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New Life for Underground Storage Tank Regulation

By Charles M. Denton, Tammy L. Helminski, Amy E. Smith, Michael T. Scanlon, and Kenneth W. Vermeulen – November 11, 2015


On July 15, 2015, the U.S. Environmental Protection Agency (EPA) published a final rule significantly revising the federal regulations pertaining to underground storage tanks (USTs), which became effective October 13, 2015. Some of the changes were made to align with the requirements for USTs made pursuant to the 2005 Energy Policy Act. These updated UST regulations include specific requirements for proper operation and maintenance of UST systems, including spill and overfill prevention equipment and release detection equipment. Overall, the new rule imposes significant new requirements on UST owners and operators, as summarized below.


Operator Training
The rule includes a new subpart J, which expands the operator training requirements in the Energy Policy Act that currently apply to states obtaining federal UST funding to apply nationwide, including in Indian country. These operator training requirements do not take effect for three years (i.e., October 13, 2018).


The rule identifies three classes of operators: Class A (the person with primary responsibility to operate and maintain the UST system); Class B (the person with day-to-day responsibility to implement applicable requirements); and Class C (the person responsible to initially respond to spills and releases). The EPA rule also identifies training requirements for each class as well as documentation requirements. In addition, if the government determines the UST system is not in compliance with the requirements, the Class A and B operator must complete a retraining program or comparable examination developed or administered by an independent organization, the implementing agency, or a recognized authority, unless an annual refresher training program is already in place.


Secondary Containment and Interstitial Monitoring
The EPA rule expands the secondary containment requirements in the Energy Policy Act and requires that owners and operators install secondary containment and interstitial monitoring for all new and replacement USTs, including petroleum USTs, and new and replacement piping (except safe suction piping), as well as under-dispenser containment for new dispenser systems. However, unlike the Energy Policy Act, this requirement applies regardless of the UST system’s proximity to a community water system or drinking water well.


These requirements apply to UST systems installed after April 11, 2016. For piping, secondary containment and interstitial monitoring must be provided for the entire piping run when 50 percent or more of the piping is replaced.


Inspections and Testing
The new EPA regulations include many expanded and additional requirements for inspection and testing to ensure proper operation and maintenance of UST systems, including requirements for periodic walk-through inspections, spill prevention equipment testing, overfill prevention equipment inspections, containment sump testing, and release detection equipment testing. In addition, if testing indicates that a problem exists, the rule imposes requirements for repairs and follow-up testing. Keeping records to document these inspections will be very important.


Walk-through inspections must be conducted every 30 days and include (1) visual checks of the spill prevention equipment for damage and to remove liquid or debris, (2) checking for and removing obstructions in fill pipes, (3) checking for leaks in the interstitial area for double-walled spill prevention equipment with interstitial monitoring, (4) checking release detection equipment to ensure there are no alarms or unusual operating conditions, and (5) reviewing release detection testing records to ensure they are current. When filling activities occur less often than every 30 days, the inspection of spill prevention equipment can be performed prior to each delivery. Records of walk-through inspections must be maintained for one year.


Commencing no later than October 13, 2018, certain inspections must be conducted annually: (1) checking containment sumps for damage and leaks to the containment area or releases to the environment, (2) removal of liquid and debris with containment, (3) checking for leaks in the interstitial area for double-walled containment sumps with interstitial monitoring, and (4) checking handheld release detection equipment (e.g., groundwater bailers and tank gauge sticks) for operability and serviceability. Though the rule does not require periodic testing of secondary containment for tanks and piping, it does require testing following a repair or in response to a suspected release.


The EPA rule also requires spill prevention equipment to be tested (using vacuum, pressure, or liquid methods) every three years unless the equipment is double-walled spill prevention equipment and both walls are periodically monitored for integrity. Integrity monitoring must be performed at least once every 30 days. The first test of existing equipment must be performed no later than October 13, 2018. Spill prevention equipment for new systems brought into use after the effective date of the new regulation (October 13, 2015) must be tested at the time of installation. Testing records must be maintained for three years for each spill prevention device. Records of periodic integrity monitoring of double-walled spill prevention equipment must be maintained for as long as the integrity monitoring is performed. If periodic monitoring is stopped, testing must be performed within 30 days.


For overfill equipment, the EPA rule requires the equipment to be inspected to determine whether it is operating properly and will activate at the correct level as specified in the regulations. Inspections must be performed once every three years. For existing UST systems, the first inspection must be performed no later than October 13, 2018. For new systems brought into use after October 13, 2015, the inspection must be performed at the time of installation. Inspection records must be maintained for three years.


The rule also includes a three-year testing requirement (using vacuum, pressure, or liquid methods) for containment sumps used for interstitial monitoring of piping unless the containment sumps are double-walled and the integrity of the walls is periodically monitored. Integrity monitoring must be performed at least once every 30 days. For existing equipment, the first test must be performed no later than October 13, 2018. For new systems brought into use after October 13, 2015, testing must be performed at the time of installation. Testing records must be maintained for three years. Records of periodic integrity monitoring of double-walled containment sumps must be maintained for as long as the integrity monitoring is performed. If periodic monitoring is stopped, testing must be performed within 30 days.


The new EPA rule also requires annual operation and maintenance tests on electronic and mechanical components of release detection equipment to ensure they are operating properly. This includes automatic tank gauge systems and other controllers, probes and sensors, automatic line leak detectors, vacuum pumps and pressure gauges, and handheld electronic sampling equipment associated with vapor and groundwater monitoring. Test records must be maintained for three years. These annual operation and maintenance test requirements must be implemented no later than October 13, 2018.


Monitoring
The EPA continues to allow vapor and groundwater monitoring as release detection options, so long as owners and operators demonstrate proper installation and performance through a site assessment and a record of the site assessment is retained. For site assessments developed after October 13, 2015, the regulations specify the licensing and experience requirements that must be met by the person signing the assessment. By no later than October 13, 2018, site assessment records must be maintained for as long as the monitoring method is used.


The rule also revises the release reporting requirements by including liquids in interstitial spaces as an example of an unusual operating condition, clarifying that an alarm during release detection monitoring is subject to reporting, and describing exceptions to the reporting requirement. The rule also adds a requirement to the release investigation and confirmation steps requirement to conduct secondary containment testing, perform a site check, or perform some other procedure approved by the implementing agency when a suspected release is identified, and the rule clarifies the actions that must be taken if a test confirms a leak into the interstitial space or indicates a release to the environment.


Repairs
The EPA rule adds piping, spill prevention equipment, overfill prevention equipment, corrosion protection equipment, and release detection equipment to the definition of “repair.” It also removes the link that a repair only is associated with a release and adds a requirement to perform testing or inspections, as specified in the regulations, within 30 days after a repair to spill or overfill equipment and secondary containment areas.


Coverage of Previously Deferred Systems
Subpart K of the new EPA rule ends the prior deferred regulation of, and provides new requirements for, UST systems storing fuel for use by emergency power generators, field-constructed tanks (FCTs), and airport hydrant systems (AHSs). For UST systems that were installed on or before October 13, 2015, and that supply fuel solely for use by emergency power generators, the EPA now is requiring that owners and operators meet the release detection requirements in subpart D by October 13, 2018. For UST systems that are installed after October 13, 2015, and that supply fuel solely for use by emergency power generators, the system must comply with all applicable UST requirements at the time of installation.


For FCTs and AHSs, the rule removes the deferral and requires the UST systems to comply with the new subpart K requirements as well as the requirements in subparts A through H and J except as provided in 40 C.F.R. § 280.252. The EPA rule also adds hydrant pits and hydrant piping vaults to the periodic walk-through inspection requirement. For systems installed on or before October 13, 2015, the upgrading, general operating, operator training, and release detection requirements are effective October 13, 2018; and the requirements related to release reporting, release response, release investigation, closure, financial responsibility, and notification (with one exception) become effective on October 13, 2015. The exception is that all owners of previously deferred UST systems must submit a one-time notice of the tank system’s existence to the implementing agency by October 13, 2018, and must be able to demonstrate financial responsibility at the time the notification form is submitted. For systems installed after October 13, 2015, these requirements apply at the time of installation.


The deferral for wastewater treatment tank systems that are not part of a wastewater treatment facility regulated under sections 402 or 307(b) of the Clean Water Act was replaced by a partial exclusion. Those wastewater treatment tank systems—as well as aboveground storage tanks associated with FCTs and AHSs regulated under subpart K, UST systems containing radioactive material regulated by the Atomic Energy Act, and UST systems that are part of an emergency generator system at nuclear power generation facilities licensed and regulated by the Nuclear Regulatory Commission—are excluded from 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), J (Operator Training), and K (UST Systems with Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems).


According to 40 C.F.R. § 280.10(c), these partially excluded tank systems are nevertheless subject to the requirements in subparts A (Program Scope and Installation Requirements for Partially Excluded UST Systems), F (Release Response and Corrective Action for UST Systems Containing Petroleum or Hazardous Substances), H (Financial Responsibility), and I (Lender Liability), as applicable. However, the preamble to the final rule states that wastewater treatment tanks subject to the partial exclusion are not subject to the financial responsibility and lender liability provisions in subparts H and I; therefore, there is a conflict between the language in the actual rule and the language in the preamble to the rule on this issue. In addition, the preamble does not indicate whether the purported exclusion from subparts H and I also would apply to other partially excluded UST systems. If this conflict is not corrected by the EPA, guidance from the regulating agency should be sought by the UST owner or operator.  


Changes in Technology
The new EPA regulations reflect changes in UST system technology that have occurred since 1988. The rule eliminates flow restrictors in vent lines as an option for owners and operators to meet the overfill prevention equipment requirements for newly installed UST systems and when overflow prevention equipment is replaced. Vent line flow restrictors in use before October 13, 2015, can continue to be used so long as they operate properly by restricting flow into the UST when activated. In addition, these restrictors must be periodically inspected as previously discussed for overfill equipment.


The rule incorporates several newer technologies into the regulations including steel tanks that are clad and jacketed with non-corrodible materials, non-corrodible piping, continuous in-tank leak detection, and statistical inventory reconciliation. The rule also updates the codes of practice listed in 40 C.F.R. part 280.


The rule revises the internal lining requirement such that owners and operators must permanently close tanks using internal lining as the sole method of corrosion protection if the internal lining fails the periodic inspection and cannot be repaired according to an applicable code of practice.


Notification
In addition to the notification requirements discussed above for FCTs and AHSs, the rule also requires owners of regulated UST systems to notify the implementing agency of a change in ownership within 30 days of assuming ownership of the system.


Compatibility of Stored Substances
Because of the change in the definition of “regulated substance,” the EPA rule requires that owners and operators demonstrate compatibility or use another option determined by the implementing agency to be no less protective than the compatibility demonstration for UST systems storing a regulated substance containing greater than 10 percent ethanol, greater than 20 percent biodiesel, or any other regulated substance identified by the implementing agency. In addition, at least 30 days before switching to one of these substances, owners and operators must notify the implementing agency that they will be making the switch.


State Approval
The EPA rule also updates the state program approval requirements in 40 C.F.R. part 281 to address the changes to 40 C.F.R. part 280 and implement the delivery prohibition, operator training, and additional measures to protect groundwater requirements contained in the Energy Policy Act.


States with an approved UST program have three years to submit a revised state program approval package to the EPA for approval, and owners and operators in these states must continue to follow their state’s requirements until the state changes its requirements or until the state’s approval status changes. Owners and operators in states without approved state programs must meet the federal standards according to the schedule in the 2015 UST regulations, as well as any of their state-specific requirements.


Changes to the Definitions
The EPA added definitions in 40 C.F.R. § 280.12 for certain terms including “dispenser,” “dispenser system,” “replaced,” “secondary containment,” and “under-dispenser containment,” and revised the definition for “regulated substance” to include petroleum derived from non-crude-oil products. The EPA also added definitions in subpart K for AHSs and FCTs.


Conclusion—Stay Tuned!
The EPA changes to UST requirements must be carefully reviewed by all owners and operators of UST systems, especially with impending deadlines. The EPA’s new regulations expand the 1988 UST mandates and impose significant new obligations on UST owners and operators. The requirements for inspection, maintenance, and monitoring outlined above have varying implementation deadlines, frequency demands, notification requirements, and record-keeping obligations. Each owner and operator needs to carefully review the new requirements, their potential applicability to each UST system owned or operated, and how state regulations compare, and develop a plan for implementation. For example, owners and operators need to carefully analyze whether the oil/water separators they use are subject to these rules or part of a wastewater treatment process, which is exempt from these requirements.


Keywords: environmental litigation, underground storage tanks, USTs, revised regulations, final rule


Charles M. Denton, Tammy L. Helminski, Amy E. Smith, Michael T. Scanlon, and Kenneth W. Vermeulen are lawyers in the Environmental Law Department of Barnes & Thornburg LLP.


 
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