November 28, 2011
Practice Group:
Public Policy and
Law
Tightening the Regulatory Grip on Gas
Stations, Hospitals, Universities, and
Others: EPA’s Proposed Underground
Storage Tank Regulation
By Cliff L. Rothenstein, Michael W. Evans, Cindy L. O’Malley, Thomas R. DeCesar
On October 25, 2011, the Environmental Protection Agency (“EPA”) proposed new federal
underground storage tank (“UST”) regulations that will impose new obligations and burdens on gas
stations and other businesses. The proposal establishes new mandates for:
·
Operator training;
·
Secondary and under-dispenser containment;
·
Interstitial monitoring;
·
Ethanol and biodiesel compatibility
·
Monthly walkthrough inspections; and
·
More frequent testing
In addition, the proposed regulation removes some longstanding UST regulatory deferrals, including
those for hospitals and universities with emergency power generator tanks.
Comments on the proposed rule may be submitted to EPA by February 16, 2012. More information
including the text of the proposed rule can be found at:
http://www.epa.gov/oust/fedlaws/proposedregs.html.
Implications
Although EPA’s UST regulations have been in place and functioned effectively for more than two
decades, the agency has determined the need for more extensive controls at this time. This means that
the cost of operating a business with USTs, (e.g., gas stations, convenience stores, truck stops,
hospitals, universities, and car rental or delivery companies with a large vehicle fleets) will likely
increase due to the additional mandates in the proposed rule. In particular, the monthly walkthrough
inspection and recordkeeping requirements, leak detection testing, and fuel compatibility
determinations may be quite burdensome.
The secondary containment and under-dispenser containment requirements, although already required
for many UST facilities, will affect previously excepted UST systems that are far from community
water systems. Although EPA estimates that this will not be a significant change because most UST
systems are close to community water systems, the actual number of UST systems more than 1,000
feet from community water systems is presently unknown.
Tightening the Regulatory Grip on Gas Stations, Hospitals,
Universities, and Others: EPA’s Proposed Underground
Storage Tank Regulation
Lastly, the compatibility determination in the proposed rule may create a particular burden for UST
systems attempting to store higher percentage ethanol and biodiesel mixtures. With the possibility
that E15 will be approved for use in a larger number of vehicles, especially newer models, gas stations
may want to switch some of their storage tanks to include mixtures with a higher percentage of
ethanol. However, as EPA admits in its proposed rule, there may not be any recognized methods of
determining whether higher ethanol grades are compatible with UST systems. Whether manufacturers
will be able to provide the necessary approval of compatibility remains to be seen.
Background
EPA defines an UST as a storage tank, group of tanks, and piping connected to the tank(s), where at
least 10% are underground. EPA’s current UST standards, promulgated in 1988 in accordance with
Subtitle I of the Solid Waste Disposal Act (“SWDA”), only apply to USTs storing petroleum mixtures
or hazardous substances, as defined under the Comprehensive Environmental Response,
Compensation and Liability Act. From 1988 to 1998, EPA phased in the UST regulations and
required UST operators to implement spill prevention equipment and release detection monitoring.
EPA generally works with a state or local agency as the implementing agency.
In 2005, Congress passed the Energy Policy Act, which amended Subtitle I of the SWDA. In part, the
Energy Policy Act updated the requirements with which states must comply in order to receive
funding from EPA. The updated requirements include increased operator training and secondary and
under-dispenser containment for certain USTs.
EPA’s proposed rule expands these Energy Policy Act requirements to all regulated USTs in states
and Indian country. Additionally, the proposal amends certain provisions in the original 1988
regulation to require more extensive testing and maintenance of UST systems and ethanol and
biodiesel fuel compatibility determinations. Lastly, the proposal regulates emergency generator tanks
and other USTs that have never been subject to federal UST regulations.
New Mandates
EPA’s proposed regulation makes changes in four areas:
·
Operator training and secondary containment;
·
Inspection walkthrough and testing requirements;
·
Ethanol/biodiesel compatibility; and
·
Deferrals
Operator Training and Secondary Containment – In an effort to make changes required by the Energy
Policy Act of 2005 universal, EPA’s proposed rule mandates operator training, secondary and underdispenser containment, and interstitial monitoring for all USTs.
The proposed training requirement divides the operators into three groups – upper management, direct
management, and first responders – and requires separate training and examinations for each. These
requirements, which will be phased in over three years, also call for additional training after a
violation occurs.
EPA’s proposed rule also necessitates the installation of secondary containment with interstitial
monitoring for new or replaced tanks and piping. Essentially, secondary containment is a two layer
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Tightening the Regulatory Grip on Gas Stations, Hospitals,
Universities, and Others: EPA’s Proposed Underground
Storage Tank Regulation
system wherein the space between the inner and outer layer (the interstitial space) is monitored for
releases. The proposal also requires under-dispenser containment beneath new dispenser systems that
must be liquid-tight, allow for visual inspection, and continuously monitor for leaks. Importantly,
these regulations apply to all USTs, regardless of their distance from a water system. This change
goes beyond the requirements in the Energy Policy Act and Section 9003 of the SWDA, which
contained an exception for secondary containment for UST systems located more than 1,000 feet from
a community water system.
Monthly Walkthrough Inspections and Testing – EPA’s proposed regulations establish new monthly
walkthrough inspections, testing and record-keeping requirements for spill and overfill prevention
equipment, secondary containment, and release detection equipment.
These changes could have a noticeable impact on businesses with USTs because most states do not
presently require monthly walkthrough inspections or require UST operators to follow the specific
procedures as set forth in the proposed rule. The monthly walkthrough inspection mandate in
particular may be burdensome on UST operators due to frequency and reporting requirements. As a
result, EPA has specifically requested comments on these areas.
EPA’s proposed regulations also mandate the use of newer technologies. More specifically, the
proposal will require UST owners to incorporate new technology for tanks, piping, release detection,
overfill prevention, and methods for continuous interstitial monitoring. Although most of these
updated technology requirements must be incorporated only for new or replaced UST systems, as
noted in the table below, the proposed rule requires the removal of some technologies immediately or
within the next few years.
New Requirement
Frequency
Implementation
Recordkeeping
Walkthrough
Monthly
Within first month, not
phased in
Keep for one year
Spill Prevention
Equipment Testing
Annually
New – at installation
Existing - not phased in,
test within first year
Keep for three years
Exception – No testing for systems where spill prevention equipment has
secondary containment and continuous interstitial testing
Overfill Prevention
Equipment Testing
Every three
years
New – at installation
Existing – phased in over
three years based on age of
equipment
Keep for three years
Secondary
Containment
Testing
Every three
years
New – at installation
Existing – phased in over
three years based on age of
equipment
Keep for three years
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Tightening the Regulatory Grip on Gas Stations, Hospitals,
Universities, and Others: EPA’s Proposed Underground
Storage Tank Regulation
Exceptions – No testing required for USTs using continuous interstitial
monitoring, piping using vacuum monitoring, pressure monitoring, or
liquid-filled interstitial space monitoring, and containment sumps with
secondary containment and continuous interstitial monitoring
Testing on Release
Detection
Equipment
Annually
New – at installation
Existing – not phased in,
first test within first year
Keep for three years
Ethanol/Biodiesel Compatibility – EPA currently requires UST systems to be made of or lined with
materials that are compatible with any substance stored in the system. They also generally defer to
states on compatibility decisions when implementing the program. EPA’s proposed regulations seek
to change current practices by limiting the ways an UST operator can demonstrate compatibility for
ethanol and biodiesel fuels. Specifically, an UST operator storing a fuel mixture with greater than
10% ethanol or 20% biodiesel must demonstrate that their UST system is compatible with the
substance in one of three ways:
·
Using nationally recognized testing;
·
Testing from the equipment manufacturer; or
·
Using a method approved by an implementing agency
EPA’s proposed regulation extends these compatibility requirements to other mixtures, such as
biobutanol, which have not yet fully entered the fuel market.
In many cases demonstrating compliance will be difficult and costly and, in some cases, could require
removing the tank from operation. For example, many facilities have changed ownership and no
longer have access to information on the tank manufacturer or year the tank was installed, both of
which are needed to demonstrate compatibility. In other cases, UST facilities may have individual
components (i.e., tanks, piping, and ancillary equipment) from different manufacturers and would
need records for each component and determinations from each individual manufacturer. Without
this information the owner could not easily demonstrate compatibility and the tank system could not
be used to store ethanol and biodiesel fuels.
With regard to the ethanol/biodiesel compatibility requirements, EPA has requested comments on the
following issues:
·
Allowing engineers to make compatibility determinations;
·
Different methods for demonstrating compatibility;
·
“Tier-ing” types of approval (so that if an upper tier approval is available, it must be used); and
·
Waiver of compatibility requirements for some systems
Regulatory Deferrals – EPA’s proposed rule will regulate several types of UST systems which have
been deferred from UST regulations since 1988. The newly regulated systems being proposed
include:
·
Emergency power generator USTs;
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Tightening the Regulatory Grip on Gas Stations, Hospitals,
Universities, and Others: EPA’s Proposed Underground
Storage Tank Regulation
·
Airport hydrant fuel distribution systems;
·
Field constructed USTs; and
·
Wastewater treatment UST systems
Under the proposed regulations, these systems must notify EPA of their existence within 30 days and
meet other requirements as noted in the table below. EPA will continue to defer to the Nuclear
Regulatory Commission regarding USTs associated with nuclear facilities.
With respect to emergency generator tanks, removing the longstanding regulatory deferral will likely
present a burden to universities, hospitals and other operations that use USTs for emergency generator
backup power. By removing the deferral these tanks will be subject to federal UST testing, training,
leak detection and recordkeeping requirements for the first time.
Previously
Deferred UST
System
Applicable Regulations and
Timing
Where UST systems are found
Emergency
Power
Generator UST
Systems
Must meet all regulations within
one year
Can be found in hospitals, universities,
communication utilities and other
locations relying on back-up power.
Many are in remote locations.
Airport
Hydrant Fuel
Distribution
Systems
40 CFR § 280.22 subparts
(B)-(E), (G) & (H) apply.
Implementation date varies
from immediate to within
seven years depending on the
code section.
Some large commercial airports, but
typically owned by the federal
government
Exceptions – The proposed rules provides specific, less stringent requirements
for release detection in tanks and piping and release prevention. Secondary
containment requirements will not apply to piping, but will apply to new and
replaced tanks. Aboveground parts of airport hydrant systems will still be
regulated under SPCC regulations.
FieldConstructed
USTs
40 CFR § 280.22 subparts
(B)-(E), (G) & (H) apply.
Implementation date varies
from immediate to within
seven years depending on the
subpart.
EPA estimates that there are only 239
field-constructed USTs. They are
generally very large. Most are owned
by the federal government or a state
government.
Exceptions – The proposed rule creates specific, less stringent release detection
and release prevention standards for field constructed USTs. Release detection
standards vary based on the size of the tanks. Secondary containment will not
be required for piping, but will be required for new and replaced tanks.
Above-ground tanks associated with field-constructed tanks systems will
continue to be deferred.
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Tightening the Regulatory Grip on Gas Stations, Hospitals,
Universities, and Others: EPA’s Proposed Underground
Storage Tank Regulation
Wastewater
Treatment
Tanks Systems
All requirements met within
three years.
Proposed regulations will only apply to
wastewater treatment tank systems not part
of a wastewater treatment facility
regulated under §§ 402 or 307(b) of the
Clean Water Act. EPA does not believe
any such USTs exist.
Conclusion
This is the first major change to the UST regulations since they were originally issued in 1988. If
adopted, EPA’s proposed rule will likely affect gas stations, convenience stores, truck stops, fleet
operators, establishments with emergency generator tanks such as hospitals and universities and large
commercial airports with underground hydrant fueling systems. In addition, the new ethanol and
biodiesel compatibility mandate will likely present significant disruptions to many UST owners
including in some situations tank system replacement.
Authors:
Cliff L. Rothenstein
cliff.rothenstein@klgates.com
+1.202.778.9381
Michael W. Evans
michael.evans@klgates.com
+1.202.661.3807
Cindy L. O'Malley
cindy.omalley@klgates.com
+1.202.661.6228
Thomas R. DeCesar
Tom.DeCesar@klgates.com
+1.717.231.4563
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