APPENDIX C STATE PROGRAM APPROVAL HANDBOOK OSWER Directive 9650.11 May 11, 1992
Tools for Implementing State Regulations
The following section describes various approaches that States have used to implement their regulations and monitor compliance. These examples are provided here to assist States in developing their UST program or making it work more effectively. The use of such approaches are merely suggestions for interested States and are not necessary to receive State program approval. New UST System Design, Construction, Installation and Notification. To make sure that installations of new UST systems are completed properly, Maine certifies installers. The certification involves a written test based on nationally-recognized codes and a review of applicant's qualifications (including apprenticeship and work experience) as an installer by the Board of Underground Oil Storage Tank Installers.
Permitting is another way to ensure that new UST systems are soundly designed, constructed, and installed. In one State, the permitting process requires the owners to describe: (1) the UST characteristics, such as tank capacity, contents, and material of construction, cathodic protection and release detection methods, and (2) facility characteristics, including property boundaries, the location of buildings at the site and in the surrounding area, the location of the proposed tank system, and the approximate location of public or private water wells and any surface water bodies within 500 feet of the proposed UST. The permitting process in Nebraska includes a review of shop drawings by the State Fire Marshal's Office and an on-site inspection of the tank and piping systems during installation.
Upon notification, Florida provides each owner or operator with a registration sticker or a certificate that lists all of the registered USTs at the facility. State regulations require that this proof of registration be posted in plain view near the UST system so that fuel distributors can verify the registration status of the UST before they make a delivery. If no proof of registration is displayed, the distributor is prohibited from making a delivery. Distributors are also required to make notification forms available to any customers who may own USTs that need to be registered.
In addition to the Federally-required notification by owners and operators of new and existing USTs, Connecticut requires notification in the event of change in ownership or control of a new or existing UST system within 15 days of the change in status. Also, owners and operators must report any changes in the information provided to the State for purposes of notification within 30 days of the change(s) (for example, type of substance stored).
Upgrading Existing UST Systems. Vermont has an innovative approach that helps to implement upgrading requirements. Vermont recently passed legislation that sets forth an incentive program to encourage UST upgrading. This program provides financial assistance to owners of retail gas stations that sell less than 20,000 gallons of gasoline per month and that want to replace their USTs in accordance with Vermont's regulations. Owners must fill out an application providing the Vermont Agency of Environmental Conservation with essential facility information. Grants up to $5,000 or the cost of bringing the system into compliance (whichever is less) may be awarded to the applicants. Priority is given to applicants from areas with a low density of retail gasoline stations and for whom the expense of tank replacement is likely to cause "termination of retail gasoline services." California is considering the establishment of a similar program with financial assistance in the form of a loan provided for UST system upgrades and repairs at small businesses.
General Operating Requirements. Maryland has developed an innovative approach to prevent operational problems that can cause overfills and spills. In Maryland, drivers of tank trucks and transports must pass an examination to demonstrate knowledge of the procedures used in the safe handling of oil, oil spill control measures, and oil spill reporting requirements. Upon successful completion of the exam, drivers receive an "Oil Vehicle Operator's Certificate", which they must carry at all times while involved in the transfer or transport of oil. Temporary (30 day) certificates are issued to new drivers provided that the distributor instructs the driver regarding basic procedures involved in safe handling of oil and oil spill reporting requirements. Interstate drivers that transport petroleum products through Maryland are not required to have an operator's certificate; however, all drivers must follow a detailed set of product transfer requirements to make sure that petroleum transfers are handled properly. These requirements supplement the typical procedural requirements that appear in Maryland's regulations and serve as a useful program implementation tool.
To ensure that substances are delivered to USTs with which they are compatible, some States require labeling of UST systems. Five States (Delaware, Florida, New Hampshire, New York, and Vermont) have issued requirements for labeling of tanks and fill ports to identify tank material and regulated substance compatibility. Both Delaware and Florida have provisions specifically for USTs made of fiberglass-reinforced plastic. In these States, both the tank and the fill cap must be equipped with a label that says: "Non-metallic Underground Tank for Petroleum Products, Alcohols, and Alcohol-Gasoline Mixtures" or "Non-Metallic Underground Tank for Petroleum Products Only".
To aid delivery personnel, some States require fill ports to be labeled with the tank volume and substance stored (for example, color coding for substance type in accordance with API 1637). In this way, delivery personnel are provided with the essential information they need to gauge an UST system accurately and to make the appropriate delivery of regulated substance. The use of such labeling helps prevent overfills and spills.
The Delaware Department of Natural Resources and Environmental Control (DNREC) is drafting standardized methods for recordkeeping. Such standardization will help UST owners and operators to determine what types of information must be documented and in what form they must be recorded. The resulting records should contain useful information that is consistent in quality and presentation. These characteristics are helpful to the implementing agency when trying to determine facility compliance. Maintenance of clear and comprehensive records enhances DNREC's compliance monitoring capabilities.
Release Reporting, Investigation, and Confirmation. Most States require immediate reporting of all suspected or confirmed releases. Hotlines have been established in many States in order to provide a fast, effective way of contacting the emergency response unit. Typically, once a release is reported, State officials advise UST owners as to what actions they must take. In TANKLINE (September 1987), Oregon's newsletter for UST owners and interested parties, a checklist was presented to guide the actions of UST owners in the event of a release. The checklist contains 10 major items, three of which relate to release reporting and investigation, and seven of which pertain to corrective action. The recommended actions relating to release reporting and investigation are: (1) notify the DEQ through the Oregon Accident Response Hotline; (2) determine if there is a fire danger (if so, contact the fire department immediately); and (3) determine the source of the release.
Florida has an innovative approach toward release reporting. The State has instituted an "Early Detection Incentive" program in which the UST owners are required to report any UST releases, but have amnesty from clean-up costs because the remedial actions are financed through a special State trust fund. Petroleum UST owners are eligible provided that (1) they have complied with the notification requirement by October 1, 1988; (2) the UST facility is not owned by the Federal government; (3) State access to the facility for inspection has not been or is not denied; and (4) the State determines that the facility was not operated in a grossly negligent manner. (This last provision gives UST owners an incentive to comply with release detection monitoring requirements.) Once eligible, the owner or operator may choose to have the State perform the cleanup, or perform it himself and receive reimbursement from the State. The number of reports and cleanups this program has motivated is impressive. The newsletter LUSTLINE (published by the New England Interstate Water Pollution Control Commission), reports that as of March 2, 1987, 477 sites had requested State cleanup and an additional 298 sites were being cleaned up by the responsible party and receiving reimbursement from the State.
A different type of incentive for release reporting, abatement, and hazard mitigation has been put forth in Missouri House Bill No. 528. This legislation requires "any person having control over a hazardous substance" who detects a release to notify the State and initiate cleanup. Should this person fail to comply with these requirements, he is not only liable for the associated cleanup cost, he is also liable for punitive damages up to three times the cleanup cost amount. The "any person" language can refer to a transporter making a product delivery as well as the owner or operator of an UST system.
One State requires that any facility where one confirmed UST release has occurred must have all other tanks at that facility inspected within 180 days to determine whether other releases may exist.
Release Response and Corrective Action. Oregon's newsletter, TANKLINE (September 1987), presents a checklist to provide guidance to UST owners and operators in the event of a release. Seven items on this checklist direct owners on how to clean up the release: (1) determine the extent of contamination; (2) if product has moved off your property, notify affected owners; (3) meet with DEQ to set up a cleanup standard and a schedule for the cleanup; (4) write a remedial action plan to achieve the cleanup goals; (5) submit your plan to DEQ for approval; (6) implement your plan and monitor progress; and (7) report to DEQ on your success at meeting cleanup goals. By posting the State requirements in a newsletter that is circulated to the UST community, Oregon is using an innovative approach for informing UST owners and operators of their responsibilities.
In addition to its basic corrective action requirements, Nebraska has developed a detailed set of protocols for determining the need for and the nature of ground water remedial action. A systematic flow chart provides guidance in determining the type and extent of treatment needed. For releases that have or may potentially impact ground water, a detailed site assessment is required that must address the characteristics of the soil, hydrogeology, contaminant, and site (for example, proximity to water supplies and land use) as well as the background water and soil quality or use. A ground-water classification scheme is used to determine the degree of hazard presented and make decisions concerning remedial actions. Based on this assessment, preliminary cleanup levels are defined and remedial actions proposed.
Florida's Department of Environmental Regulation (DER) has developed a set of site cleanup criteria for petroleum contamination. The State has provided criteria for evaluating: (1) the initial remedial action, (2) a Quality Assurance Project Plan for collecting and analyzing samples, (3) a contamination assessment and report, (4) a remedial action plan, (5) the remedial action, and (6) the completion of site rehabilitation. Site Rehabilitation Levels (SRLs) are allowable contaminant concentration limits that must be met before the site cleanup can be deemed complete. The SRLs are based on water quality standards. Alternative or less stringent SRLs may be created if it can be demonstrated that site-specific factors (for example, background contaminant levels) can justify their use.
In order to protect human health and the environment when an immediate threat is perceived, some State agencies swiftly perform corrective action for UST releases even before they are able to identify all the potentially responsible parties (PRPs). States like Maine and New York are able to do this because they have created cleanup trust funds that allow them to incur the cost of cleanup and seek PRP reimbursement later. This type of State trust fund can be an effective tool in mitigating immediate hazards and ensuring environmental restoration.
Out-of-Service UST Systems and Closure. UST owners or operators in South Carolina who have temporarily removed their UST system(s) from service within the past calendar year must submit a report, during January of each year, to the Department of Health and Environmental Control that describes the system's location, capacity, permit number, dates temporarily taken out of operation, and method used to place the system temporarily out of operation. This report helps South Carolina monitor the compliance of these temporarily out-of-service USTs.
For permanent UST closure, some States (FL, MA, and OR) require that the person dismantling and removing the UST system be certified to ensure that permanent UST closures are performed properly and safely by trained professionals. In Maine, the UST owner or operator must notify appropriate State and local agencies and receive written permission from the Maine Department of Environmental Protection (DEP). By requiring notification and written permission, the DEP is aware of planned tank closures and is able to give UST owners guidance, when necessary, to ensure that appropriate procedures are used to close the UST system. In Rhode Island, owners and operators are required to obtain a certificate of closure. In this way, the State can ensure that site assessments for past and present releases are performed, and any necessary corrective actions implemented. The potential dangers associated with UST closure should not be underestimated. To prevent mishaps, the use of good closure practices is absolutely necessary. The approaches described above also help States ensure that the UST closure is performed safely and properly.
New Jersey's proposed regulations suggest another method of ensuring that closures are performed safely and properly. Owners or operators in New Jersey who plan to close their UST systems must submit a closure plan to the Department of Environmental Protection (DEP) 60 days before the anticipated closure date. This plan consists of a site assessment that incorporates the following information: (1) three consecutive months of monitoring data from a DEP-approved external monitoring system; or (2) a work plan for conducting soil sampling and analysis. This work plan must provide: (1) the number and location of soil samples; (2) soil sampling procedures (for which the DEP provides some guidance) and analysis protocols that must be in accordance with DEP-approved methods; (3) a plot plan clearly indicating all major structures, including the tank itself (in use and closed), piping, dispensers and other equipment; (4) a health and safety plan (may be required); (5) an implementation schedule; and (6) a plan showing the installation of monitoring wells (may be required). Based on the substance stored, the DEP provides guidance as to what constituents must be looked for in the soil samples. The owner or operator is required to implement the closure plan within 30 days after obtaining all necessary Federal, State, and/or local approvals.
An essential part of permanent UST closure by removal is disposal of tanks and any end products derived from tank cleaning. Massachusetts has an innovative approach to address these matters. It requires USTs that are undergoing removal to be emptied of stored product, purged of vapors, and taken to a licensed or permitted tank dismantling yard. At the tank yard, the UST must be logged in, cleaned of residue, and dismantled. The cleaning end product must be treated as hazardous waste and removed by a hazardous waste or waste oil transporter licensed by the Department of Environmental Quality Engineering.
Maine makes provisions in the regulations for the proper disposal of sludge and scale, as well as for recycling and disposal of USTs. Furthermore, Maine mandates that the tank owner have a notice regarding permanent UST abandonment attached to the property deed. Although such a requirement is not needed for State program approval, this mechanism ensures that future property owners will be informed about the tank's presence on their property. In California, UST owners or operators choosing to close their USTs in place are also required to place a notice on the property deed, describing the location in detail of the closed UST, the regulated substance it contained and the closure method.