanism, or a state.
* * * * *
21. Revise Sec. 280.94 paragraph (a)(1) to read as follows:
Sec. 280.94 Allowable mechanisms and combinations of mechanisms.
(a) * * *
(1) An owner or operator, including a local government owner or
operator, may use any one or combination of the mechanisms listed in
Sec. Sec. 280.95 through 280.107 to demonstrate financial
responsibility under this subpart for one or more underground storage
tanks; and
* * * * *
22. In Sec. 280.95 revise paragraph s(b)(1)(ii), (b)(4)(i), (c)(5)
introductory text, (c)(5)(i) and (d) to read as follows:
Sec. 280.95 Financial test of self-insurance.
* * * * *
(b) * * *
(1) * * *
(ii) The sum of the corrective action cost estimates, the current
closure and post-closure care cost estimates, and amount of liability
coverage for which a financial test is used to demonstrate financial
responsibility to EPA under 40 CFR 264.101, 264.143, 264.145, 265.143,
265.145, 264.147, and 265.147 or to a state implementing agency under a
state program authorized by EPA under 40 CFR part 271; and
(4) * * *
(i) File financial statements annually with the U.S. Securities and
Exchange Commission, the Energy Information Administration, or the
Rural Utilities Service; or
* * * * *
(c) * * *
(5) If the financial statements of the owner or operator, and/or
guarantor, are not submitted annually to the U.S. Securities and
Exchange Commission, the Energy Information Administration or the Rural
Utilities Service, the owner or operator, and/or guarantor, must obtain
a special report by an independent certified public accountant stating
that:
(i) He has compared the data that the letter from the chief
financial officer specifies as having been derived from the latest
year-end financial statements of the owner or operator, and/or
guarantor, with the amounts in such financial statements; and
* * * * *
(d) To demonstrate that it meets the financial test under paragraph
(b) or (c) of this section, the chief financial officer of the owner or
operator, or guarantor, must sign, within 120 days of the close of each
financial reporting year, as defined by the twelve-month period for
which financial statements used to support the financial test are
prepared, a letter worded exactly as follows, except that the
instructions in brackets are to be replaced by the relevant information
and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of
the owner or operator, or guarantor]. This letter is in support of
the use of [insert: “the financial test of self-insurance,” and/or
“guarantee”] to demonstrate financial responsibility for [insert:
“taking corrective action” and/or “compensating third parties for
bodily injury and property damage”] caused by [insert: “sudden
accidental releases” or “nonsudden accidental releases” or
“accidental releases”] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate
arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are
assured by this financial test or a financial test under an
authorized State program by this [insert: “owner or operator,”
and/or “guarantor”]: [List for each facility: the name and address
of the facility where tanks assured by this financial test are
located, and whether tanks are assured by this financial test or a
financial test under a State program approved under 40 CFR part 281.
If separate mechanisms or combinations of mechanisms are being used
to assure any of the tanks at this facility, list each tank assured
by this financial test or a financial test under a State program
authorized under 40 CFR part 281 by the tank identification number
provided in the notification submitted pursuant to 40 CFR 280.22 or
the corresponding State requirements.]
A [insert: “financial test,” and/or “guarantee”] is also
used by this [insert: “owner or operator,” or “guarantor”] to
demonstrate evidence of financial responsibility in the following
amounts under other EPA regulations or state programs authorized by
EPA under 40 CFR parts 271 and 145:
————————————————————————
EPA Regulations Amount
————————————————————————
Closure (Sec. Sec. 264.143 and 265.143).. $——
Post-Closure Care (Sec. Sec. 264.145 and $——
265.145).
Liability Coverage (Sec. Sec. 264.147 and $——
265.147).
Corrective Action (Sec. Sec. 264.101(b)). $——
Plugging and Abandonment (Sec. 144.63)…. $——
Closure………………………………. $——
Post-Closure Care……………………… $——
Liability Coverage…………………….. $——
Corrective Action……………………… $——
Plugging and Abandonment……………….. $——
—————————
Total…………………………….. $——
————————————————————————
This [insert: “owner or operator,” or “guarantor”] has not
received an adverse opinion, a disclaimer of opinion, or a “going
concern” qualification from an independent auditor on his financial
statements for the latest completed fiscal year.
[Fill in the information for Alternative I if the criteria of
paragraph (b) of Sec. 280.95 are being used to demonstrate
compliance with the financial test requirements. Fill in the
information for Alternative II if the criteria of paragraph (c) of
Sec. 280.95 are being used to demonstrate compliance with the
financial test requirements.]
————————————————————————
————————————————————————
Alternative I
————————————————————————
1. Amount of annual UST aggregate coverage $——
being assured by a financial test, and/or
guarantee.
2. Amount of corrective action, closure and $——
post-closure care costs, liability coverage,
and plugging and abandonment costs covered
by a financial test, and/or guarantee.
3. Sum of lines 1 and 2…………………. $——
4. Total tangible assets………………… $——
5. Total liabilities [if any of the amount $——
reported on line 3 is included in total
liabilities, you may deduct that amount from
this line and add that amount to line 6].
6. Tangible net worth [subtract line 5 from $——
line 4].
————————————————————————
Yes / No
————————————————————————
7. Is line 6 at least $10 million?……….. ——
8. Is line 6 at least 10 times line 3?……. ——
9. Have financial statements for the latest ——
fiscal year been filed with the Securities
and Exchange Commission?
[[Page 71777]]
10. Have financial statements for the latest ——
fiscal year been filed with the Energy
Information Administration?
11. Have financial statements for the latest ——
fiscal year been filed with the Rural
Utilities Service?
12. Has financial information been provided ——
to Dun and Bradstreet, and has Dun and
Bradstreet provided a financial strength
rating of 4A or 5A? [Answer “Yes” only if
both criteria have been met.]
————————————————————————
Alternative II
————————————————————————
1. Amount of annual UST aggregate coverage $——
being assured by a test, and/or guarantee.
2. Amount of corrective action, closure and $——
post-closure care costs, liability coverage,
and plugging and abandonment costs covered
by a financial test, and/or guarantee.
3. Sum of lines 1 and 2…………………. $——
4. Total tangible assets………………… $——
5. Total liabilities [if any of the amount $——
reported on line 3 is included in total
liabilities, you may deduct that amount from
this line and add that amount to line 6].
6. Tangible net worth [subtract line 5 from $——
line 4].
7. Total assets in the U.S. [required only if $——
less than 90 percent of assets are located
in the U.S.]
————————————————————————
Yes / No
————————————————————————
8. Is line 6 at least $10 million?……….. ——
9. Is line 6 at least 6 times line 3?…….. ——
10. Are at least 90 percent of assets located ——
in the U.S.? [If “No,” complete line 11.].
11. Is line 7 at least 6 times line 3? [Fill ——
in either lines 12-15 or lines 16-18:].
12. Current assets……………………… $——
13. Current liabilities…………………. $——
14. Net working capital [subtract line 13 $——
from line 12].
15. Is line 14 at least 6 times line 3?…… ——
16. Current bond rating of most recent bond ——
issue.
17. Name of rating service………………. ——
18. Date of maturity of bond…………….. ——
19. Have financial statements for the latest ——
fiscal year been filed with the SEC, the
Energy Information Administration, or the
Rural Utilities Service?
————————————————————————
[If “No,” please attach a report from an independent certified
public accountant certifying that there are no material differences
between the data as reported in lines 4-18 above and the financial
statements for the latest fiscal year.]
[For both Alternative I and Alternative II complete the
certification with this statement.]
I hereby certify that the wording of this letter is identical to
the wording specified in 40 CFR part 280.95(d) as such regulations
were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
* * * * *
23. In Sec. 280.96 revise paragraphs (b), (c)(3), and (d) to read
as follows:
Sec. 280.96 Guarantee.
* * * * *
(b) Within 120 days of the close of each financial reporting year
the guarantor must demonstrate that it meets the financial test
criteria of Sec. 280.95 based on year-end financial statements for the
latest completed financial reporting year by completing the letter from
the chief financial officer described in Sec. 280.95(d) and must
deliver the letter to the owner or operator. If the guarantor fails to
meet the requirements of the financial test at the end of any financial
reporting year, within 120 days of the end of that financial reporting
year the guarantor shall send by certified mail, before cancellation or
nonrenewal of the guarantee, notice to the owner or operator. If the
Director of the implementing agency notifies the guarantor that he no
longer meets the requirements of the financial test of Sec. 280.95 (b)
or (c) and (d), the guarantor must notify the owner or operator within
10 days of receiving such notification from the Director. In both
cases, the guarantee will terminate no less than 120 days after the
date the owner or operator receives the notification, as evidenced by
the return receipt. The owner or operator must obtain alternative
coverage as specified in Sec. 280.114(e).
(c) * * *
(3) [Insert appropriate phrase: “On behalf of our subsidiary” (if
guarantor is corporate parent of the owner or operator); “On behalf of
our affiliate” (if guarantor is a related firm of the owner or
operator); or “Incident to our business relationship with” (if
guarantor is providing the guarantee as an incident to a substantial
business relationship with owner or operator)] [owner or operator],
guarantor guarantees to [implementing agency] and to any and all third
parties that:
In the event that [owner or operator] fails to provide alternative
coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has
determined or suspects that a release has occurred at an underground
storage tank covered by this guarantee, the guarantor, upon
instructions from the [Director], shall fund a standby trust fund in
accordance with the provisions of 40 CFR 280.112, in an amount not to
exceed the coverage limits specified above.
In the event that the [Director] determines that [owner or
operator] has failed to perform corrective action for releases arising
out of the operation of the above-identified tank(s) in accordance with
40 CFR part 280, subpart F, the guarantor upon written instructions
from the [Director] shall fund a standby trust in accordance with the
provisions of 40 CFR 280.112, in an amount not to exceed the coverage
limits specified above.
If [owner or operator] fails to satisfy a judgment or award based
on a determination of liability for bodily injury or property damage to
third parties caused by [“sudden” and/or “nonsudden”] accidental
releases arising from the operation of the above-identified tank(s), or
fails to pay an amount agreed to in settlement of a claim arising from
or alleged to arise from such injury or damage, the guarantor, upon
written instructions from the [Director], shall fund a standby trust in
accordance with the provisions of 40 CFR 280.112 to satisfy such
judgment(s), award(s), or settlement
[[Page 71778]]
agreement(s) up to the limits of coverage specified above.
* * * * *
(d) An owner or operator who uses a guarantee to satisfy the
requirements of Sec. 280.93 must establish a standby trust fund when
the guarantee is obtained. Under the terms of the guarantee, all
amounts paid by the guarantor under the guarantee will be deposited
directly into the standby trust fund in accordance with instructions
from the Director of the implementing agency under Sec. 280.112. This
standby trust fund must meet the requirements specified in Sec.
280.103.
24. In Sec. 280.97 revise paragraph (a) to read as follows:
Sec. 280.97 Insurance and risk retention group coverage.
(a) An owner or operator may satisfy the requirements of Sec.
280.93 by obtaining liability insurance that conforms to the
requirements of this section from a qualified insurer or risk retention
group. Such insurance may be in the form of a separate insurance policy
or an endorsement to an existing insurance policy.
* * * * *
25. In Sec. 280.98 revise paragraphs (b) and (d) to read as
follows:
Sec. 280.98 Surety bond.
* * * * *
(b) The surety bond must be worded as follows, except that
instructions in brackets must be replaced with the relevant information
and the brackets deleted:
Performance Bond
Date bond executed:—————————————————-
Period of coverage:—————————————————-
Principal: [legal name and business address of owner or operator]
———————————————————————–
Type of organization: [insert “individual,” “joint venture,”
“partnership,” or “corporation”]
———————————————————————–
State of incorporation (if applicable):
———————————————————————–
Surety(ies): [name(s) and business address(es)]
———————————————————————–
Scope of Coverage: [List the number of tanks at each facility and
the name(s) and address(es) of the facility(ies) where the tanks are
located. If more than one instrument is used to assure different
tanks at any one facility, for each tank covered by this instrument,
list the tank identification number provided in the notification
submitted pursuant to 40 CFR 280.22, or the corresponding state
requirement, and the name and address of the facility. List the
coverage guaranteed by the bond: “taking corrective action” and/or
“compensating third parties for bodily injury and property damage
caused by” either “sudden accidental releases” or “nonsudden
accidental releases” or “accidental releases” “arising from
operating the underground storage Tank”].
Penal sums of bond:
Per occurrence $——————————————————-
Annual aggregate $—————————————————–
Surety’s bond number:————————————————–
Know All Persons by These Presents, that we, the Principal and
Surety(ies), hereto are firmly bound to [the implementing agency],
in the above penal sums for the payment of which we bind ourselves,
our heirs, executors, administrators, successors, and assigns
jointly and severally; provided that, where the Surety(ies) are
corporations acting as co-sureties, we, the Sureties, bind ourselves
in such sums jointly and severally only for the purpose of allowing
a joint action or actions against any or all of us, and for all
other purposes each Surety binds itself, jointly and severally with
the Principal, for the payment of such sums only as is set forth
opposite the name of such Surety, but if no limit of liability is
indicated, the limit of liability shall be the full amount of the
penal sums.
Whereas said Principal is required under Subtitle I of the Solid
Waste Disposal Act, as amended, to provide financial assurance for
[insert: “taking corrective action” and/or “compensating third
parties for bodily injury and property damage caused by” either
“sudden accidental releases” or “nonsudden accidental releases”
or “accidental releases”; if coverage is different for different
tanks or locations, indicate the type of coverage applicable to each
tank or location] arising from operating the underground storage
tanks identified above, and
Whereas said Principal shall establish a standby trust fund as
is required when a surety bond is used to provide such financial
assurance;
Now, therefore, the conditions of the obligation are such that
if the Principal shall faithfully [“take corrective action, in
accordance with 40 CFR part 280, subpart F and the Director of the
state implementing agency’s instructions for,” and/or “compensate
injured third parties for bodily injury and property damage caused
by” either “sudden accidental releases” or “nonsudden accidental
releases” or “accidental releases”] arising from operating the
tank(s) indentified above, or if the Principal shall provide
alternate financial assurance, as specified in 40 CFR part 280,
subpart H, within 120 days after the date the notice of cancellation
is received by the Principal from the Surety(ies), then this
obligation shall be null and void; otherwise it is to remain in full
force and effect.
Such obligation does not apply to any of the following:
(a) Any obligation of [insert owner or operator] under a
workers’ compensation, disability benefits, or unemployment
compensation law or other similar law;
(b) Bodily injury to an employee of [insert owner or operator]
arising from, and in the course of, employment by [insert owner or
operator];
(c) Bodily injury or property damage arising from the ownership,
maintenance, use, or entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in
the care, custody, or control of, or occupied by [insert owner or
operator] that is not the direct result of a release from a
petroleum underground storage tank;
(e) Bodily injury or property damage for which [insert owner or
operator] is obligated to pay damages by reason of the assumption of
liability in a contract or agreement other than a contract or
agreement entered into to meet the requirements of 40 CFR 280.93.
The Surety(ies) shall become liable on this bond obligation only
when the Principal has failed to fulfill the conditions described
above.
Upon notification by [the Director of the implementing agency]
that the Principal has failed to [“take corrective action, in
accordance with 40 CFR part 280, subpart F and the Director’s
instructions,” and/or “compensate injured third parties”] as
guaranteed by this bond, the Surety(ies) shall either perform
[“corrective action in accordance with 40 CFR part 280 and the
Director’s instructions,” and/or “third-party liability
compensation”] or place funds in an amount up to the annual
aggregate penal sum into the standby trust fund as directed by [the
Regional Administrator or the Director] under 40 CFR 280.112.
Upon notification by [the Director] that the Principal has
failed to provide alternate financial assurance within 60 days after
the date the notice of cancellation is received by the Principal
from the Surety(ies) and that [the Director] has determined or
suspects that a release has occurred, the Surety(ies) shall place
funds in an amount not exceeding the annual aggregate penal sum into
the standby trust fund as directed by [the Director] under 40 CFR
280.112.
The Surety(ies) hereby waive(s) notification of amendments to
applicable laws, statutes, rules, and regulations and agrees that no
such amendment shall in any way alleviate its (their) obligation on
this bond.
The liability of the Surety(ies) shall not be discharged by any
payment or succession of payments hereunder, unless and until such
payment or payments shall amount in the annual aggregate to the
penal sum shown on the face of the bond, but in no event shall the
obligation of the Surety(ies) hereunder exceed the amount of said
annual aggregate penal sum.
The Surety(ies) may cancel the bond by sending notice of
cancellation by certified mail to the Principal, provided, however,
that cancellation shall not occur during the 120 days beginning on
the date of receipt of the notice of cancellation by the Principal,
as evidenced by the return receipt.
The Principal may terminate this bond by sending written notice
to the Surety(ies).
In Witness Thereof, the Principal and Surety(ies) have executed
this Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that
they are authorized to execute this surety bond on behalf of the
Principal and Surety(ies) and that the wording of this surety bond
is identical to the wording specified in 40 CFR 280.98(b) as such
regulations were constituted on the date this bond was executed.
[[Page 71779]]
Principal
[Signature(s)]
[Names(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
[State of Incorporation: ———-]
[Liability limit: $———-]
[Signature(s)]
[Names(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and
other information in the same manner as for Surety above.]
Bond premium: $———-
* * * * *
(d) The owner or operator who uses a surety bond to satisfy the
requirements of Sec. 280.93 must establish a standby trust fund when
the surety bond is acquired. Under the terms of the bond, all amounts
paid by the surety under the bond will be deposited directly into the
standby trust fund in accordance with instructions from the Director
under Sec. 280.112. This standby trust fund must meet the requirements
specified in Sec. 280.103.
26. In Sec. 280.99 revise paragraphs (b) and (c) to read as
follows:
Sec. 280.99 Letter of credit.
* * * * *
(b) The letter of credit must be worded as follows, except that
instructions in brackets are to be replaced with the relevant
information and the brackets deleted:
Irrevocable Standby Letter of Credit
[Name and address of issuing institution]
[Name and address of Director(s) of state implementing agency(ies)]
Dear Sir or Madam: We hereby establish our Irrevocable Standby
Letter of Credit No. ———- in your favor, at the request and
for the account of [owner or operator name] of [address] up to the
aggregate amount of [in words] U.S. dollars ($[insert dollar
amount]), available upon presentation [insert, if more than one
Director of a state implementing agency is a beneficiary, “by any
one of you”] of
(1) your sight draft, bearing reference to this letter of
credit, No. ———-, and
(2) your signed statement reading as follows: “I certify that
the amount of the draft is payable pursuant to regulations issued
under authority of Subtitle I of the Solid Waste Disposal Act, as
amended.”
This letter of credit may be drawn on to cover [insert: “taking
corrective action” and/or “compensating third parties for bodily
injury and property damage caused by” either “sudden accidental
releases” or “nonsudden accidental releases” or “accidental
releases”] arising from operating the underground storage tank(s)
identified below in the amount of [in words] $[insert dollar amount]
per occurrence and [in words] $[insert dollar amount] annual
aggregate:
[List the number of tanks at each facility and the name(s) and
address(es) of the facility(ies) where the tanks are located. If
more than one instrument is used to assure different tanks at any
one facility, for each tank covered by this instrument, list the
tank identification number provided in the notification submitted
pursuant to 40 CFR 280.22, or the corresponding state requirement,
and the name and address of the facility.]
The letter of credit may not be drawn on to cover any of the
following:
(a) Any obligation of [insert owner or operator] under a
workers’ compensation, disability benefits, or unemployment
compensation law or other similar law;
(b) Bodily injury to an employee of [insert owner or operator]
arising from, and in the course of, employment by [insert owner or
operator];
(c) Bodily injury or property damage arising from the ownership,
maintenance, use, or entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in
the care, custody, or control of, or occupied by [insert owner or
operator] that is not the direct result of a release from a
petroleum underground storage tank;
(e) Bodily injury or property damage for which [insert owner or
operator] is obligated to pay damages by reason of the assumption of
liability in a contract or agreement other than a contract or
agreement entered into to meet the requirements of 40 CFR 280.93.
This letter of credit is effective as of [date] and shall expire
on [date], but such expiration date shall be automatically extended
for a period of [at least the length of the original term] on
[expiration date] and on each successive expiration date, unless, at
least 120 days before the current expiration date, we notify [owner
or operator] by certified mail that we have decided not to extend
this letter of credit beyond the current expiration date. In the
event that [owner or operator] is so notified, any unused portion of
the credit shall be available upon presentation of your sight draft
for 120 days after the date of receipt by [owner or operator], as
shown on the signed return receipt.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor such
draft upon presentation to us, and we shall deposit the amount of
the draft directly into the standby trust fund of [owner or
operator] in accordance with your instructions.
We certify that the wording of this letter of credit is
identical to the wording specified in 40 CFR 280.99(b) as such
regulations were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution]
[Date]
This credit is subject to [insert “the most recent edition of
the Uniform Customs and Practice for Documentary Credits, published
and copyrighted by the International Chamber of Commerce,” or “the
Uniform Commercial Code”].
(c) An owner or operator who uses a letter of credit to satisfy
the requirements of Sec. 280.93 must also establish a standby trust
fund when the letter of credit is acquired. Under the terms of the
letter of credit, all amounts paid pursuant to a draft by the
Director of the implementing agency will be deposited by the issuing
institution directly into the standby trust fund in accordance with
instructions from the Director under Sec. 280.112. This standby
trust fund must meet the requirements specified in Sec. 280.103.
* * * * *
27. In Sec. 280.101 revise paragraph (d) to read as follows:
Sec. 280.101 State fund or other state assurance.
* * * * *
(d) The Regional Administrator will notify the state of his
determination regarding the acceptability of the state’s fund or other
assurance in lieu of financial mechanisms specified in this subpart.
Within 60 days after the Regional Administrator notifies a state that a
state fund or other state assurance is acceptable, the state must
provide to each owner or operator for which it is assuming financial
responsibility a letter or certificate describing the nature of the
state’s assumption of responsibility. The letter or certificate from
the state must include, or have attached to it, the following
information: The facility’s name and address and the amount of funds
for corrective action and/or for compensating third parties that is
assured by the state. The owner or operator must maintain this letter
or certificate on file as proof of financial responsibility in
accordance with Sec. 280.111(b)(8).
28. In Sec. 280.103 revise paragraph (b)(1) and the Trust
Agreement introductory text and section 4 to read as follows:
Sec. 280.103 Standby trust fund.
* * * * *
(b)(1) The standby trust agreement, or trust agreement, must be
worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Trust Agreement
Trust agreement, the “Agreement,” entered into as of [date] by
and between [name of the owner or operator], a [name of state]
[insert “corporation,” “partnership,” “association,” or
“proprietorship”], the “Grantor,” and [name of corporate
trustee], [insert “Incorporated in the state of ———-” or “a
national bank”], the “Trustee.”
Whereas, the United States Environmental Protection Agency,
“EPA,” an agency of the United States Government, has established
certain regulations applicable to the Grantor, requiring that an
owner or operator of an underground storage tank shall provide
assurance that funds will be available when needed for corrective
action and third-party compensation for bodily injury and property
[[Page 71780]]
damage caused by sudden and nonsudden accidental releases arising
from the operation of the underground storage tank. The attached
Schedule A lists the number of tanks at each facility and the
name(s) and address(es) of the facility(ies) where the tanks are
located that are covered by the [insert “standby” where trust
agreement is standby trust agreement] trust agreement.
[Whereas, the Grantor has elected to establish [insert either
“a guarantee,” “surety bond,” or “letter of credit”] to
provide all or part of such financial assurance for the underground
storage tanks identified herein and is required to establish a
standby trust fund able to accept payments from the instrument (This
paragraph is only applicable to the standby trust agreement.)];
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this
agreement, and the Trustee is willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as follows:
* * * * *
Section 4. Payment for [“Corrective Action” and/or “Third-Party
Liability Claims”]
The Trustee shall make payments from the Fund as [the Director
of the implementing agency] shall direct, in writing, to provide for
the payment of the costs of [insert: “taking corrective action”
and/or “compensating third parties for bodily injury and property
damage caused by” either “sudden accidental releases” or
“nonsudden accidental Releases” or “accidental releases”]
arising from operating the tanks covered by the financial assurance
mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the following:
(a) Any obligation of [insert owner or operator] under a
workers’ compensation, disability benefits, or unemployment
compensation law or other similar law;
(b) Bodily injury to an employee of [insert owner or operator]
arising from, and in the course of employment by [insert owner or
operator];
(c) Bodily injury or property damage arising from the ownership,
maintenance, use, or entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in
the care, custody, or control of, or occupied by [insert owner or
operator] that is not the direct result of a release from a
petroleum underground storage tank;
(e) Bodily injury or property damage for which [insert owner or
operator] is obligated to pay damages by reason of the assumption of
liability in a contract or agreement other than a contract or
agreement entered into to meet the requirements of 40 CFR 280.93.
The Trustee shall reimburse the Grantor, or other persons as
specified by [the Director], from the Fund for corrective action
expenditures and/or third-party liability claims in such amounts as
[the Director] shall direct in writing. In addition, the Trustee
shall refund to the Grantor such amounts as [the Director] specifies
in writing. Upon refund, such funds shall no longer constitute part
of the Fund as defined herein.
* * * * *
29. Amend Sec. 280.104 as follows:
a. By revising paragraph (b)
b. By revising paragraph (d)
c. By revising paragraph (e)
d. By adding paragraph (h)
Sec. 280.104 Local government bond rating test.
* * * * *
(b) A local government owner or operator or local government
serving as a guarantor that is not a general-purpose local government
and does not have the legal authority to issue general obligation bonds
may satisfy the requirements of Sec. 280.93 by having a currently
outstanding issue or issues of revenue bonds of $1 million or more,
excluding refunded issues, and by also having a Moody’s rating of Aaa,
Aa, A, or Baa, or a Standard & Poor’s rating of AAA, AA, A, or BBB as
the lowest rating for any rated revenue bond issued by the local
government. Where bonds are rated by both Moody’s and Standard &
Poor’s, the lower rating for each bond must be used to determine
eligibility. Bonds that are backed by credit enhancement may not be
considered in determining the amount of applicable bonds outstanding.
* * * * *
(d) To demonstrate that it meets the local government bond rating
test, the chief financial officer of a general purpose local government
owner or operator and/or guarantor must sign a letter worded exactly as
follows, except that the instructions in brackets are to be replaced by
the relevant information and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of
local government owner or operator, or guarantor]. This letter is in
support of the use of the bond rating test to demonstrate financial
responsibility for [insert: “taking corrective action” and/or
“compensating third parties for bodily injury and property
damage”] caused by [insert: “sudden accidental releases” or
“nonsudden accidental releases” or “accidental releases”] in the
amount of at least [insert: dollar amount] per occurrence and
[insert: dollar amount] annual aggregate arising from operating (an)
underground storage tank(s).
Underground storage tanks at the following facilities are
assured by this bond rating test: [List for each facility: the name
and address of the facility where tanks are assured by the bond
rating test].
The details of the issue date, maturity, outstanding amount,
bond rating, and bond rating agency of all outstanding bond issues
that are being used by [name of local government owner or operator,
or guarantor] to demonstrate financial responsibility are as
follows: [complete table]
——————————————————————————————————————————————————–
Outstanding
Issue date Maturity date amount Bond rating Rating agency
——————————————————————————————————————————————————–
[Moody’s or Standard & Poor’s]
——————————————————————————————————————————————————–
The total outstanding obligation of [insert amount], excluding
refunded bond issues, exceeds the minimum amount of $1 million. All
outstanding general obligation bonds issued by this government that
have been rated by Moody’s or Standard & Poor’s are rated as at
least investment grade (Moody’s Baa or Standard & Poor’s BBB) based
on the most recent ratings published within the last 12 months.
Neither rating service has provided notification within the last 12
months of downgrading of bond ratings below investment grade or of
withdrawal of bond rating other than for repayment of outstanding
bond issues.
I hereby certify that the wording of this letter is identical to
the wording specified in 40 CFR part 280.104(d) as such regulations
were constituted on the date shown immediately below.
[Date]—————————————————————–
[Signature]————————————————————
[Name]—————————————————————–
[Title]—————————————————————-
(e) To demonstrate that it meets the local government bond rating
test, the chief financial officer of local government owner or operator
and/or guarantor other than a general purpose government must sign a
letter worded exactly as follows, except that the instructions in
brackets are to be replaced by the relevant information and the
brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of
local government owner or operator, or guarantor]. This letter is in
support of the use of the bond rating test to demonstrate financial
responsibility for [insert: “taking corrective action” and/or
“compensating third parties for bodily injury and property
damage”] caused by [insert: “sudden accidental releases” or
“nonsudden accidental releases” or “accidental releases”] in the
amount of at least [insert: dollar amount] per occurrence and
[insert: dollar amount] annual aggregate arising from
[[Page 71781]]
operating (an) underground storage tank(s). This local government is
not organized to provide general governmental services and does not
have the legal authority under state law or constitutional
provisions to issue general obligation debt.
Underground storage tanks at the following facilities are
assured by this bond rating test: [List for each facility: the name
and address of the facility where tanks are assured by the bond
rating test].
The details of the issue date, maturity, outstanding amount,
bond rating, and bond rating agency of all outstanding revenue bond
issues that are being used by [name of local government owner or
operator, or guarantor] to demonstrate financial responsibility are
as follows: [complete table]
——————————————————————————————————————————————————–
Outstanding
Issue date Maturity date amount Bond rating Rating agency
——————————————————————————————————————————————————–
[Moody’s or Standard & Poor’s]
——————————————————————————————————————————————————–
The total outstanding obligation of [insert amount], excluding
refunded bond issues, exceeds the minimum amount of $1 million. All
outstanding revenue bonds issued by this government that have been
rated by Moody’s or Standard & Poor’s are rated as at least
investment grade (Moody’s Baa or Standard & Poor’s BBB) based on the
most recent ratings published within the last 12 months. The revenue
bonds listed are not backed by third-party credit enhancement or
insured by a municipal bond insurance company. Neither rating
service has provided notification within the last 12 months of
downgrading of bond ratings below investment grade or of withdrawal
of bond rating other than for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to
the wording specified in 40 CFR part 280.104(e) as such regulations
were constituted on the date shown immediately below.
[Date]—————————————————————–
[Signature]————————————————————
[Name]—————————————————————–
[Title]—————————————————————-
* * * * *
(h) If the local government owner or operator fails to obtain
alternate assurance within 150 days of finding that it no longer meets
the requirements of the bond rating test or within 30 days of
notification by the Director of the implementing agency that it no
longer meets the requirements of the bond rating test, the owner or
operator must notify the Director of such failure within 10 days.
30. In Sec. 280.105 revise paragraph (c) and the Letter From Chief
Financial Officer to read as follows:
Sec. 280.105 Local government financial test.
* * * * *
(c) To demonstrate that it meets the financial test under paragraph
(b) of this section, the chief financial officer of the local
government owner or operator, must sign, within 120 days of the close
of each financial reporting year, as defined by the twelve-month period
for which financial statements used to support the financial test are
prepared, a letter worded exactly as follows, except that the
instructions in brackets are to be replaced by the relevant information
and the brackets deleted:
Letter From Chief Financial Officer
I am the chief financial officer of [insert: name and address of
the owner or operator]. This letter is in support of the use of the
local government financial test to demonstrate financial
responsibility for [insert: “taking corrective action” and/or
“compensating third parties for bodily injury and property
damage”] caused by [insert: “sudden accidental releases” or
“nonsudden accidental releases” or “accidental releases”] in the
amount of at least [insert: dollar amount] per occurrence and
[insert: dollar amount] annual aggregate arising from operating [an]
underground storage tank[s].
Underground storage tanks at the following facilities are
assured by this financial test [List for each facility: the name and
address of the facility where tanks assured by this financial test
are located. If separate mechanisms or combinations of mechanisms
are being used to assure any of the tanks at this facility, list
each tank assured by this financial test by the tank identification
number provided in the notification submitted pursuant to 40 CFR
part 280.22 or the corresponding state requirements.]
This owner or operator has not received an adverse opinion, or a
disclaimer of opinion from an independent auditor on its financial
statements for the latest completed fiscal year. Any outstanding
issues of general obligation or revenue bonds, if rated, have a
Moody’s rating of Aaa, Aa, A, or Baa or a Standard and Poor’s rating
of AAA, AA, A, or BBB; if rated by both firms, the bonds have a
Moody’s rating of Aaa, Aa, A, or Baa and a Standard and Poor’s
rating of AAA, AA, A, or BBB.
Worksheet for Municipal Financial Test
Part I: Basic Information
1. Total Revenues
a. Revenues (dollars)——————–
Value of revenues excludes liquidation of investments and
issuance of debt. Value includes all general fund operating and non-
operating revenues, as well as all revenues from all other
governmental funds including enterprise, debt service, capital
projects, and special revenues, but excluding revenues to funds held
in a trust or agency capacity.
b. Subtract interfund transfers (dollars)——————–
c. Total Revenues (dollars)——————–
2. Total Expenditures
a. Expenditures (dollars)——————–
Value consists of the sum of general fund operating and non-
operating expenditures including interest payments on debt, payments
for retirement of debt principal, and total expenditures from all
other governmental funds including enterprise, debt service, capital
projects, and special revenues.
b. Subtract interfund transfers (dollars)——————–
c. Total Expenditures (dollars) ——————–
3. Local Revenues
a. Total Revenues (from 1c) (dollars)——————–
b. Subtract total intergovernmental transfers (dollars)————
——–
c. Local Revenues (dollars)——————–
4. Debt Service
a. Interest and fiscal charges (dollars)——————–
b. Add debt retirement (dollars)——————–
c. Total Debt Service (dollars)——————–
5. Total Funds (Dollars)——————–
(Sum of amounts held as cash and investment securities from all
funds, excluding amounts held for employee retirement funds, agency
funds, and trust funds)
6. Population (Persons)——————–
Part II: Application of Test
7. Total Revenues to Population
a. Total Revenues (from 1c)——————–
b. Population (from 6)——————–
c. Divide 7a by 7b——————–
d. Subtract 417——————–
e. Divide by 5,212——————–
f. Multiply by 4.095——————–
8. Total Expenses to Population
a. Total Expenses (from 2c)——————–
b. Population (from 6)——————–
c. Divide 8a by 8b——————–
d. Subtract 524——————–
e. Divide by 5,401——————–
f. Multiply by 4.095——————–
9. Local Revenues to Total Revenues
a. Local Revenues (from 3c)——————–
[[Page 71782]]
b. Total Revenues (from 1c)——————–
c. Divide 9a by 9b——————–
d. Subtract .695——————–
e. Divide by .205——————–
f. Multiply by 2.840——————–
10. Debt Service to Population
a. Debt Service (from 4c)——————–
b. Population (from 6)——————–
c. Divide 10a by 10b—————-
d. Subtract 51—————-
e. Divide by 1,038—————-
f. Multiply by -1.866—————-
11. Debt Service to Total Revenues
a. Debt Service (from 4c)—————-
b. Total Revenues (from 1c)—————-
c. Divide 11a by 11b—————-
d. Subtract .068—————-
e. Divide by .259—————-
f. Multiply by -3.533—————-
12. Total Revenues to Total Expenses
a. Total Revenues (from 1c)—————-
b. Total Expenses (from 2c)—————-
c. Divide 12a by 12b—————-
d. Subtract .910—————-
e. Divide by .899—————-
f. Multiply by 3.458—————-
13. Funds Balance to Total Revenues
a. Total Funds (from 5)—————-
b. Total Revenues (from 1c)—————-
c. Divide 13a by 13b—————-
d. Subtract .891—————-
e. Divide by 9.156—————-
f. Multiply by 3.270—————-
14. Funds Balance to Total Expenses
a. Total Funds (from 5)—————-
b. Total Expenses (from 2c)—————-
c. Divide 14a by 14b—————-
d. Subtract .866—————-
e. Divide by 6.409—————-
f. Multiply by 3.270—————-
15. Total Funds to Population—————-
a. Total Funds (from 5)—————-
b. Population (from 6)—————-
c. Divide 15a by 15b—————-
d. Subtract 270—————-
e. Divide by 4,548—————-
f. Multiply by 1.866—————-
16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f + 15f +
4.937—————-
I hereby certify that the financial index shown on line 16 of
the worksheet is greater than zero and that the wording of this
letter is identical to the wording specified in 40 CFR part
280.105(c) as such regulations were constituted on the date shown
immediately below.
[Date]
[Signature]
[Name]
[Title]
* * * * *
31. Amend Sec. 280.106 as follows:
a. By revising paragraph (a)(1)
b. By revising paragraph (b)
c. By revising paragraph (d)(7)(d)
d. By revising paragraph (e)(7)(d)
e. By revising paragraph (e)(8)(d)
Sec. 280.106 Local government guarantee.
(a) * * *
(1) Demonstrate that it meets the bond rating test requirement of
Sec. 280.104 and deliver a copy of the chief financial officer’s
letter as contained in Sec. 280.104(d) and Sec. 280.104(e) to the
local government owner or operator; or
* * * * *
(b) If the local government guarantor is unable to demonstrate
financial assurance under any of Sec. Sec. 280.104, 280.105,
280.107(a), 280.107(b), or 280.107(c), at the end of the financial
reporting year, the guarantor shall send by certified mail, before
cancellation or non-renewal of the guarantee, notice to the owner or
operator. The guarantee will terminate no less than 120 days after the
date the owner or operator receives the notification, as evidenced by
the return receipt. The owner or operator must obtain alternative
coverage as specified in Sec. 280.114(e).
* * * * *
(d) * * *
(7) * * *
(d) Property damage to any property owned, rented, loaned to, in
the care, custody, or control of, or occupied by [insert: local
government owner or operator] that is not the direct result of a
release from a petroleum underground storage tank;
* * * * *
(e) * * *
(7) * * *
(d) Property damage to any property owned, rented, loaned to, in
the care, custody, or control of, or occupied by [insert: local
government owner or operator] that is not the direct result of a
release from a petroleum underground storage tank;
* * * * *
(8) * * *
(d) Property damage to any property owned, rented, loaned to, in
the care, custody, or control of, or occupied by [insert: local
government owner or operator] that is not the direct result of a
release from a petroleum underground storage tank;
* * * * *
32. In Sec. 280.107 revise paragraph (d) to read as follows:
Sec. 280.107 Local government fund.
* * * * *
(d) To demonstrate that it meets the requirements of the local
government fund, the chief financial officer of the local government
owner or operator and/or guarantor must sign a letter worded exactly as
follows, except that the instructions in brackets are to be replaced by
the relevant information and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of
local government owner or operator, or guarantor]. This letter is in
support of the use of the local government fund mechanism to
demonstrate financial responsibility for [insert: “taking
corrective action” and/or “compensating third parties for bodily
injury and property damage”] caused by [insert: “sudden accidental
releases” or “nonsudden accidental releases” or “accidental
releases”] in the amount of at least [insert: dollar amount] per
occurrence and [insert: dollar amount] annual aggregate arising from
operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are
assured by this local government fund mechanism: [List for each
facility: the name and address of the facility where tanks are
assured by the local government fund].
[Insert: “The local government fund is funded for the full
amount of coverage required under Sec. 280.93, or funded for part
of the required amount of coverage and used in combination with
other mechanism(s) that provide the remaining coverage.” or “The
local government fund is funded for five times the full amount of
coverage required under Sec. 280.93, or funded for part of the
required amount of coverage and used in combination with other
mechanisms(s) that provide the remaining coverage,” or “A payment
is made to the fund once every year for seven years until the fund
is fully-funded and [name of local government owner or operator] has
available bonding authority, approved through voter referendum, of
an amount equal to the difference between the required amount of
coverage and the amount held in the dedicated fund” or “A payment
is made to the fund once every year for seven years until the fund
is fully-funded and I have attached a letter signed by the State
Attorney General stating that (1) the use of the bonding authority
will not increase the local government’s debt beyond the legal debt
ceilings established by the relevant state laws and (2) that prior
voter approval is not necessary before use of the bonding
authority”].
The details of the local government fund are as follows:
Amount in Fund (market value of fund at close of last fiscal
year):———-
[If fund balance is incrementally funded as specified in Sec.
280.107(c), insert:
Amount added to fund in the most recently completed fiscal year:—-
——
Number of years remaining in the pay-in period: ———-]
A copy of the state constitutional provision, or local
government statute, charter, ordinance or order dedicating the fund
is attached.
I hereby certify that the wording of this letter is identical to
the wording specified in 40 CFR 280.107(d) as such regulations were
constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
* * * * *
[[Page 71783]]
33. In Sec. 280.109 revise paragraph (b) (3) to read as follows:
Sec. 280.109 Cancellation or nonrenewal by a provider of financial
assurance.
* * * * *
(b) * * *
(3) The evidence of the financial assistance mechanism subject to
the termination maintained in accordance with Sec. 280.111(b).
34. In Sec. 280.111 revise paragraphs (b)(9)(ii) and (iii) to read
as follows:
Sec. 280.111 Recordkeeping.
* * * * *
(b) * * *
(9) * * *
(ii) Year-end financial statements for the most recent completed
financial reporting year showing the amount in the fund. If the fund is
established under Sec. 280.107(c) using incremental funding backed by
bonding authority, the financial statements must show the previous
year’s balance, the amount of funding during the year, and the closing
balance in the fund.
(iii) If the fund is established under Sec. 280.107(c) using
incremental funding backed by bonding authority, the owner or operator
must also maintain documentation of the required bonding authority,
including either the results of a voter referendum (under Sec.
280.107(c)(1)), or attestation by the State Attorney General as
specified under Sec. 280.107(c)(2).
* * * * *
35. Revise Sec. 280.113 to read as follows:
Sec. 280.113 Release from the requirements.
An owner or operator is no longer required to maintain financial
responsibility under this subpart for an underground storage tank after
the tank has been permanently closed or, if corrective action is
required, after corrective action has been completed and the tank has
been permanently closed as required by 40 CFR part 280, subpart G.
36. Add Subpart J to read as follows:
Subpart J–Operator Training
Sec.
280.240 General requirement for all UST systems.
280.241 Designation of operators.
280.242 Requirements for operator training.
280.243 Timing of operator training.
280.244 Retraining.
280.245 Documentation.
Subpart J–Operator Training
Sec. 280.240 General requirement for all UST systems.
Not later than [Three years after effective date of rule], all
owners and operators of UST systems must ensure they have designated
Class A, Class B, and Class C operators who meet the requirements of
this subpart.
Sec. 280.241 Designation of operators.
UST system owners and operators must designate:
(a) At least one Class A and one Class B operator for each UST or
group of USTs at a facility; and
(b) Each individual who meets the definition of Class C operator at
the UST facility as a Class C operator. Class C operators must be
employees of the UST system owner and operator.
Sec. 280.242 Requirements for operator training.
UST system owners and operators must ensure Class A, Class B, and
Class C operators meet the requirements of this section. Any individual
designated for more than one operator class must successfully complete
the required training program or comparable examination according to
the operator class in which the individual is designated.
(a) Class A operators. Each designated Class A operator must either
be trained in accordance with paragraphs (a)(1) and (a)(2) of this
section or pass a comparable examination in accordance with paragraph
(e) of this section. Class A operators must receive training from an
independent trainer.
(1) At a minimum, the training program for the Class A operator
must provide general knowledge of the requirements in this paragraph.
At a minimum, the training must teach the Class A operators, as
applicable, on the purpose, methods, and function of:
(i) Spill and overfill prevention;
(ii) Release detection;
(iii) Corrosion protection;
(iv) Emergency response;
(v) Product and equipment compatibility;
(vi) Financial responsibility;
(vii) Notification and storage tank registration;
(viii) Temporary and permanent closure;
(ix) Related reporting and recordkeeping;
(x) Environmental and regulatory consequences of releases; and
(xi) Training requirements for Class B and Class C operators.
(2) At a minimum, the training program must evaluate Class A
operators to determine these individuals have the knowledge and skills
to make informed decisions regarding compliance and determine whether
appropriate individuals are fulfilling the operation, maintenance, and
recordkeeping requirements for UST systems in accordance with paragraph
(a)(1) of this section.
(b) Class B operators. Each designated Class B operator must either
receive training in accordance with paragraphs (b)(1) and (b)(2) of
this section or pass a comparable examination, in accordance with
paragraph (e) of this section. Class B operators must receive training
from an independent trainer.
(1) At a minimum, the training program for the Class B operator
must cover either: General requirements that encompass all regulatory
requirements and typical equipment used at UST facilities; or site-
specific requirements which address only the regulatory requirements
and equipment specific to the facility. At a minimum, the training
program for Class B operators must teach the Class B operator, as
applicable, on the purpose, methods, and function of:
(i) Operation and maintenance;
(ii) Spill and overfill prevention;
(iii) Release detection and related reporting;
(iv) Corrosion protection and related testing;
(v) Emergency response;
(vi) Product and equipment compatibility;
(vii) Reporting and recordkeeping;
(viii) Environmental and regulatory consequences of releases; and
(ix) Training requirements for Class C operator.
(2) At a minimum, the training program must evaluate Class B
operators to determine these individuals have the knowledge and skills
to implement applicable UST regulatory requirements in the field on the
components of typical UST systems or, as applicable, site-specific
equipment used at an UST facility in accordance with paragraph (b)(1)
of this section.
(c) Class C operators. Each designated Class C operator must
either: Be trained by a Class A or Class B operator in accordance with
paragraphs (c)(1) and (c)(2) of this section; complete a training
program in accordance with paragraphs (c)(1) and (c)(2) of this
section; or pass a comparable examination, in accordance with paragraph
(e) of this section.
(1) At a minimum, the training program for the Class C operator
must teach the Class C operators to take appropriate actions in
response to:
(i) Emergencies; and
(ii) Alarms caused by spills or releases from the UST system.
(2) At a minimum, the training program must evaluate Class C
operators to determine these individuals have the knowledge and skills
to take appropriate
[[Page 71784]]
action in response to emergencies (including situations posing an
immediate danger or threat to the public or to the environment and that
require immediate action) or alarms caused by spills or releases from
an underground storage tank system.
(d) Training program. Any training program must meet the minimum
requirements of this section and include an evaluation through testing,
a practical demonstration, or another approach acceptable to the
implementing agency. The evaluation component of the training program
must be developed and administered by an independent organization or
the implementing agency or delegated authority.
(e) Comparable Examination. A comparable examination must, at a
minimum, test the knowledge of the Class A, Class B, or Class C
operators in accordance with the requirements of paragraphs (a), (b),
(c) of this section, as applicable. The examination must be developed
and administered by an independent organization or the implementing
agency or delegated authority.
Sec. 280.243 Timing of operator training.
(a) An owner and operator must ensure that designated Class A,
Class B, and Class C operators meet requirements in Sec. 280.242
according to the following schedule:
Phase-In Schedule for Operator Training
—————————————————————————————————————-
Criteria Date when operator training or comparable examination is required
—————————————————————————————————————-
One or more USTs at the facility were [1 year after effective date of rule].
installed on or before 12/22/1988.
No USTs at the facility were installed on [2 years after effective date of rule].
or before 12/22/1988 and at least one
UST at the facility was installed on or
before 12/22/1998.
All USTs at the facility were installed [3 years after effective date of rule].
after 12/22/1998.
—————————————————————————————————————-
(b) Class A and Class B operators designated after the applicable
effective date indicated in the schedule above must meet requirements
in Sec. 280.242 within 30 days of assuming duties.
(c) Class C operators designated after the applicable effective
date indicated in the schedule above must be trained before assuming
duties of a Class C operator.
Sec. 280.244 Retraining.
Class A and Class B operators of UST systems determined by the
implementing agency to be out of compliance must complete a training
program or comparable examination in accordance with requirements in
Sec. 280.242. At a minimum, the training must cover the area(s)
determined to be out of compliance. UST system owners and operators
must ensure Class A and Class B operators are retrained pursuant to
this section no later than 30 days from the date the implementing
agency determines the facility is out of compliance except in one of
the following situations:
(a) Class A and Class B operators take annual refresher training.
Refresher training for Class A and Class B operators must cover all
applicable requirements in Sec. 280.242, or
(b) The implementing agency, at its discretion, grants a waiver of
this retraining requirement to either the Class A or Class B operator
or both.
Sec. 280.245 Documentation.
Owners and operators of underground storage tank systems must
maintain a list of designated Class A, Class B, and Class C operators
and maintain records verifying that training and retraining, as
applicable, have been completed, in accordance with Sec. 280.34 as
follows:
(a) The list must:
(1) Identify all Class A, Class B, and Class C operators at the
facility over the last three years; and
(2) Include names, class of operator trained, date assumed duties,
date each completed initial training, and any retraining.
(b) Records verifying completion of training or retraining must be
a paper or electronic record for Class A, Class B, and Class C
operators. The records, at a minimum, must identify name of trainee,
date trained, and operator training class completed. Owners and
operators must maintain these records for as long as Class A, Class B,
and Class C operators are designated. The following requirements also
apply to the following types of training:
(1) Records from classroom or field training programs or a
comparable examination must, at a minimum, be signed by the trainer or
examiner and list the printed name of the trainer or examiner and the
company name, address, and phone number;
(2) Records from computer-based training must, at a minimum,
indicate the name of the training program and web address, if Internet-
based; and
(3) Records of retraining must include those areas on which the
Class A or Class B operator has been retrained.
37. Appendix III to Part 280 is revised to read as follows:
Appendix III to Part 280–Statement for Shipping Tickets and Invoices
Note. A federal law (the Solid Waste Disposal Act, as amended),
requires owners of certain underground storage tanks to notify
implementing agencies of the existence of their tanks. Notifications
must be made within 30 days of bringing the tank into use. Consult
EPA’s regulations at 40 CFR 280.22 to determine if you are affected
by this law.
BILLING CODE 6560-50-P
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BILLING CODE 6560-50-C
PART 281–APPROVAL OF STATE UNDERGROUND STORAGE TANK PROGRAMS
38. Revise Part 281 to read as follows:
PART 281–APPROVAL OF STATE UNDERGROUND STORAGE TANK PROGRAMS
Subpart A–Purpose, General Requirements and Scope
Sec.
281.10 Purpose.
281.11 General requirements.
281.12 Scope and definitions.
Subpart B–Components of a Program Application
Sec.
281.20 Program application.
281.21 Description of state program.
281.22 Procedures for adequate enforcement.
281.23 Memorandum of agreement.
281.24 Attorney General’s statement.
Subpart C–Criteria for No Less Stringent
Sec.
281.30 New UST system design, construction, installation, and
notification.
281.31 Upgrading existing UST systems.
281.32 General operating requirements.
281.33 Release detection.
281.34 Release reporting, investigation, and confirmation.
281.35 Release response and corrective action.
281.36 Out-of-service UST systems and closure.
281.37 Financial responsibility for UST systems containing
petroleum.
281.38 Lender liability.
281.39 Operator training.
Subpart D–Adequate Enforcement of Compliance
Sec.
281.40 Requirements for compliance program and authority.
281.41 Requirements for enforcement authority.
281.42 Requirements for public participation.
281.43 Sharing of information.
Subpart E–Approval Procedures
Sec.
281.50 Approval procedures for state programs.
281.51 Revision of approved state programs.
Subpart F–Withdrawal of Approval of State Programs
Sec.
281.60 Criteria for withdrawal of approval of state programs.
281.61 Procedures for withdrawal of approval of state programs.
Authority: Sections 2002, 9004, 9005, 9006 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976, as amended (42 U.S.C. 6912, 6991(c), (d), (e)).
Subpart A–Purpose, General Requirements and Scope
Sec. 281.10 Purpose.
(a) This part specifies the requirements that state programs must
meet for approval by the Administrator under Sec. 9004 of the Solid
Waste Disposal Act, and the procedures EPA will follow in approving,
revising and withdrawing approval of state programs.
(b) State submissions for program approval must be in accordance
with the procedures set out in this part.
(c) A state may apply for approval under this part at any time
after the promulgation of release detection, prevention, and corrective
action regulations under Sec. 9003 of the Solid Waste Disposal Act.
(d) Any state program approved by the Administrator under this part
shall at all times be conducted in accordance with the requirements of
this part.
Sec. 281.11 General Requirements.
(a) State Program Elements. The following substantive elements of a
state program must be addressed in a state application for approval:
(1) Requirements for all existing and new underground storage
tanks:
(i) New UST systems (design, construction, installation, and
notification);
(ii) Upgrading of existing UST systems;
(iii) General operating requirements;
(iv) Release detection;
(v) Release reporting, investigation, and confirmation;
(vi) Out-of-service USTs and closure;
(vii) Release response and corrective action;
(viii) Financial responsibility for UST systems containing
petroleum; and
(ix) Operator training.
(2) Provisions for adequate enforcement of compliance with the
above program elements.
(b) Final Approval. The state must demonstrate that its
requirements under each state program element for existing and new UST
systems are no less stringent than the corresponding federal
requirements as set forth in subpart C of this part. The state must
also demonstrate that it has a program that provides adequate
enforcement of compliance with these requirements.
(c) States with programs approved under this part are authorized to
administer the state program in lieu of the federal program and will
have primary enforcement responsibility with respect to the
requirements of the approved program. EPA retains authority to take
enforcement action in approved states as necessary and will notify the
designated lead state agency of any such intended action.
Sec. 281.12 Scope and Definitions.
(a) Scope
(1) The Administrator may approve either partial or complete state
programs. A “partial” state program regulates either solely UST
systems containing petroleum or solely UST systems containing hazardous
substances. If a “partial” state program is approved, EPA will
administer the remaining part of the program. A “complete” state
program regulates both petroleum and hazardous substance tanks.
(2) EPA will administer the UST program in Indian country, except
where Congress has clearly expressed an intention to grant a state
authority to regulate petroleum and hazardous substance USTs in Indian
country. In either case, this decision will not impair a state’s
ability to obtain program approval for petroleum and/or hazardous
substances in non-Indian country in accordance with this part.
(3) Nothing in this subpart precludes a state from:
(i) Adopting or enforcing requirements that are more stringent or
more extensive than those required under this part; or
(ii) Operating a program with a greater scope of coverage than that
required under this part. Where an approved state program has a greater
scope of coverage than required by federal law, the additional coverage
is not part of the federally-approved program.
(b) Definitions
(1) The definitions in part 280 apply to this entire part.
(2) For the purposes of this part the term “final approval” means
the approval received by a state program that meets the requirements in
Sec. 281.11(b).
Subpart B–Components of a Program Application
Sec. 281.20 Program Application.
Any state that seeks to administer a program under this part must
submit an application containing the following parts:
(a) A transmittal letter from the Governor of the state requesting
program approval;
(b) A description in accordance with Sec. 281.21 of the state
program and operating procedures;
(c) A demonstration of the state’s procedures to ensure adequate
enforcement;
[[Page 71792]]
(d) A Memorandum of Agreement outlining roles and responsibilities
of EPA and the implementing agency;
(e) An Attorney General’s statement in accordance with Sec. 281.25
certifying to applicable state authorities; and
(f) Copies of all applicable state statutes and regulations.
Note to Sec. 281.20: EPA has designed an optional application
form that is available for use by state applicants.
Sec. 281.21 Description of State Program.
A state seeking to administer a program under this part must submit
a description of the program it proposes to administer under state law
in lieu of the federal program. The description of a state’s existing
or planned program must include:
(a) The scope of the state program:
(1) whether the state program regulates UST systems containing
petroleum or hazardous substances, or both;
(2) whether the state program is more stringent or broader in scope
than the federal program, and in what ways; and
(3) whether the state has any existing authority over Indian lands
or has existing agreements with Indian Tribes relevant to the
regulation of underground storage tanks.
(b) The organization and structure of the state and local agencies
with responsibility for administering the program. The jurisdiction and
responsibilities of all state and local implementing agencies must be
delineated, appropriate procedures for coordination set forth, and one
state agency designated as a “lead agency” to facilitate
communications between EPA and the state.
(c) Staff resources to carry out and enforce the required state
program elements, both existing and planned, including the number of
employees, agency where employees are located, general duties of the
employees, and current limits or restrictions on hiring or utilization
of staff.
(d) An existing state funding mechanism to meet the estimated costs
of administering and enforcing the required state program elements, and
any restrictions or limitations upon this funding.
Sec. 281.22 Procedures for Adequate Enforcement.
A state must submit a description of its compliance monitoring and
enforcement procedures, including related state administrative or
judicial review procedures.
Sec. 281.23 Memorandum of Agreement.
EPA and the approved state will negotiate a Memorandum of Agreement
(MOA) containing proposed areas of coordination and shared
responsibilities between the state and EPA and separate EPA and state
roles and responsibilities in areas including, but not limited to:
Implementation of partial state programs; enforcement; compliance
monitoring; EPA oversight; and sharing and reporting of information. At
the time of approval, the MOA must be signed by the Regional
Administrator and the appropriate official of the state lead agency.
Sec. 281.24 Attorney General’s Statement.
(a) A state must submit a written demonstration from the Attorney
General that the laws and regulations of the state provide adequate
authority to carry out the program described under Sec. 281.21 and to
meet other requirements of this part. This statement may be signed by
independent legal counsel for the state rather than the Attorney
General, provided that such counsel has full authority to independently
represent the state Agency in court on all matters pertaining to the
state program. This statement must include citations to the specific
statutes, administrative regulations, and where appropriate, judicial
decisions that demonstrate adequate authority to regulate and enforce
requirements for UST systems. State statutes and regulations cited by
the state Attorney General must be fully effective when the program is
approved.
(b) If a state currently has authority over underground storage
tank activities on Indian country, the statement must contain an
appropriate analysis of the state’s authority.
Subpart C–Criteria for No Less Stringent
Sec. 281.30 New UST System Design, Construction, Installation, and
Notification.
In order to be considered no less stringent than the corresponding
federal requirements for new UST system design, construction,
installation, and notification, the state must have requirements that
ensure all new underground storage tanks, and the attached piping in
contact with the ground and used to convey the regulated substance
stored in the tank, conform to the following:
(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. Unless the state requires
manufacturer and installer financial responsibility and installer
certification in accordance with Sec. 9003(i)(2) of the Solid Waste
Disposal Act, then the state must meet the following:
(1) Tanks and piping replaced or installed after the state’s
submission of its state program approval or revision application must
use interstitial monitoring within secondary containment in accordance
with Sec. 9003(i)(1) of the Solid Waste Disposal Act.
(2) Motor fuel dispenser systems installed and connected to an UST
system after the state’s submission of its state program approval or
revisions application must be equipped with under-dispenser containment
in accordance with Sec. 9003(i)(1) of the Solid Waste Disposal Act.
Note to paragraph (a): Codes of practice developed by
nationally-recognized organizations and national independent testing
laboratories may be used to demonstrate that the state program
requirements are no less stringent in this area.;
(b) Be provided with equipment to prevent spills 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. Flow restrictors used in vent lines are not allowable
forms of overfill prevention when overfill prevention is installed
or replaced after the state applies for state program approval or
revision.
(c) All UST system owners and operators must notify the
implementing state agency of the existence of any new UST system and
adequately notify the implementing state agency within a reasonable
timeframe when assuming ownership of an UST system using a form
designated by the state agency.
Sec. 281.31 Upgrading UST Systems.
In order to be considered no less stringent than the corresponding
federal upgrading requirements, the state must have requirements that
ensure UST systems installed prior to the state applying for state
program approval or revision meet the requirements of Sec. 281.30; are
upgraded to prevent releases for their operating life due to corrosion,
and spills, and overfills; or are permanently closed with the following
exceptions:
(a) Upgrade Requirements for Previously Deferred UST Systems.
Previously deferred wastewater treatment tank systems, airport hydrant
fuel distribution systems, and UST systems with field-constructed tanks
where installation commenced before the state’s submission of its state
program approval or revision application must, within three years of
the effective date of this section, as amended, or prior to the state’s
[[Page 71793]]
submission of its state program approval or revision application,
whichever date is later, meet the requirements of Sec. 281.30 or be
permanently closed.
(b) Upgrade Requirements for Other UST Systems. States may allow
UST systems to be upgraded if the state determines that the upgrade is
appropriate to prevent releases for the operating life of the UST
system due to corrosion and spill or overfills.
Sec. 281.32 General Operating Requirements.
In order to be considered no less stringent than the corresponding
federal general operating requirements, the state must have
requirements that ensure all new and existing UST systems conform to
the following:
(a) Prevent spills and overfills by ensuring that the space in the
tank is sufficient to receive the volume to be transferred and that the
transfer operation is monitored constantly;
(b) Where equipped with cathodic protection, be operated and
maintained by a person with sufficient training and experience in
preventing corrosion, and in a manner that ensures that no releases
occur during the operating life of the UST system;
Note to paragraph (b): Codes of practice developed by
nationally-recognized organizations and national independent testing
laboratories may be used to demonstrate the state program
requirements are no less stringent.
(c) Be made of or lined with materials that are compatible with
the substance stored;
(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 operating lives;
(e) Have spill and overfill prevention equipment periodically
tested in a manner and frequency that ensures its functionality for
the operating life of the equipment and have the integrity of
secondary containment periodically tested in a manner and frequency
that prevents releases during the operating life of the UST system,
except on equipment not required to be tested by 40 CFR part 280.
(f) Have operation and maintenance walkthrough inspections
periodically conducted in a manner and frequency that ensures proper
operation and maintenance for the operating life of the UST system.
(g) Have records of monitoring, testing, repairs, and operation
and maintenance walkthrough inspections. These records must be made
readily available when requested by the implementing agency.
Sec. 281.33 Release Detection.
In order to be considered no less stringent than the corresponding
federal requirements for release detection, the state must have
requirements that at a minimum ensure all UST systems are provided with
release detection that conforms to the following:
(a) General Methods. Release detection requirements for owners and
operators must consist of a method, or combination of methods, that is:
(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 system 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.
(2) Designed, installed, calibrated, operated and maintained so
that releases will be detected in accordance with the capabilities of
the method;
(3) Operated and maintained, and electronic and mechanical
components are tested periodically, in a manner and frequency that
ensures proper operation to detect releases for the operating life of
the release detection equipment.
(b) Phase-in of requirements. Release detection requirements must,
at a minimum, be applied at all UST systems, except for UST systems
previously deferred under Sec. 280.10(a)(1), prior to the state’s
submission of its state program approval or revision application.
Release detection requirements must, at a minimum, be scheduled to be
applied to previously deferred UST systems as follows:
(1) Immediately when a new previously deferred UST system is
installed, and
(2) For any wastewater treatment tank system, airport hydrant fuel
distribution system, or UST system with field constructed tanks
installed prior to the state’s submission of its state program approval
or revision application, within three years of the effective date of
this section, as amended, or prior to the state’s submission of its
state program approval or revision application, whichever date is
later.
(3) For any UST system that stores fuel solely for the use of
emergency power generators that was installed prior to the state’s
submission of its state program approval or revision application,
within one year of the effective date of this section, as amended, or
prior to the state’s submission of its state program approval or
revision application, whichever date is later.
(c) Requirements for Petroleum Tanks. All petroleum tanks must meet
the following requirements:
(1) All petroleum tanks must be sampled, tested, or checked for
releases at least monthly, except that tanks (that is, tanks and piping
protected from releases due to corrosion and equipped with both spill
and overfill prevention devices) installed prior to the state’s
submission of its State Program Approval or revision application may
temporarily use monthly inventory control (or its equivalent) in
combination with tightness testing (or its equivalent) conducted every
five years for the first 10 years after the tank is installed; and
(2) New or replaced petroleum tanks must use interstitial
monitoring within secondary containment in accordance with Sec.
9003(i)(1) of the Solid Waste Disposal Act except when the state
requires manufacturer and installer financial responsibility and
installer certification in accordance with Sec. 9003(i)(2) of the
Solid Waste Disposal Act.
(d) Requirements for Petroleum Piping. All underground piping
attached to the tank that routinely conveys petroleum must conform to
the following:
(1) If the petroleum is conveyed under greater than atmospheric
pressure:
(i) The piping must be equipped with release detection that detects
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.
(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.
(3) New or replaced petroleum piping must use interstitial
monitoring within secondary containment in accordance with Sec.
9003(i)(1) of the Solid Waste Disposal Act except when the state
requires evidence of financial responsibility and certification in
accordance with Sec. 9003(i)(2) of the Solid Waste Disposal Act.
(e) Requirements for Hazardous Substance UST Systems. All 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. For hazardous
substance UST systems installed prior to the state’s submission of its
state program
[[Page 71794]]
approval or revision application, owners and operators can use another
form of release detection if 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.
Sec. 281.34 Release Reporting, Investigation and Confirmation.
In order to be considered no less stringent than the corresponding
federal requirements for release reporting, investigation, and
confirmation, the state must have requirements that ensure all owners
and operators conform with the following:
(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 or the interstitial space may have been
compromised; and
(2) When required by the implementing agency to determine the
source of a release having an impact in the surrounding area; and
(b) Promptly report all confirmed underground releases and any
spills and overfills that are not contained and cleaned up.
(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.
Sec. 281.35 Release Response and Corrective Action.
In order to be considered no less stringent than the corresponding
federal requirements for release response and corrective action, the
state must have requirements that ensure:
(a) All releases from UST systems are promptly assessed and further
releases are stopped;
(b) Actions are taken to identify, contain and mitigate any
immediate health and safety threats that are posed by a release (such
activities include investigation and initiation of free product
removal, if present);
(c) All releases from UST systems are investigated to determine if
there are impacts on soil 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.
(d) All releases from UST systems are cleaned up through soil and
ground water remediation and any other steps, as necessary to protect
human health and the environment;
(e) Adequate information is made available to the state to
demonstrate that corrective actions are taken in accordance with the
requirements of paragraphs (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
(f) In accordance with Sec. 280.67, the state must notify the
affected 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.
Sec. 281.36 Out-of-Service UST Systems and Closure.
In order to be considered no less stringent than the corresponding
federal requirements for temporarily closed UST systems and permanent
closure, the state must have requirements that ensure UST systems
conform with the following:
(a) Removal from Service. 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 comply 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 the state
approves an extension after the owner and operator conducts a site
assessment.
(b) Permanent Closure of UST Systems. All tanks and piping must be
cleaned and permanently closed in a manner that eliminates the
potential for safety hazards and any 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 response and corrective action
requirements must be complied with.
(c) All UST systems taken out of service before the effective date
of the federal regulations must permanently close in accordance with
paragraph (b) of this section when directed by the implementing agency.
Sec. 281.37 Financial Responsibility for UST Systems Containing
Petroleum.
(a) In order to be considered no less stringent than the federal
requirements for financial responsibility for UST systems containing
petroleum, the state requirements for financial responsibility for
petroleum UST systems must ensure that:
(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 engaged 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 the 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.
(b) 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 in order to be no less stringent than
the federal requirements. The mechanism must: 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 draw 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 circumstances that would impair or suspend
coverage.
(c) States must require owners and operators to maintain records
that demonstrate compliance with the state financial responsibility
requirements, and these records must be made readily available when
requested by the implementing agency.
Sec. 281.38 Lender Liability.
(a) A state program that contains a security interest exemption
will be considered to be no less stringent than, and as broad in scope
as, the federal program provided that the state’s exemption:
(1) Mirrors the security interest exemption provided for in 40 CFR
part 280, subpart I; or
(2) Achieves the same effect as provided by the following key
criteria:
(i) A holder, meaning a person who maintains indicia of ownership
primarily to protect a security interest in
[[Page 71795]]
a petroleum UST or UST system or facility or property on which a
petroleum UST or UST system is located, who does not participate in the
management of the UST or UST system as defined under Sec. 280.10 of
this chapter, and who does not engage in petroleum production,
refining, and marketing as defined under Sec. 280.200(b) of this
chapter is not:
(A) An “owner” of a petroleum UST or UST system or facility or
property on which a petroleum UST or UST system is located for purposes
of compliance with the requirements of 40 CFR part 280; or
(B) An “operator” of a petroleum UST or UST system for purposes
of compliance with the requirements of 40 CFR part 280, provided the
holder is not in control of or does not have responsibility for the
daily operation of the UST or UST system.
(ii) [Reserved]
(b) [Reserved]
Sec. 281.39 Operator Training.
In order to be considered no less stringent than the corresponding
federal requirements for operator training, the state must have an
operator training program that meets the minimum requirements of Sec.
9010 of the Solid Waste Disposal Act.
Subpart D–Adequate Enforcement of Compliance
Sec. 281.41 Requirements for Enforcement Authority.
(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 capable of being assessed up to
$5,000 or more for each day of violation.
(4) To prohibit the delivery, deposit, or acceptance of a regulated
substance into an underground storage tank identified by the state to
be ineligible for such delivery, deposit, or acceptance in accordance
with Sec. 9012 of the Solid Waste Disposal Act.
(b) The burden of proof and degree of knowledge or intent required
under state law for establishing violations under paragraph (a)(3) of
this section, must be no greater than the burden of proof or degree of
knowledge or intent that EPA must provide when it brings an action
under Subtitle I of the Solid Waste Disposal Act.
(c) A civil penalty assessed, sought, or agreed upon by the state
enforcement agency(ies) under paragraph (a)(3) of this section must be
appropriate to the violation.
Sec. 281.42 Requirements for Public Participation.
Any state administering a program must provide for public
participation in the state enforcement process by providing any one of
the following three options:
(a) Authority 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 adequately
represented by the State.
(b) Authority that allows intervention as of right in any civil
action to obtain the remedies specified in 281.41 by any citizen having
an interest that is or may be adversely affected; or
(c) Assurance by the appropriate state agency that:
(1) It will provide notice and opportunity for public comment on
all proposed settlements of civil enforcement actions (except where
immediate action is necessary to adequately protect human health and
the environment);
(2) It will investigate and provide responses to citizen complaints
about violations; and
(3) It will not oppose citizen intervention when permissive
intervention is allowed by statute, rule, or regulation.
Sec. 281.43 Sharing of Information.
(a) States with approved programs must furnish EPA, upon request,
any information in state files obtained or used in the administration
of the state program. This information includes:
(1) Any information submitted to the state under a claim of
confidentiality. The state must submit that claim to EPA when providing
such information. Any information obtained from a state and subject to
a claim of confidentiality will be treated in accordance with federal
regulations in 40 CFR part 2; and
(2) Any information that is submitted to the state without a claim
of confidentiality. EPA may make this information available to the
public without further notice.
(b) EPA must furnish to states with approved programs, upon
request, any information in EPA files that the state needs to
administer its approved state program. Such information includes:
(1) Any information that is submitted to EPA without a claim of
confidentiality; and
(2) Any information submitted to EPA under a claim of
confidentiality, subject to the conditions in 40 CFR part 2.
Subpart E–Approval Procedures
Sec. 281.50 Approval Procedures for State Programs.
(a) The following procedures are required for all applications,
regardless of whether the application is for a partial or complete
program, as defined in Sec. 281.12, or final approval in accordance
with Sec. 281.11.
(b) Before submitting an application to EPA for approval of a state
program, the state must provide an opportunity for public notice and
comment in the development of its underground storage tank program.
(c) When EPA receives a state program application, EPA will examine
the application and notify the state whether its application is
complete, in accordance with the application components required in
Sec. 281.20. The 180-day statutory review period begins only after EPA
has determined that a complete application has been received.
(d) The state and EPA may by mutual agreement extend the review
period.
(e) After receipt of a complete program application, the
Administrator will tentatively determine approval or disapproval of the
state program. EPA shall issue public notice of the tentative
determination in the Federal Register; in enough of the largest
newspapers in the state to attract statewide attention; and to persons
on the state agency mailing list and any other persons who the agency
has reason to believe are interested. Notice of the tentative
determination must also:
(1) Afford the public 30 days after the notice to comment on the
state’s application and the Administrator’s tentative determination;
and
[[Page 71796]]
(2) Include a general statement of the areas of concern, if the
Administrator indicates the state program may not be approved; and
(3) Note the availability for inspection by the public of the state
program application; and
(4) Indicate that a public hearing will be held by EPA no earlier
than 30 days after notice of the tentative determination unless
insufficient public interest is expressed, at which time the Regional
Administrator may cancel the public hearing.
(f) Within 180 days of receipt of a complete state program
application, the Administrator must make a final determination whether
to approve the state program after review of all public comments. EPA
will give notice of its determination in the Federal Register and
codify the approved state program. The notice must include a statement
of the reasons for this determination and a response to significant
comments received.
Sec. 281.51 Revision of Approved State Programs.
(a) Either EPA or the approved state may initiate program revision.
Program revision may be necessary when the controlling federal or state
statutory or regulatory authority is changed or when responsibility for
the state program is shifted to a new agency or agencies. The state
must inform EPA of any proposed modifications to its basic statutory or
regulatory authority or change in division of responsibility among
state agencies. EPA will determine in each case whether a revision of
the approved program is required. Approved state programs must submit a
revised application within three years of any changes to this part that
requires a program revision.
(b) Whenever the Administrator has reason to believe that
circumstances have changed with respect to an approved state program or
the federal program, the Administrator may request, and the state must
provide, a revised application as prescribed by EPA.
(c) The Administrator will approve or disapprove program revisions
based on the requirements of this part and of Subtitle I pursuant to
the procedures under this section, or under Sec. 281.50 if EPA has
reason to believe the proposed revision will receive significant
negative comment from the public.
(1) The Administrator must issue public notice of planned approval
or disapproval of a state program revision in the Federal Register; in
enough of the largest newspapers in the state to attract statewide
attention; and by mailing to persons on the state agency mailing list
and to any other persons who the agency has reason to believe are
interested. The public notice must summarize the state program
revision, indicate whether EPA intends to approve or disapprove the
revision, and provide for an opportunity to comment for a period of 30
days.
(2) The Administrator’s decision on the proposed revision becomes
effective 60 days after the date of publication in the Federal Register
in accordance with paragraph (c)(1) of this section, unless significant
negative comment opposing the proposed revision is received during the
comment period. If significant negative comment is received, EPA must
notify the state and within 60 days after the date of publication,
publish in the Federal Register either:
(i) A withdrawal of the immediate final decision, which will then
be treated as a tentative decision in accordance with the applicable
procedures of Sec. 281.50(e) and (f); or
(ii) A notice that contains a response to significant negative
comments and affirms either that the immediate final decision takes
effect or reverses the decision.
(d) Revised state programs that receive approval must be codified
in the Federal Register.
Subpart F–Withdrawal of Approval of State Programs
Sec. 281.60 Criteria for Withdrawal of Approval of State Programs.
The Administrator may withdraw program approval when the Agency
determines that a state no longer has adequate regulatory or statutory
authority or is not administering and enforcing an approved program in
accordance with this part. The state must have adequate capability to
administer and enforce the state program. In evaluating whether such
capability exists, the Agency will consider whether the state is
implementing an adequate enforcement program by evaluating the quality
of compliance monitoring and enforcement actions.
Sec. 281.61 Procedures for Withdrawal of Approval of State Programs.
(a) The following procedures apply when a state with an approved
program voluntarily transfers to EPA those program responsibilities
required by federal law.
(1) The state must give EPA notice of the proposed transfer, and
submit, at least 90 days before the transfer, a plan for the orderly
transfer of all relevant program information necessary for EPA to
administer the program.
(2) Within 30 days of receiving the state’s transfer plan, EPA must
evaluate the plan and identify any additional information needed by the
federal government for program administration.
(3) At least 30 days before the transfer is to occur, EPA must
publish notice of the transfer in the Federal Register; in enough of
the largest newspapers in the state to attract statewide attention; and
to persons on appropriate state mailing lists.
(b) The following procedures apply when the Administrator considers
withdrawing approval.
(1) When EPA begins proceedings to determine whether to withdraw
approval of a state program (either on its own initiative or in
response to a petition from an interested person), withdrawal
proceedings will be conducted in accordance with procedures set out in
40 CFR 271.23(b) and (c), except for Sec. 271.23(b)(8)(iii) to the
extent that it deviates from requirements under Sec. 281.60.
(2) If the state fails to take appropriate action within a
reasonable time, not to exceed 120 days after notice from the
Administrator that the state is not administering and enforcing its
program in accordance with the requirements of this part, EPA will
withdraw approval of the state’s program.
[FR Doc. 2011-29293 Filed 11-17-11; 8:45 am]
BILLING CODE 6560-50-P
