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CHAPTER 4 STATE PROGRAM APPROVAL HANDBOOK OSWER Directive 9650.11 May 11, 1992

CHAPTER 4. ATTORNEY GENERAL'S STATEMENT: DEMONSTRATION OF "NO LESS STRINGENT" OBJECTIVES AND "ADEQUATE ENFORCEMENT" AUTHORITIES

Contents


OSWER DIRECTIVE 9650.11

CHAPTER 4. ATTORNEY GENERAL’S STATEMENT: DEMONSTRATION OF "NO LESS STRINGENT" OBJECTIVES AND "ADEQUATE ENFORCEMENT" AUTHORITIES

OSWER DIRECTIVE 9650.11

A. Introduction

Under Subtitle I, a State must demonstrate that its requirements and standards for existing and new USTs are "no less stringent" than the Federal requirements and standards in 40 CFR Part 281 and provide for adequate enforcement. The State's demonstration that its authorities are "no less stringent" and allow for adequate enforcement will be provided with the Attorney General's Statement. This chapter describes and explains the criteria States must meet in order to be "no less stringent" in the technical program areas and how the State Attorney General will certify their legal authority. Chapter 5 provides an explanation of the adequate enforcement procedures.

OSWER DIRECTIVE 9650.11

B. Objectives of the Federal Technical Requirements

Since an introduction to the purpose and requirements for the Attorney General's Statement is provided in the preamble to the State Program Approval Rule, it is not repeated here. If you are not familiar with this material, we recommend that you read it now before proceeding. It is important for all staff working on State Program Approval to read the preamble to the regulations at 40 CFR Part 281 in order to fully understand the relevant issues, especially the Agency's intent to move away from RCRA Subtitle C–type reviews to a "no less stringent" review based on performance objectives, which is one of the most distinguishing characteristics of the national UST program. (See Appendix B, page B–2, "Final State Program Approval Rule" and page B–3, "Preamble to Financial Responsibility Objective")

Reviewers are reminded, however, that the "element–by–element" approach using performance objectives applies only to the review of technical and financial responsibility regulations, and not to such things as the definitions that establish the scope of a State's program. Some parts of a State's program are reviewed to ensure that the same universe of UST systems is being addressed and that the minimum enforcement authorities mandated by 40 CFR Part 281, Subpart D are established. Thus, there are some portions of a State Program Approval application where the element–by–element approach is not appropriate.

This section is organized by objective. For each objective, there is a table with spaces to cite relevant State statutes and regulations, notes on fulfilling the objective, and some examples of State requirements that do or do not meet the objective. The table is organized so that citations can be written in where the State has a requirement that corresponds to each subsection of the objective. The State should cite all relevant statutes and regulations, if more than one is applicable. The tables are intended to be used by both the State and the EPA Regional Office, but only the Regional EPA Office can make the judgment of whether the State's requirement is no less stringent than the Federal objective. The State is strongly encouraged to provide additional explanation on the back of the tables or on extra pages to describe how their regulations meet the objective in cases when the State's regulations are organized differently from the Federal approach. The State should also consider attaching relevant policies and procedures that may influence the interpretation of statutes or regulations. The notes on fulfilling the objective provide some key data for interpreting the objective and the last note for each objective references the page in the September 23, 1988 Federal Register where further information may be found. Finally, Appendix C includes a section called Tools for Implementing State Regulations, which describes certain approaches that several States have used to implement their laws and that other States might wish to consider in developing or improving their own programs.

It is important to note that the review process is facilitated when States cite specific references to State laws. This includes reference to specific chapters, subparts, or sections of statutes and regulations and, where appropriate, to "pocket part" updates to bound copies of State statutes and regulations. States also should include, as part of the Attorney General's Statement, written explanations of how the cited State laws meet each objective. These explanations should be as specific as possible, and should also provide a discussion of where the State program is "broader in scope" or "more stringent" than the Federal program.

Some State and Regional UST staff have indicated that they would like to see a checklist for each objective, outlining what is and is not acceptable; however, this would run contrary to the philosophy of the UST program. If EPA were to mandate what may or may not be incorporated into a State's program, the flexibility intended to be built into the process would be lost, and State programs would begin to look like clones of one another. Such a checklist would further encourage the perception that State Program Approval applications should be reviewed line–by–line against a set of pre–determined criteria, which is one of the barriers to State Program Approval that OUST has been working to overcome. Delineating what is and is not acceptable for each objective would remove the ability of States to tailor their programs to meet the objectives in the manner that best suits their needs and abilities.

Please note that great effort was expended to make these examples as "true to life" as possible. Readers are asked to remember that these examples are simply a means by which EPA can more clearly demonstrate how the States should examine their technical requirements in terms of the Federal objectives. Thus, States should not take the evaluations provided in the examples as the last word on State program approval for that given program element. Please remember that these examples also serve as samples of the type of thinking and documentation that should be included in the explanation sections that follow the regulatory citations in the Attorney General's Statement. EPA is concerned that some readers will infer from these examples that if their State regulations are not identical to the example given that their State program is not approvable. Such an inference would be mistaken. By providing these examples, EPA is suggesting simply one interpretation out of many possibilities. Regional EPA Offices will be making the actual decisions as to what is "no less stringent" when reviewing the State program application. If a State has specific questions on whether their regulations meet the objectives, they should ask the Regional EPA Office for assistance and advice. The regulatory citations provided by the State should be as precise as possible, in order to facilitate Regional review and the "no less stringent" determination.

As an alternative to developing new, or revising existing, State UST regulations, States may choose to adopt or incorporate by reference the Federal Technical Standards. Obviously those States that do so can be considered no less stringent. The Federal Technical Standards are written with the intention that some States will choose to adopt them. Therefore, some language was added to several sections to allow the State some flexibility to substitute their own procedural and administrative requirements for those set forth in the Federal requirements. A discussion of this additional decision–making authority for State agencies can be found in the preamble to the Federal Technical Standards (53 FR 37186). It is EPA's intent to allow States a significant amount of discretion in this matter, as long as States can demonstrate that overall program performance in each element will not be adversely affected by their use of differing administrative practices and procedures. An example of the flexible language is §280.50 under Release Reporting, Investigation, and Confirmation: "Owners and operators of UST systems must report to the implementing agency within 24 hours, or another reasonable time period specified by the implementing agency..." The State should be aware that when adopting or copying this language, if the State does not specify another time period in the requirement, then the Federally–specified time period (the 24–hour time period in the example) is automatically in effect. An alternative time period must be specified in the State requirement in place of the Federally–specified time period in order for the State to exercise the decision–making flexibility allowed in the Federal Rule.

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OSWER DIRECTIVE 9650.11

New UST Systems and Notification

Objective §281.30

The State must have requirements that ensure that all new UST systems conform with the following: Cite
Regulation   Statute
(a) Be designed, constructed, and installed in a manner that will prevent releases for their operating life due to manufacturing defects, structural failure, or corrosion. [Note: Codes of practice developed by nationally–recognized organizations 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.    
(c) All UST system owners and operators must notify the implementing State agency of the existence of any new UST system using a form designated by the State agency.    

Notes on Fulfilling the Objective

  1. 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 the area of design, construction, installation, and corrosion protection.
  2. Currently available equipment to provide spill and tank overfill protection includes small catchment basins for spills, alarms, automatic flow restrictors, or shut off devices for overfill prevention.
  3. Under RCRA 9002, notification was required for existing UST systems nationwide. State programs that only require owners and operators of new UST systems to notify the State agency may be approved because notification by owners of existing UST's was already required after Subtitle I was enacted.
  4. The Federal notification form has been revised to require updated notifications from owners and operators of new UST's; however, States may use their discretion as to whether or not they collect this information.
  5. More discussion on new UST systems may be found in the preamble to the final State Program Approval Rule (53 FR 37224) and in the preamble to the final Federal Technical Standards Rule (53 FR 37125).

* * *

State Examples for New UST System Design, Construction, Installation, and Notification

Standards for Design and Installation. The following requirements of State A demonstrate one way to fulfill the design criteria of subsection (a) of this objective. In general, State A requires the use of national standards for the design, construction, and installation of all UST systems. For example, the State requires that tanks be built according to the following recognized engineering standards: UL 58 and API 650 for steel tanks, and UL 1316–83 and ASTM D4021–81 for fiberglass tanks. Steel tanks must be coated with a non–corrosive, impermeable material other than asphalt paint and be equipped with sacrificial anode or impressed current cathodic protection. Cathodic protection must be designed and installed using one or a combination of these 4 standards: API 1632, UL of Canada SG03.1M, STI–P3, or NACE RP–02–85. Both sacrificial anode and impressed current systems must be designed with test stations so that routine operation checks can be performed. Because EPA believes that the design, construction, and installation of a new UST system according to any code of practice of a nationally–recognized organization or testing laboratory will prevent releases during the operating life of an UST, these State requirements fulfill the proper tank design criteria of subsection (a) of this objective. State A could have met the criteria in subsection (a) by adopting just one of these codes of practice. Some aspects of the State's standards, while showing excellent forethought, are not necessary to meet the objective, such as the requirement that anode and current systems must be designed so routine checks can be performed.

This State's requirements also demonstrate one way to fulfill the proper tank installation criteria of subsection (a). The State mandates that installers follow practices outlined in PEI RP 100–86, API 1615, and the manufacturer's instructions that come with the tank. All fittings must be wrapped or coated using a manufacturer–approved method. The State also requires that defects in the tank's coating that occur during shipping must be repaired according to the manufacturer's instructions. The State lists the specifications for backfilling the UST system, which are derived from NFPA 30; additional requirements are specified by the State for anchoring UST's that are in areas with high water tables. Again not all of these requirements may be necessary to achieve subsection (a) of this objective.

Because piping is part of the UST system, the State's requirements for the design, construction, and installation of piping must also meet subsection (a) of this objective. State A demonstrates one way of meeting the objective, again by specifying the codes to be used for designing and installing new underground piping. All new underground pipes in this State must be made of fiberglass reinforced plastic or cathodically protected, coated, iron or steel and must be designed using one of the recognized standards such as NACE RP–02–85, UL, and API 1632. The use of galvanized piping for product lines is prohibited. State regulations specify how the piping must be installed in terms of backfill thickness, product line slope, and the strength of unions and fittings (250 pounds or 300 pounds with metal seats). On UST systems using sacrificial anodes where electrical isolation is essential for adequate corrosion protection, the State requires all underground piping to be isolated from the tanks and dispensing units by means of non–conductive bushings and fittings, which are to be designed and installed in accordance with NACE RP–0285, API 1632, or STI–P3. As part of the installation, all product piping must be tested for tightness. These State requirements for the design and installation of piping in combination with corresponding State requirements for tanks demonstrate one way that a State could fulfill subsection (a) of this objective.

Spill and Overfill Protection. State B allows two options for spill and overfill protection. The first option consists of an in–tank product level sensor that is equipped with an audible or visual alarm and is triggered when the tank is 95 percent full, and a spill catchment basin of at least 15 gallon capacity. The second option consists of a device designed to restrict the flow of the regulated substance into the tank when the tank is 95 percent full, and a spill catchment basin of at least 5 gallon capacity. The State's explanation for the difference in the capacity of the spill catchment basin is that the sensor only triggers an alarm in the first option as opposed to a flow restrictor in the second option. [EPA notes that the flow restrictor, unless it is an automatic shut–off device, does not actually shut off inflow completely, which means that both options require the operator to quickly shut off the hose used to fill the tank.] Although EPA believes the distinction the State makes between alarms and restrictors is somewhat artificial (because both approaches similarly rely on rapid action by the person filling the tank to avoid overfilling when the filling operation approaches the tank's capacity), the above State B requirements demonstrate one way to fulfill subsection (b) of this objective.

Although the Federal Technical Standards require that flow restrictors or alarms be triggered when the tank is 90 percent full, State B's requirements can still be considered no less stringent because they still accomplish the Agency's main goal: getting equipment and devices to prevent spills and overfills on all new and upgraded UST's.

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OSWER DIRECTIVE 9650.11

Upgrading Existing UST Systems

Objective §281.31

Cite
Regulation   Statute
The State must have requirements that ensure existing UST systems will be replaced or upgraded before December 22, 1998, to prevent releases for their operating life due to corrosion, and spills or overfills.    

Notes on Fulfilling the Objective

  1. Within 10 years all existing UST systems must meet essentially the same standards of release prevention as new UST systems, which includes corrosion protection and spill and overfill equipment.
  2. The 10–year schedule cannot include phase–in of leak detection requirements, which must be completed within 5 years (see Objective 281.33(b) on Release Detection).
  3. The State may develop a phase–in schedule that will bring all existing UST's into compliance incrementally during the 10–year period or establish a deadline without specifying a schedule.
  4. Commonly accepted practices for protecting a structurally sound existing steel tank from failure due to corrosion consist of internal lining, retrofitting with a cathodic protection system, or both. EPA believes all of these methods are protective of human health and environment.
  5. The proposed objective for upgrading existing UST systems included a provision that allowed States to demonstrate in their application how other State requirements will achieve this Federal goal without an explicit 10–year deadline. This provision has been deleted in the final State Program Approval Rule. EPA was concerned that the provision in the proposed objective would lead States to believe that a time period greater than 10 years for upgrading was allowable. In addition, it was unclear what information would provide an adequate demonstration. Therefore, States must require existing UST systems to be replaced or upgraded before December 22, 1998.
  6. More discussion on upgrading existing UST systems may be found in the preamble to the final State Program Approval Rule (53 FR 37225) and in the preamble to the final Federal Technical Standards (53 FR 37130).

* * *

State Examples for Upgrading Existing UST Systems

Defining When a Tank Needs To Be Upgraded. The following example shows State requirements that do not meet the Federal objective for upgrading existing UST systems. State C requires owners and operators to explicitly determine how long each tank will last without developing a leak. This regulatorily–defined lifetime is considered to be the tank's life expectancy. When the end of the life expectancy is reached, the UST system must be replaced, upgraded, or closed, whether or not a leak has occurred. Life expectancy of the UST system is calculated using the tank's age, the tank manufacturer's guarantee, and the type of corrosion protection in use on the tank. If the tank's age is unknown, the calculation is more complicated and requires the assistance of a corrosion expert. Once the life expectancy of the tank is defined, the tank will fall into one of two groups as defined by the State. If the life expectancy ends after November 1, 1988, the UST system may be used for up to five years beyond the calculated life expectancy. If the life expectancy ends before November 1, 1988, the UST system may be used until November 1, 1988 or up to five years beyond the calculated life expectancy, whichever is later.

Under the State's current approach, State C's requirements cannot be approved as no less stringent for two reasons. First, to properly upgrade an UST system under this objective, spill and overfill equipment must be added. State C does not require that existing UST's be retrofitted with this equipment. Second, under this objective, all unprotected UST's in the State must be upgraded by 1998. While the State requirements for UST's with life expectancies that end before November 1, 1988, will fulfill the objective, the State's requirements will allow some UST's with life expectancies that end after that date to be upgraded sometime after 1998. Hypothetically, if a tank without corrosion protection was installed in April 1985 (before interim prohibition) and the life expectancy was determined to be 10 years (April 1995), the tank may be operated until April 2000 before it is upgraded, replaced or closed, according to State law. State C could meet the objective by revising their requirement so that all UST's must be brought into compliance by the time their life expectancy is reached or by December 22, 1998, whichever is earlier; and by requiring the addition of overfill and spill protection equipment on upgraded UST's.

Defining What Upgrade Consists Of. State E takes another approach to this objective by requiring scheduled closure of UST systems that are not corrosion resistant. The State prohibits the use and operation of all non–conforming UST systems (all bare steel tanks, asphalt coated steel tanks and other unprotected steel tanks and piping) after October 1, 1997. Replacement UST's are subject to the new UST system standards, and existing UST's cannot be upgraded. Thus, all non–conforming tanks and piping must be closed within the remaining 9 years of the State's mandatory closure period according to a phase–in schedule based on UST system age and location. If the tank's age is unknown, it is presumed to be 20 years old on October 1, 1989. The State requirements cannot be considered no less stringent because existing corrosion–protected UST's without spill and overfill equipment are not required to be retrofitted with that equipment.

State D fulfills the Federal upgrading objective of §281.31 by requiring both corrosion protection and overfill and spill protection systems to be present on existing UST systems by 1998. [State D, however, also considers the addition of leak detection equipment to be part of an UST system upgrade. In other words, release detection is also phased–in over a 10–year period, and therefore, the State program does not meet the release detection objective found at §281.33 (see examples pertaining to the release detection objective).]

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OSWER DIRECTIVE 9650.11

General Operating Requirements

Objective §281.32

The State must have requirements that ensure all new and existing UST systems conform to the following: Cite
Regulation   Statute
(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: 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 records of monitoring, testing, repairs, and closure maintained that are sufficient to demonstrate recent facility compliance status, except that records demonstrating compliance with repair and upgrading requirements must be maintained for the remaining operating life of the facility. These records must be made readily available when requested by the implementing agency.     

Notes on Fulfilling the Objective

  1. Codes of practice developed by nationally recognized organizations and national independent testing laboratories may be used to demonstrate that the State requirements are no less stringent in the areas of: repairing and relining tanks; operation and maintenance of corrosion protection; and compatibility.
  2. Under the Federal Technical Standards, cathodic protection systems must be tested within 6 months of installation and every 3 years thereafter; and impressed current systems must be inspected every 60 days to ensure that the equipment is turned on. Each State must require that cathodic protection systems be periodically tested and that such tests include the checking of impressed current systems.
  3. Compatibility is an issue for concern primarily when high–ethanol/methanol content fuels are stored in certain fiberglass tanks.
  4. National codes of practices and warranties from tank lining companies generally require that internal inspections be conducted within 10 years after lining, and every 5 years after that.
  5. The National Leak Prevention Association (NLPA) Standard 631 contains procedures for the repair of fiberglass reinforced plastic (FRP) tanks. In addition, manufacturers of FRP tanks and piping publish procedures for the repair of their systems. These standards and procedures may be used to fulfill the objective. More discussion on the repair of FRP tanks can be found in the preamble to the final State Program Approval rule, beginning on the bottom of the third column at 53 FR 37139.
  6. More discussion on upgrading existing UST systems may be found in the preamble to the final State Program Approval Rule (53 FR 37225) and in the preamble to the final Federal Technical Standards (53 FR 37130).

* * *

State Examples for General Operating Requirements

Defining Product Transfer Practices. State F meets the first subsection of this objective because it requires that API–recommended practices concerning product deliveries to underground storage tanks be followed at all UST systems in the State. A different approach, which also fulfills this part of the objective, is used in State G. The State's regulations hold both the carrier (or transporter) and the operator responsible for employing practices to prevent spills and overfills. The carrier and the operator must be trained in the mechanics of proper transfer and emergency response procedures. Before transfer, the operator must determine that the tank has enough receiving capacity to accommodate the volume of petroleum to be transferred. During the transfer, the carrier must be at the controls to monitor the delivery operation.

Maintaining Corrosion Protection. State H's requirements demonstrate one way to satisfy subsection (b) of this objective concerning the operation and maintenance of corrosion protection by qualified people. The State requires that UST systems protected by galvanic cathodic protection systems (also known as sacrificial anodes) have an accurate structure–to–soil potential reading performed by a qualified person upon installation and annually thereafter. In addition, when underground work is performed at the site, the State requires the cathodic protection system to be monitored 6 to 12 weeks after the work has been completed to ensure that the system is still functioning properly. UST systems protected by impressed current systems are required by State regulations to have their rectifier meter inspected monthly and the readings recorded in a log book; and a person who is qualified (by training and experience) to measure the structure–to–soil and structure–to–structure potentials, the rectifier voltage, and current output must conduct an onsite test and inspection at least once a year. Finally, State H provides a list of procedures detailing how the cathodic protection system must be monitored, which includes following practices recommended by the National Association of Corrosion Engineers (Recommended Practice 0285).

Ensuring Proper Repairs and Upgrades. State I's regulations provide an example of requirements that satisfies subsection (d) of this objective, which concerns the repair and upgrade of UST systems. The State mandates that a determination must be made by fire department officials on whether the tank or its components may be repaired or must be removed and replaced. The only form of repair allowed by the State is lining the tank. Before a steel tank can be repaired by lining, the tank must be physically inspected and a local fire department official must determine whether the tank meets all of the following conditions:

These requirements are no less stringent in the area of determining structural integrity before lining a tank. The State also requires that any tank replacement or repair as well as piping repairs must be performed: (1) by a State–approved tank lining company and in accordance with API 1631 (if the repair consists of tank lining), (2) by qualified technicians, and (3) in accordance with manufacturers' instructions.

EPA would recommend that the State consider a requirement specifying the design life of a lined tank. Unless a cathodic protection system is applied when the tank is lined or within 10 years, the tank must be internally inspected periodically after the initial 10 year life of the lining to make sure that tank's structural integrity will continue for the remainder of its operating life. Tank lining company warranties and the codes generally require that internal inspections be conducted after 10 years, and then every five years thereafter, because the tank lining is expected to prevent releases only for the first 10 years.

Defining Adequate Recordkeeping. State J has developed recordkeeping requirements that satisfy subsection (e) of this Federal objective. The State mandates the on–site maintenance of written records of all monitoring activities for at least 3 years from when the monitoring was performed. In addition, the State requirements enable local implementing agencies to mandate the owner or operator to provide the local agency with monitoring records or a monitoring summary on a routine basis. Monitoring records must include:

Another recordkeeping provision in this State program requires that UST system permits be renewed every five years. To get a permit renewed, an UST inspection must have been performed within the 3 previous years, and the UST system must have been found to be in compliance with applicable regulations for design, construction, and monitoring. Thus, the UST must be upgraded and have records that show the upgrade has taken place before the permit can be renewed. In this way, the State is aware of and can, if it chooses, maintain its own records relating to UST system repair, upgrade, and replacement. For UST closure by removal, State J requires the owner or operator to completely describe all disposal and recycling procedures used for all UST system components. When an UST system is closed, the owner or operator must demonstrate to the satisfaction of the State that no release has occurred. These State requirements clearly fulfill subsection (e) of this objective.

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OSWER DIRECTIVE 9650.11

Release Detection

Objective §281.33

(a) Release detection requirements for owners and operators must consist of a method, or combination of methods, that is: Cite
Regulation   Statute
(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;
    
(b) Release detection requirements must, at a minimum, be scheduled to be applied at all UST systems: Cite
Regulation   Statute
(1) immediately when a new UST system is installed:
    
(2) on an orderly schedule that completes a phase–in of release detection at all existing UST systems (or their closure) before December 22, 1993, except that release detection for the piping attached to any existing UST that conveys a regulated substance under greater than atmospheric pressure must be phased–in before December 22, 1990.
    
(c) All petroleum tanks must be sampled, tested, or checked for releases at least monthly, except that: Cite
Regulation   Statute
(1) new or upgraded tanks (that is, tanks and piping protected from releases due to corrosion and equipped with both spill and overfill prevention devices) may temporarily use monthly inventory control (or its equivalent) in combination with tightness testing (or its equivalent) conducted every 5 years for the first 10 years after the tank is installed or upgraded, or until December 22, 1998, whichever is later; and
    
(2) existing tanks unprotected from releases due to corrosion or without spill and overfill prevention devices may use monthly inventory control (or its equivalent) in combination with annual tightness testing (or its equivalent) until December 22, 1998.
    
(d) All underground piping attached to the tank that routinely conveys petroleum must conform to the following: Cite
Regulation   Statute
(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.
    
(e) All UST systems storing hazardous substances must meet the following: Cite
Regulation   Statute
(1) all existing hazardous substance UST systems must comply with all the requirements for petroleum UST systems in sections 281.33(c) and (d) above, and after December 22, 1998, they must comply with the following subsection (e)(2).
    
(2) all new hazardous substance UST systems must use interstitial monitoring within secondary containment of the tanks and the attached underground piping that conveys the regulated substance stored in the tank, unless the owner and operator can demonstrate to the State (or the State otherwise determines) that another method will detect a release of the regulated substance as effectively as other methods allowed under the State program for petroleum UST systems and that effective corrective action technology is available for the hazardous substance being stored that can be used to protect human health and the environment.
    

Notes on Fulfilling the Objective

  1. In comparing methods of release detection, the implementing agency must consider the size of release that the method can detect and the speed and reliability with which the release can be detected.
  2. The Federal Technical Standards allow six specific methods of release detection. These are: in–tank monitors or tank gauging, interstitial monitoring within a secondary barrier, ground–water monitoring, vapor monitoring, and periodic tank tightness tests combined with monthly inventory control. The Federal Technical Standards also allow any method that achieves a release detection rate of 0.2 gallons per hour (280.43(h)(ii)). Finally, in a manner similar to the release detection objective in paragraph (a)(1), the Federal Technical Standards allow the use of a release detection method that the owner or operator demonstrates is as effective as any of the listed methods.
  3. State requirements for release detection on piping do not have to address release detection for fill pipes and vent pipes to be considered no less stringent, as release detection is required only for piping that routinely conveys petroleum.
  4. Discussion on European–style design of a suction piping system may be found in the preamble to the proposed Federal Technical Standards (52 FR 12744), in the preamble to the final Federal Technical Standards (53 FR 37154), and the preamble to the final State Program Approval Rule (53 FR 37227).
  5. Discussion on release detection methods may be found in the preamble to the final Federal Technical Standards (53 FR 37145).

* * *

State Examples for Release Detection

Defining the General Methods. State K's regulations may fulfill subsection (a) of the release detection objective. Release detection has already been mandated for all UST sites in this State. State K has allowed owners and operators of existing UST systems containing petroleum to choose from among eight release detection alternatives (one is a three–year interim alternative):

As illustrated above, most of the methods involve a primary release detection system combined with at least one backup system, except that no backups are required for monthly tank tightness testing and monthly ground–water monitoring. To determine whether each alternative is acceptable it is necessary to decide if it can detect " a release...as effectively as any method allowed under the Federal Technical Standards (§280.40) ..." State K's first alternative, monthly tank testing, would be acceptable as long as tightness tests were required, at a minimum, to reliably detect a 0.2 gallon per hour release. This determination is based on the standard for "other methods" in §280.43(h). The second alternative is also acceptable as long as the vadose monitoring meets the standards for vapor monitoring described in §280.43(e). The third method would be acceptable for tanks under 2000 gallons until 1998 and for tanks under 550 gallons after 1998 as long as the static inventory control and tank testing methods were as effective as those described in §280.43(b) and (c) respectively. The fourth method is acceptable except that the weekly gauging alternative may only be applied to tanks under 2000 gallons. Once again, this assumes the methods described are as effective as the corresponding ones in the Federal standards. The fifth method will be good enough until 1998, but will not fulfill subsection (c) of this objective after 1998. The sixth alternative would also be acceptable until 1998. After 1998, the method would be acceptable only if the vadose or groundwater monitoring were performed at least monthly and that these methods were as effective as those in the Federal Standards. Any of the last five alternatives could also be approved if State K could demonstrate that the combination of methods met the performance standard for other methods in §280.43(h). In addition, most of these methods do not appear strict enough on piping to meet the objective.

Defining the Phase–In Schedule. State K's program requires that release detection systems be in place at all new and existing UST systems by July 1, 1985. Thus, the State program has already completed phase–in of release detection and is an example of one way to satisfy subsection (b) of this objective.

While State L's regulations show another approach to this objective, their regulations cannot be considered no less stringent. The State requires that release detection be phased–in at existing UST systems based on the following schedule:

(By the term, "Federally–regulated agricultural USTs", the State is referring to those farm tanks not exempted from the final EPA technical standards; that is, farms tanks with a capacity of more than 1,100 gallons used for storing motor fuel for commercial purposes.) These State criteria for phasing–in release detection are based on the presence of corrosion protection and on the type of UST owner (agricultural vs. non agricultural), whereas EPA's phase–in criteria are based on the age of the UST system. State L generally has an earlier phase–in deadline for release detection than that found in the objective, with the exception of the phase–in for "agricultural USTs". State L's phase–in for release detection will be completed for most USTs by September 1991, and for "agricultural USTs" by 1998. To meet the objective, however, release detection must be phased in at all existing UST systems by 1993. Because one segment of the tank universe (Federally–regulated agricultural tanks) will not have release detection until 1998, the State cannot be considered no less stringent for this category of USTs. However, if the State regulations did not single out agricultural USTs on a separate schedule and simply based its phase–in schedule on whether or not the UST system was protected from corrosion, they could be considered no less stringent, as they would achieve the goals of the release detection objective before the Federal deadline of 1993. While the Federal technical regulations require, and we would hope that most State regulations would also require a release detection schedule based upon tank age, the objective requires only that release detection be applied by 1993 in an orderly fashion. Thus, while State L's release detection requirement may not be the optimal approach for meeting the objective, it does meet the bottom line requirements and could be considered no less stringent for the purposes of State Program Approval application review.

Defining Release Detection for Piping. State K's regulations provide an example of requirements for piping that do not achieve subsection (d) of this objective. Owners and operators are required by the State to:

These State requirements meet the first part of subsection (d), which addresses the problem of identifying major piping failures within an hour. These State requirements do not go far enough, however, because under the objective, pressurized piping must also have monthly monitoring or annual tightness tests performed to check for very small slow releases. The State's requirement for suction piping may or may not be sufficient to meet the objective and further clarification from the State probably would be needed for the EPA Regional Office to make a decision. If by "monitoring suction lines daily" the State means that the owner or operator must do a visual inspection every day, this requirement would not replace the need to do a pressurized line test every three years. However, if the State can produce evidence that the State's method is as reliable as monthly leak detection, then it probably would be acceptable as no less stringent. Alternatively, the State could demonstrate that the State's design standards for suction piping only allow the use of European style piping in which the contents of the pipe drain back into the storage tank if the suction is released and the check valve on the piping system can be inspected. In this case, the State's requirements for suction piping could be considered no less stringent than subsection (d) of this objective.

Defining Release Detection for Hazardous Substance USTs. State K's requirements demonstrate one way to address subsection (e) of this objective, but they do not fulfill the objective. The State requires that all new (petroleum and hazardous substance) USTs have secondary containment and interstitial monitoring. However, State K does not require existing hazardous substance USTs to be upgraded with secondary containment and interstitial monitoring. To fulfill subsection (e) of this objective, State K will need to require that within 10 years all existing hazardous substance USTs use interstitial monitoring within secondary containment of tanks and attached underground piping, unless the State chooses to allow variances. The State may allow variances only if the owner and operator demonstrates to the State (or the State otherwise determines) that (1) 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 (2) effective corrective action technology is available for the hazardous substance being stored that can be used to protect human health and the environment.

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OSWER DIRECTIVE 9650.11

Release Reporting, Investigation, and Confirmation

Objective §281.34

All owners and operators must conform with the following: Cite
Regulation   Statute
(a) Promptly investigate all suspected releases, including:
(1) when unusual operating conditions, release detection signals and environmental conditions at the site suggest a release of regulated substances may have occurred; and
    
(2) when required by the implementing agency to determine the source of a release having an impact in the surrounding area; and
    
(b) Promptly report all confirmed underground releases and any spills and overfills that are not contained and cleaned up.     
(b) 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.     

Notes on Fulfilling the Objective

  1. State requirements will need to establish how and when a suspected release is determined to be a confirmed release and corrective action must begin. It is important that State requirements for release investigation be clear on this point. Ambiguity on how a suspected release must be investigated and when it is confirmed may result in delays on the part of the owner and operator in initiating clean–up actions.
  2. The Federal objective requires "prompt" investigation because EPA believes the precise definition of what constitutes a prompt investigation should be left to the discretion of the States within reason. The ability to investigate a site can depend on the site and on the availability of the existing service community. However, if a State program allows owners and operators to carry out the same or similar investigations as required by EPA significantly beyond 7 days, that State program is not likely to meet the objective.
  3. A State with reporting levels for spills and overfills greater than 25 gallons can be considered no less stringent if two conditions are satisfied:
    1. The State mandates that the unreported spill be completely contained and cleaned up; and
    2. The State has requirements that identify the specific steps an owner and operator must take to ensure unreported spills and overfills are contained and cleaned up in a manner that will protect human health and the environment.
  4. A spill or overfill of a hazardous substance that results in a release to the environment that equals or exceeds its reportable quantity under CERCLA (40 CFR Part 302) must be reported IMMEDIATELY to the National Response Center and to appropriate State and local authorities.
  5. More discussion on release reporting, investigation, and confirmation methodology may be found in the preamble to the final State Program Approval Rule (53 FR 37229) and in the preamble to the final Federal Technical Standards (53 FR 37169).

* * *

State Examples for Release Reporting, Investigation, and Confirmation

Defining a "suspected" release and confirming it. State M's requirements demonstrate one way to fulfill subsection (a) of this objective for release investigation and confirmation. The State mandates that owners and operators complete an investigation within 7 days of identifying a "suspected" release. This requires prompt reporting of releases and is also the same as EPA's technical standards for investigation.

As part of the investigation process, State M requires the owner or operator to do some immediate double–checking of equipment and other site check activities at all sites where the owner or operator suspects a release may be occurring. The State, however, may need to clarify for the EPA Regional Office as to whether or not the State has the authority required in (a)(2) of this objective. The question that needs to be answered is: when the State has reason to believe that a release is having an impact in the surrounding area and that the source needs to be determined, can the State require a nearby owner or operator to investigate his tanks and site for the source of the release? Can a potential off–site impact be classified as a suspected release for which the State can require a nearby UST owner to investigate his site? The State must have this authority to fulfill subsection (a)(2) of this objective; however, such authority does not have to appear in the regulations and may instead be present under enforcement authorities. This is the reason a clarification might be necessary.

State Z had a statutory definition of "release" that was identical to the Federal definition, except that it excluded incidents involving less than 25 gallons of product. While States are allowed to establish administrative thresholds for reporting spills and overfills (e.g., report all spills and overfills greater than 25 gallons), the State must ensure that all spills and overfills that are unreported are completely contained and cleaned up. Thus, the State's requirements are less stringent than the Federal objective because no action would be required of owners and operators for incidents involving less than 25 gallons of product, as such incidents are not defined as "releases".

Defining a "confirmed" release and reporting it. The following example of State criteria for confirming and reporting a release demonstrates one way to fulfill subsection (b) of this objective. According to regulations in State M, a release is confirmed when any of the following conditions exists: (1) test, sampling or monitoring results from a leak or discharge detection method that indicate a release has occurred when the monitoring equipment has been checked and found to be operational; (2) test results from a precision test of the UST and piping, conducted separately, which is performed after the top of the tank is excavated and all loose fittings, vent pipes or other equipment is checked, replaced or tightened, and which indicate that a release may have occurred; (3) results from a closure plan indicate the presence of contamination in excess of State standards and indicate that a release has occurred; and (4) any other method, including visual inspection, that confirms that a release has occurred. Once the release is confirmed, the State mandates that "any person" must immediately report the release to the State hotline and to any local agencies, if required by local regulations. The term "any person" includes but is not limited to, the owner or operator of an UST system or contractor hired to install, remove or test an UST system.

Reporting on Spills. State M's regulations illustrate one possible approach for reporting and cleaning up spills that will fulfill subsections (b) and (c) of this objective. State M, like many other States, does not distinguish between aboveground and belowground releases in their reporting and corrective action requirements. The State requires that all confirmed releases be reported, and that all confirmed releases be contained and cleaned up in a manner that protects human health and the environment. The State does not set a limit for reporting spills, which means all spills must be reported. The State chooses to direct owners and operators on how to contain and clean up all spills.

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OSWER DIRECTIVE 9650.11

Release Response and Corrective Action

Objective §281.35

The State must have requirements that ensure: Cite
Regulation   Statute
(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 (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 section 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.     

Notes on Fulfilling the Objective

  1. Actions appropriate to stop a release will vary depending on how the release was confirmed as well as the conditions at the site. If the confirmation of the release identifies the tank or piping component responsible for the release, then actions to prevent future releases could include emptying the problem tank or not using the suspect piping until it is replaced or repaired.
  2. The use of the word "promptly" in the objective is intended to mean that the State must require that owners and operators take such steps quickly to minimize future releases. To provide adequate enforcement of such a requirement, the State must clearly define, using a number, the time frame within which an owner or operator is expected to respond to this requirement.
  3. The immediate threats to health and safety that normally are a concern at release sites include: explosive gas levels or vapor threats due to the exposure of contaminated soils; the off–site impacts of free product or resulting vapors on nearby water, sewer lines, or building basements; and the location of any nearby ground–water users who could be exposed to or threatened by dissolved contaminants in their drinking water.
  4. Extent of cleanup of contaminated soil and ground water may be based on a site–specific risk analysis that includes potential human exposure or on State–wide numerical standards that establish clean–up levels at every site.
  5. Reporting on corrective action plans must result in information being made available to the State quickly to ensure that steps are being taken to prevent further contamination, and so that technical direction can be provided by the State.
  6. Information on the site and surrounding areas should be reported so that the corrective action can be tailored to the specific conditions of the site and nature of the release.
  7. While it is permissible for States to satisfy the objective by requiring owners and operators to notify the interested public about anticipated or ongoing corrective action measures, a State that places the burden of notification on the owner or operator, should provide specific guidelines to notify the owner or operator of exactly what information must be provided to the public and the forum in which it must be set forth. For instance, if the State feels that reporting violations in a County or State newspaper of wide circulation will not be sufficient to reach the intended public audience, it may specify that publication of notice in a newspaper of more specific, local distribution is required.
  8. Initial corrective action steps, results of investigation of soils and ground water, and plans and status reports on long–term remediation of contamination at the site are among the types of specific information that the State might require.
  9. One possible model to use is the Federal Technical Standards (280.66(b)), in making a determination that a corrective action plan will adequately protect human health, safety, and the environment, the State implementing agency should consider the following factors as appropriate:
    • The physical and chemical characteristics of the regulated substance, including its toxicity, persistence, and potential for migration;
    • The hydrogeologic characteristics of the facility and the surrounding area;
    • The proximity, quality, and current and future uses of nearby surface water and ground water;
    • The potential effects of residual contamination on nearby surface water and ground water;
    • An exposure assessment; and
    • Any information assembled in compliance with the State corrective action requirements.
  10. States may use priority ranking systems to help define priorities for their corrective action workload. A priority ranking system is a good tool for States to ensure that the riskiest sites are addressed quickly and that the implementing agency systematically addresses the total corrective action workload.
  11. More discussion on release response and corrective action may be found in the preamble to the final State Program Approval Rule (53 FR 37230) and in the preamble to the final Federal Technical Standards (53 FR 37173).

* * *

State Examples for Release Response and Corrective Action

Prompt Assessment and Stopping of Releases. State O requires that "where a confirmed tank failure has occurred," the owner or operator must empty the UST system within 5 days. The term "tank failure" in this State requirement may be too narrow to meet the objective because it could be interpreted to not include piping failures or spills and overfills. The regulation does not specify the circumstances for when this requirement applies. If this is the State's only requirement to ensure prompt action be taken to stop a confirmed release of a regulated substance, then this requirement will be considered less stringent than the objective because 5 days is not necessarily prompt enough for all circumstances. For example, action must be taken within a shorter period of time than in five days if a large release is suspected, and can only be stopped by rapid (if not immediate) removal of the product. EPA also notes that emptying the tank, as is required by this State, may not always be necessary. In the case of a piping failure, merely preventing continued use of the suspect piping run until it was repaired would be sufficient to stop further releases of regulated substances from the UST system.

Finally, State O does not require that the site of the "confirmed tank failure" be assessed to determine if and how cleanup should begin. The State will need to clarify how its regulations address this subject or revise its regulations in order to be considered no less stringent in meeting this aspect of the objective.

Defining the Steps Needed to Mitigate Hazards and Investigate Impacts. State P's regulations show one approach to satisfying subsection (b) of the Federal objective, which addresses mitigation of immediate health and safety hazards including the investigation and recovery of free product. The State requires that UST owners and operators: (1) mitigate any fire, safety, or health hazard, including hazards from combustible vapor or vapor inhalation and the removal of ignition sources; and (2) conduct a visual inspection to detect any above–ground discharge, and where any above–ground discharge is evident, mitigate the effects of the discharge. In addition, the State requires that the owner or operator must: (3) remove free product from the water table or any aquifer material; (4) remove or decontaminate contaminated soil, storing contaminated soil if necessary in such a manner that provides complete isolation of the soil from the environment, and any hazardous substances in the soil must be prevented from coming into contact with or being released into the environment; and (5) repair, replace, or close the UST system. These requirements satisfy aspect (b) of the objective.

Defining Investigative Actions. State P's regulations also demonstrate one way to fulfill subsection (c) of this objective. The State requires that every owner or operator collect the following information about the release: (1) the anticipated migration route of the regulated substance; (2) characteristics of the surrounding soil including composition, geology, and hydrogeology; (3) the results of any monitoring or sampling conducted in connection with the discharge that has been collected and analyzed in accordance with State procedures; (4) the proximity of the discharge to potable water supplies, surface water bodies, and populated areas; (5) a detailed description of corrective actions taken and any planned; and (6) any other relevant information requested by the State. These State requirements fulfill subsection (c) of this Federal objective. It should be noted, however, that subsection (e) of this objective requires timely reporting of the activities completed in each phase of the cleanup in order to determine its technical adequacy. State P does not identify in its regulations when the information (collected during the investigations listed above) must be submitted. The EPA Regional Office may ask the State additional questions to make sure that subsection (e) of the objective is met. For example, can the State ask for the site assessment information at any time before the cleanup is completed? Does the State have access to enough information regarding each release site to determine that each cleanup operation will protect human health and the environment? In the site–specific approach to cleaning up UST releases, reporting is important because the consideration accorded to some factors, such as aquifer resource value and its current and potential use, is largely left to State (or local) policy. Given the number of releases that are expected to be detected in the near future, EPA acknowledges that there is potential for delayed cleanups under this approach if the State is unable to review all the reported information in a timely manner. The act of reporting information does not necessarily have to be formal, however, and the State may choose to accept information over the telephone or through personal interviews on site. Alternatively, the State may use previously collected information to categorize separately those releases that need to have more extensive reporting than others. In order to be no less stringent overall than this objective, State P may need to clarify the specifics as to when the information gathered under these State regulations must be reported to ensure that the need for prompt action and timely reporting is fulfilled.

Defining "Clean Up". State Q has requirements for corrective action that consist of requiring the owner or operator to repair damage caused by the release and restore the environment to a condition and quality acceptable to the State agency. This requirement is not sufficient to fulfill subsection (d) of this objective because the State does not define the criteria that will be used to determine what "acceptable to the State" is. The State must elaborate on what the criteria or basis will be for deciding when to continue and when to stop clean up. To make this requirement no less stringent, the State must at a minimum, require that the release be cleaned up as necessary to protect human health and the environment. Although this is a fairly general criterion, several States already have opted for such general requirements in their regulations because it gives them the authority to oversee all aspects of the corrective action effort while at the same time, providing them with flexibility to tailor State requirements for corrective action to each site. However, this type of regulatory language also places a greater burden on the State program because it must be prepared to individually oversee every action on every site. To avoid the tasks of such close oversight, a State that employs a general standard in its regulations (for example, "as necessary to protect human health and the environment") could issue basic guidelines for corrective action that would alleviate some of the responsibilities of such site–specific direction.

Reporting On Corrective Actions Taken. The following requirements of State P illustrate one approach to subsection (e) of the objective, which does not clearly fulfill the objective. The State may need to make some changes or provide some clarification to the EPA Regional Office. State P requires owners and operators, in an initial notification of a confirmed release, to provide information on the type and quantity of the substance released, the location of the release, and the actions being taken to clean up the release. In addition, the State requires owners and operators to submit a corrective action plan (with an implementation schedule) within 120 days of release confirmation date, and to implement the plan in accordance with the schedule. The implementation schedule must include target dates to carry out the following: (1) soil, surface and ground water sampling; (2) monitor well installation; (3) the staging and/or disposal of soils; (4) the construction of soil or ground–water treatment systems; (5) the provision of alternate water supplies; and 6) the periodic re–evaluation of the effectiveness of clean–up measures instituted. The release confirmation notification and the corrective action plan submission make up the entire body of reporting requirements in this State; thus the reporting on the initial actions taken and the up–front release assessment steps, as well as the corrective action plan, must be provided at 120 days. To be considered no less stringent in subsection (e) of the objective, the State must require that the owner or operator provide information concerning the immediate corrective action steps required in subsections (b) and (c) (such as the abatement of fire hazards and the investigation and removal of free product) well before 120 days have passed. Provided that the owner and operator has mitigated any immediate health and environmental threats posed by the site and has provided this information to the State, the information required by State P in steps 3, 4, 5, and 6 focuses on long–term corrective actions, and reporting at 120 days is sufficient.

Using a different approach, State R shows another way to fulfill subsection (e) of this objective. State R provides a corrective action manual to owners and operators of leaking USTs that presents detailed technical instructions on reporting information in terms of: (1) investigating suspected or known leaks for underground fuel storage sites; (2) assessing risk to human health and the environment when leaks have occurred; (3) determining cleanup levels in soil, ground water, and air for contaminated sites; (4) screening out sites that represent an acceptable degree of risk from further study; and (5) taking remedial action. This manual is an example of procedures that are used to support relatively general State regulations; it provides specific direction to the regulated community on what is expected from them, what actions they must take and when they must report. As long as the procedures are enforceable, this approach can be considered no less stringent than subsection (e), as well as subsections (a), (b), (c), and (d) of this Federal objective.

Providing Public Notice. State S does not adequately fulfill subsection (f) of this objective. In major corrective action cases, where ground–water recovery and treatment are involved, State S issues a permit for treatment of contaminated water and discharge of the treated waters. Before a permit is issued, the public is notified. The Federal objective, however, requires that the public must be notified when any long–term cleanup is undertaken. Generally, issuing a water treatment permit requires a public hearing because of concerns about discharges into surface water, and this hearing or meeting serves an entirely different purpose than that of notifying the public of long–term cleanups of petroleum releases. EPA believes that this requirement is not an onerous burden, as a public hearing or meeting, or even formal response to comments, is not necessary to fulfill this objective. The problem with State S's approach is that not all long–term cleanups require a water treatment permit and so there will be instances under this State program when the affected public is not notified when they should be notified.

State T's policy, however, is a good example of a State approach that does meet subsection (f) of this objective. The State requires a press release to be issued for all releases affecting ground water and all other releases involving corrective action. The press release must describe the location, the nature of the release, and announce that cleanup will be performed. This State will hold a public meeting if it appears warranted and allows public access to its files.

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OSWER DIRECTIVE 9650.11

Out-of-Service UST Systems and Closure

Objective §281.36

The State must have requirements that ensure UST systems conform with the following: Cite
Regulation   Statute
(a) All new and existing UST systems temporarily closed must:     
(1) continue to comply with general operating requirements, release reporting and investigation, and release response and corrective action;
    
(2) continue to 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) All tanks and piping must be cleaned and permanently closed in a manner that eliminates the potential for safety hazards and future releases.

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

The site must also be assessed to determine if there are any present or were past releases, and if so, release response and corrective action requirements must be complied with.

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

Notes on Fulfilling the Objective

  1. The State program must specify when a tank system is considered to be temporarily out–of–service due to the fact that it has been removed from service.
  2. The time limit for the temporary closure of UST systems has been set at one year to ensure that owners and operators of unprotected USTs that are unused are held responsible for protecting the UST system from corrosion or permanently closing it. (See part (4) in subsection (a)).
  3. Assessing the site at closure is not necessary if an external release detection method was in operation at the time of closure and it indicates no release has occurred.
  4. More discussion on out–of–service UST systems and closure may be found in the preamble to the final State Program Approval Rule (53 FR 37233) and in the preamble to the final Federal Technical Standards (53 FR 37181).

* * *

State Examples For Out–of–Service USTs and Closure

Defining Temporarily Out–of–Service. State U's regulations do not fulfill the criteria for temporary closure set out in subsection (a) of this objective. State U requires owners and operators of UST systems containing regulated substances that are temporarily out of service for 90 days or less to continue to comply with all provisions of the State's regulations (for example, release detection and corrective action). UST systems containing regulated substances that are out of service for an extended period of time, that is 3 months to 2 years, are required to comply with the following additional requirements: (1) leave vent lines open and functioning; and (2) cap and secure all other lines, pumps, manways, and ancillary equipment. Owners or operators of temporarily or extended out–of–service UST systems that have been emptied and do not contain a regulated substance are required by the State to maintain cathodic protection. Finally, the State requires UST systems that have been removed from service for a period of 2 years or more to be permanently closed. State U's requirements do fulfill the objective for USTs that are temporarily out–of–service one year or less. However, these requirements are less stringent concerning USTs closed for more than 1 year. To be considered no less stringent than aspect (a) of this objective, State U's requirement needs to be changed to mandate that an UST system that does not have corrosion protection and has been removed from service for one year or longer must permanently close, unless the State allows an extension based on the results of a site assessment.

Defining Permanent Closure. The following examples illustrate two different States' approaches to the issue of permanent tank closure. The first, State V, has regulations that do not fulfill subsection (b) of this objective. State V requires that all UST systems being permanently closed be removed (the State must be notified 10 days in advance). The State allows abandonment in place only if it is not physically possible or practicable to remove the UST system (the State lists instances of when this would be allowed). For both methods of closure, the State provides detailed lists of procedures that must be followed to avoid causing safety hazards and future releases, including emptying and cleaning out the tanks. These regulations, however, are less stringent than subsection (b) of EPA's closure objective only because they do not specify that a site assessment must be performed at permanent closure to identify any past or on–going releases. The State program must require a site assessment to satisfy this objective.

State W uses a different approach to permanent closure. In addition, the State's requirements do fulfill the objective. The State requires that procedures for permanent closure include: (1) removal of all residual liquid, solids, or sludges from the tank and appurtenant piping by draining, pumping, or in–tank cleaning; (2) discharging such material in accordance with all applicable Federal, State, and/or local regulations; and (3) purging all flammable vapors. The State further requires that closure be performed in accordance with the State's Uniform Construction Code; American Petroleum Institute Standard 1604, "Recommended Practices for Abandonment and Removal of Used Underground Storage Tanks;" and any standard or device that the State determines to be protective of human health and the environment. In addition, the State requires owners or operators to submit a closure plan to the State agency that includes provisions for performing a site assessment. This report triggers release response and corrective action requirements if it is determined that an on–going or past release has occurred at the site. The above State requirements fulfill subsection (b) of EPA's Federal objective.

Requiring Retroactive Closure. State Y's regulations illustrate one way to fulfill subsection (c) of this objective. State Y mandates that all USTs that have been taken out of service for more than 1 year be properly closed by the owner or operator of the UST system or, if the owner or operator is unknown, by the current owner of the property where the UST is located. Because no date is specified, this requirement allows the State to go far back in time, even prior to the effective date of the State regulations, and requires owners, operators, or property owners to properly close abandoned tanks. For example, State Y can require a property owner that has a 20–year–old abandoned UST system to close the tank properly. This requirement satisfies subsection (c) of this objective.

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OSWER DIRECTIVE 9650.11

Financial Responsibility for USTs Containing Petroleum

Objective §281.37

(a) State requirements for financial responsibility must ensure that: Cite
Regulation   Statute
(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) Phase–in requirements. Financial responsibility requirements for petroleum UST systems must, at a minimum, be scheduled to be applied at all UST systems on an orderly schedule that completes a phase–in of the financial responsibility requirements within the time allowed in the Federal regulations under 40 CFR §280.91.     
(c) States may allow the use of a wide variety of financial assurance mechanisms to meet this requirement. Each financial mechanism must meet the following criteria: be valid and enforceable; be issued by a provider that is qualified or licensed in the State; not permit cancellation without allowing the State to 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 circumstance that would impair or suspend coverage.     
(d) States must require owners and operators to maintain records and demonstrate compliance with the State financial responsibility requirements, and these records must be made readily available when requested by the implementing agency.     

Notes on Fulfilling the Objective

* * *

Discussion of Financial Responsibility Requirements for States

The objective for financial responsibility for USTs containing petroleum was published separately from the rest of the State Program Approval Rule. The objective appeared in the Federal Register on October 26, 1988 with the Federal Financial Responsibility Requirements for Petroleum USTs (Part 280, Subpart H).

The basic purpose of financial responsibility is simply to establish reasonable assurance that someone has the funds to pay for the costs of corrective action and third–party liability resulting from an UST release. This means that someone (or combination of persons) is ready to pay from the "first dollar" of costs incurred up to the maximum amount required by the Federal regulations.

In order to be no less stringent than the Federal requirements for financial responsibility, the State must either:

Note that while many States have enacted financial assurance funds, they are typically not being used in lieu of regulations requiring tank owners and operators to obtain the required amounts of coverage. Rather, as discussed further below, they function as one of several financial assurance mechanisms that owners can use to meet the coverage requirements.

States may allow the use of a variety of financial assurance mechanisms to meet the requirements. These mechanisms must:

The mechanisms cited in the Federal financial responsibility regulation meet the above criteria.

Finally, States must require owners and operators to maintain records and demonstrate compliance with the State financial responsibility requirements. These records must be made readily available when requested by the State implementing agency.

State Funds

In general, States have enacted financial responsibility legislation or regulations similar or identical to the Federal requirements. In addition, 43 States have either proposed or passed statutes creating State assurance funds to help owners and operators of petroleum USTs in their State comply with financial responsibility requirements. In almost all cases, the way in which States intend to use these funds is as an additional mechanism that owners and operators may choose to use to satisfy the State's financial responsibility requirements.

As is the case with other financial responsibility mechanisms, State funds must meet the five criteria for mechanisms contained in §281.37(c), which are mentioned above. For State funds, however, the main criteria of concern are the first, fourth, and fifth. With regard to the second criterion, we can generally assume that the fund has been issued by a qualifying organization, i.e., the State. As discussed in the preamble to the final rule, the third criterion was designed for guarantees, surety bonds, and letters of credit, where the Director can order the funding of a standby trust fund should a leak be suspected or confirmed after notice of cancellation. It therefore has little relevance for State funds.

In determining whether the State fund is a "valid" financial assurance mechanism (criterion 1) we suggest that Regions should rely primarily on OUST's existing guidance documents on "Reviewing State Funds for Financial Responsibility." Areas such as source and amount of funds, coverage provided, methods of payment, and eligibility would appear to be appropriate topics to consider in evaluating a State fund for "validity." We expect that most, if not all, funds that meet the criteria in the fund review guidance would be deemed to be valid. The 22 State funds that EPA has approved thus far as financial responsibility mechanisms (under Section 280.101) would be considered "valid" mechanisms for State Program Approval. However, there may be other legally justifiable criteria to use in determining whether a fund is a "valid" financial assurance mechanism for purposes of satisfying the State program approval objective. As with other State Program Approval decisions, this is a judgment call that Regions will make on a case–by–case basis.

In applying the fourth criterion, the preamble discusses it as a safeguard against legal defense costs absorbing too great a portion of coverage limits and thus leaving little coverage available for corrective action and third party liability. Although State funds are sometimes used to cover other costs, such as fund administration, this is generally acceptable, since such expenditures do not affect the per occurrence or aggregate levels of coverage being provided by the fund.

With regard to the last criterion, the State, as a provider of financial assurance, bears the same responsibility as other providers who intend to terminate coverage (Section 280.105). At least sixty days prior to the termination of fund coverage, the State must notify all covered owners and operators that coverage is terminating. The State should also advise owners and operators that they must obtain other mechanisms to satisfy the State's financial responsibility requirements.

Remember that States do not need a fund to meet the Federal objective for financial responsibility. Statutory or regulatory provisions that contain the Federal coverage requirements are sufficient for State program approval, as long as they satisfy the State program approval requirements contained in 40 CFR Part 281.37 (a)–(d). In particular, this means that each mechanism (including a State fund) that a State allows owners and operators to use to satisfy the requirement must meet the criteria contained in Section 281.37(c).

Some States may establish a financial assurance fund or other compliance mechanism after receiving approval of their program. Such modifications should be treated as changes to the State program, which are addressed under Section 281.52 of the State Program Approval rules — "Revision of Approved State Programs." The State must inform EPA of such changes, and EPA will determine in each case whether a revision of the approved program is necessary.

The financial responsibility objective under §281.37(b) in the October 26, 1988 financial responsibility rule regarding the phase–in of the financial responsibility requirements was replaced in the Federal Register on October 31, 1990. The phase–in of the financial responsibility objective is now tied to the compliance dates established by EPA under 40 CFR §280.91. This phase–in date can be characterized as a "moving target" because the compliance date for Category 4 tank owners, or the last financial responsibility compliance date, was adjusted again in 1991. (On December 23, 1991, EPA extended the financial responsibility compliance date for Category 4 tank owners (petroleum marketers owning 1–12 tanks or one facility with less than 100 tanks and non–marketers with less than $20 million in tangible net worth) to December 31, 1993 (56 FR 66369). In addition, local governments, which were originally included in Category 4, were placed in their own sub–category and received a deferral for compliance on October 31, 1990. Compliance will be required within twelve months after a final rule concerning alternative compliance mechanisms for local governments is promulgated.

OSWER DIRECTIVE 9650.11

C. Adequate Enforcement Authorities

In the Attorney General's Statement, the State must demonstrate that its enforcement authorities meet the criteria specified in Subpart D of the State Program Approval Rule which requires legal authorities for: (1) compliance monitoring; (2) enforcement response; and (3) public participation. These authorities are the minimum necessary for a program to provide "adequate enforcement." Although a State may use local agencies to implement certain aspects of its compliance monitoring and enforcement program, the application for program approval must demonstrate that the State has adequate legal authorities to enforce its requirements; the State cannot rely on local authorities in its demonstration of adequate enforcement. Tables outlining and explaining the specific requirements of the compliance monitoring and enforcement response authorities are provided below. The regulatory requirements for public participation in enforcement proceedings include options for both legal authorities and procedural requirements. However, the handbook discussion of public participation in enforcement proceedings is located in this chapter (rather than Chapter 5) because EPA believes most States will probably choose one of the authority options. A table is also provided for the public participation in enforcement proceedings requirement. Additional information on this subject is available in the preamble to the State Program Approval Rule (53 FR 37234).

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OSWER DIRECTIVE 9650.11

Legal Authorities for Compliance Monitoring

(§281.40)

The State must have the following specific compliance monitoring authorities: Cite
Regulation   Statute
(a) Any authorized representative of the State engaged in compliance inspections, monitoring, and testing must have authority to obtain by request any information from an owner or operator with respect to the UST system(s) that is necessary to determine compliance with the regulations.     
(b) Any authorized representative of the State must have authority to require an owner or operator to conduct monitoring or testing.     
(c) Authorized representatives must have the authority to enter any site or premises subject to UST system regulations or in which records relevant to the operation of the UST system(s) are kept, and to copy these records, obtain samples of regulated substances, and inspect or conduct the monitoring or testing of UST system(s).     

Notes on Fulfilling the Requirements

  1. The proposed rule limited inspection authority solely to "employees of the State." However, EPA believes that States may also wish to delegate implementation responsibility to individuals such as the local building inspector or fire marshall. Thus, in order to broaden the scope of this authority to include such persons, the Agency has in the final rule substituted the word "employee" with "representative," as provided for in Subtitle I, Section 9005 of RCRA.
  2. More discussion on legal authorities for compliance monitoring may be found in the preamble to the final State Program Approval Rule (53 FR 37234).

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OSWER DIRECTIVE 9650.11

Legal Authorities for Enforcement Response

(§281.41)

The State must have the following specific enforcement response authorities for State program approval: Cite
Regulation   Statute
(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.

    

Notes on Fulfilling the Requirements

  1. "Unauthorized activity" is considered to include any activity by an UST owner or operator that results in noncompliance with a State's UST regulations.
  2. States may find these standard legal authorities in general enforcement statutes and not necessarily in UST–specific statutes.
  3. More discussion on legal authorities for compliance monitoring may be found in the preamble to the final State Program Approval Rule (53 FR 37237).

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OSWER DIRECTIVE 9650.11

Public Participation in Enforcement Proceedings

(§281.42)

Any State administering a program must provide for public participation in the State enforcement process by providing any one of the following three options: Cite
Regulation   Statute
(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.

    

Notes on Fulfilling the Requirements

  1. These requirements are separate from the public participation requirement under the corrective action objective on page 43 of this chapter.
  2. EPA expects that States will not have difficulty in fulfilling one of the three options presented here, particularly because most States already have an authority analogous to Federal Rule 24(a)(2) as a result of involvement in the RCRA hazardous waste management program. Federal Rule 24(a)(2) is presented in Appendix E.
  3. The "right of intervention" required in the second option is considered to be the right of a citizen, having an interest that is or may be adversely affected by an UST system that is in violation of the State's requirements, to intervene in a civil action brought by the State against the owner or operator. The citizen has all the rights of an intervenor, including the right to submit a statement, the right to notice, and the right to receive motions for arguments filed by other parties to the action.

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Additional Explanation of the Public Participation Requirements

The purpose of providing public participation in the enforcement decision–making process is to meet the Federal statutory requirement, reflected in Section 7004 of RCRA, that the public be provided with a reasonable opportunity to participate in the implementation of the program. The final State program approval regulations (§281.42) require that States allow opportunities for the public to be informed and participate in the enforcement decision–making process. To provide such public participation, States may choose one of three options. The first two of these options allow States to obtain legal authorities that permit public participation in the enforcement process. The third option allows States to develop procedures that assure that the implementing agency will respond to citizen input.

States that choose not to obtain either of the two legal authorities, however, must develop procedures that assure public participation in enforcement proceedings. States choosing this option are required to provide opportunity for public comments on all proposed enforcement settlements and to respond to citizen complaints about violations. States have the flexibility to determine whether the citizen complaint is valid and to provide the appropriate response depending on the significance of the violation. To inform the public of proposed settlements for minor violations, for example, States may consider submitting to a local newspaper a public notice of the plan for returning to compliance. Public hearings may be held if enough public interest is expressed. To handle citizen complaints, States may determine the most appropriate follow–up action, depending upon the validity of the complaint.

If a State chooses the first option, (§282.42(a)), which provides authority to allow citizen intervention analogous to Federal Rule 24(a)(2), there must be an explicit assurance by the State agency that it will not oppose intervention because that applicant's interest is adequately represented by the State. In addition, if the State chooses the third option, (§281.42(c)), the State agency must provide assurance that it will not oppose citizen intervention when permissive intervention is allowed by statute, rule, or regulation. The MOA would be the most appropriate place for the State agency to articulate these assurances.

Also, 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 (§281.50(b)). The State Attorney General must certify in the Statement that these opportunities were provided.

OSWER DIRECTIVE 9650.11

D. Scope of the State Program

A State has the option to develop an UST program to regulate either all petroleum tanks, all hazardous substance tanks, or both. Depending upon which of these options a State chooses, the State must have jurisdiction over at least the same categories of tanks as the Federal program. For this reason, the Attorney General must certify that the State UST program covers the same scope of jurisdiction within each option as the Federal program, and does not exclude any part of the UST universe regulated under the Federal rule. Those categories of USTs that EPA had proposed to defer but now regulates in the final Technical Standards must be included within the scope of the State program. For example, used oil USTs need to be regulated under State programs.

For a State program to be as broad in scope as the Federal program, it must demonstrate that it covers the same UST systems and does not exclude UST systems regulated under the Federal rule. Some key definitions that define a program's scope include: "underground storage tank", "regulated substance", "petroleum", "release", "owner", "operator", and "person". If these definitions differ markedly from the Federal definitions, the State program may not be sufficiently broad in scope. For example, if the State definition of "petroleum" does not include diesel fuel, it does not cover the same scope of UST systems as the Federal program.

Certain UST systems are currently deferred from regulation in the final Federal rule because EPA has insufficient information to regulate these USTs. However, these deferred systems are subject to interim prohibition and the corrective action requirements under the Federal Technical Standards. UST systems storing fuel for emergency generators are subject to all but the release detection requirements. Thus, the EPA and the State must agree on how to oversee compliance of the regulatory requirements applicable to any deferred USTs in the Memorandum of Agreement (explained in Chapter 6). States should consider including the list of deferred USTs within their statutory authority from the start to avoid the necessity for future changes to expand their jurisdiction when complete Federal regulations for the deferred systems are published.

EPA has exempted by regulation certain other categories of UST systems entirely, and States will not need to include these systems within their jurisdictions in order to have adequate program scope for approval.

States are free to implement a State program that is broader in scope than the Federal program (§281.12(a)(3)). A State program, for example, may regulate all heating oil tanks, although tanks used for storing heating oil for consumptive use on the premises where stored are excluded from the Federal UST program. In such cases, the additional scope of coverage is not approved by EPA as part of the State program approval process. In addition, if EPA were asked to provide enforcement assistance, EPA cannot enforce the States' requirements against the tanks within the additional scope of coverage.

EPA will administer the UST program on Indian lands, except where Congress has clearly expressed an intention to grant a State the authority to regulate USTs on Indian lands (§281.12(a)(2)). If a State has authority over UST activities on Indian lands, the Attorney General's Statement must contain an appropriate analysis of the State's authority.

Jurisdiction over USTs on Indian lands will vary by State, which will necessitate a flexible approach, so it would be beneficial for States and Regions to seek out additional information, based upon their individual needs. Regional offices may find it helpful to refer to the Indian Lands Implementation Tool Kit, in order to more fully understand the issues and questions pertaining to USTs on Indian lands.

The following table contains the categories of tanks that are exempted from the Federal Technical Standards. State programs must have the authority to regulate all categories of UST systems except for those UST systems contained in this checklist. (As noted above, Federally–deferred tanks are only subject to the interim prohibition and corrective action requirements.) If the State exempts or defers any category of UST systems that are in the jurisdiction of the Federal program, a discussion must be provided in the Memorandum of Agreement on how those tanks will be covered along with a schedule for expanding the State's jurisdiction. Additional discussion on the State program scope and universe may be found in the preamble to the State Program Approval Rule (53 FR 37219).

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OSWER DIRECTIVE 9650.11

SCOPE OF THE STATE PROGRAM

The State must have authority to regulate all UST systems except those UST systems outside the jurisdiction of the Federal program, listed as follows:

Excluded by Congress
  1. Farm or residential tanks of 1,100 gallons or less capacity storing motor fuel for non–commercial purposes;
  2. Tanks storing heating oil for consumptive use on the premises where stored;
  3. Septic tanks;
  4. Pipeline facilities (including gathering lines) regulated under the National Gas Pipeline Safety Act of 1968, the Hazardous Liquid Pipeline Act of 1979, or State laws comparable to these Acts;
  5. Surface impoundments, pits, ponds, or lagoons;
  6. Storm-water or waste-water collection systems;
  7. Flow-through process tanks;
  8. Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations; and
  9. Storage tanks situated on or above the floor of underground areas, such as basements or cellars.
Excluded by EPA
  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 Subtitle I regulated substances;
  2. Any waste–water treatment tank system that is part of a waste–water 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; and
  6. Any emergency spill or overflow containment UST system that is expeditiously emptied after use.

[ Table of Contents ][ Chapters 1–3 ][ Chapter 5 ]

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