56 FR 55066-55069 Monday, Aug. 5, 1991 40 CFR Part 280 Underground Storage Tanks; Technical Requirements
40 CFR Part 280 Underground Storage Tanks; Technical Requirements AGENCY: Environmental Protection Agency. ACTION: Final rule.
SUMMARY: This document by the Environmental Protection Agency finalizes a technical amendment to the underground storage tank regulations. The Agency is adding to overfill design standards that require the use of overfill prevention equipment by allowing alternative uses of equipment located closer to the tops of larger tanks if it can be done in a manner that achieves certain minimum levels of performance. This technical amendment is issued to complete EPA's response to a petition for rulemaking. Effective Date: [insert date 30 days after date of publication in the Federal Register].
FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline at (800) 424-9346 (toll free) or 382-3000 (in Washington, DC).
On September 23, 1988 (53 FR 37082) EPA promulgated technical requirements under subtitle I of the Resource Conservation and Recovery Act (RCRA) for underground storage tanks containing petroleum or substances defined as hazardous under the Comprehensive Response, Compensation, and Liability Act of 1980 (CERCLA), except for substances regulated as hazardous waste under subtitle C of RCRA. Those rules went into effect 90 days later an December 22, 1988. Today's document finalizes a technical addition to Section 280.20 of those final regulations where they address design requirements for overfill prevention equipment.
In a letter dated December 8, 1988, the American Petroleum Institute submitted a petition under section 7004(a) of RCRA requesting technical amendments to the final regulations. On April 27, 1990 the Agency published its decision to deny the petition for rulemakinq in 5 issue areas (55 FR 17763). On that date the Agency also proposed to grant the petitioner's request in one technical issue area, and accordingly solicited public comment on a proposed technical amendment to the regulations in the design requirements for overfill equipment (55 FR 17767). In sum, the issue raised by API was whether or not the Agency should allow alternative environmentally protective ways for locating overfill prevention equipment on new and existing tanks not allowed under the final rules: particularly by allowing the use of some equipment located closer to the top of larger tanks (those greater than 4,000 gallons). EPA proposed to add a performance standard to the spill and overfill requirements in Section 280.20 (c) (1) (ii) to address these technical questions.
Today, the Agency is finalizing the proposed performance standard to enable the use of numerous types of overfill equipment closer to the tops of larger tanks, as long as the equipment achieves the minimum standards of performance required to prevent overfills.
II. Amendment of Spill and Overfill Prevention Requirements (Section 280.20 (c) (1) (ii) (C))
Overfilling UST systems is a common source of petroleum and hazardous substance USTs releases onto the surface of the ground. EPA studies have found that UST owners and operators without overfill prevention equipment on their USTs often inadvertently force product into the environment through tank bung holes, vent lines, or fill ports when the volume of liquid delivered exceeds the tank's storage capacity. Sections 280.20 (c) and 280.30 of the final regulations provide requirements for spill and overfill prevention that mandate UST owners and operators use prevention equipment as well as follow procedures for preventing spillage and overfills into the environment during each tank in-filling operation. More specifically, section 280.20 (c) (1) (ii) of the existing rules requires that owners and operators prevent overfills by installing equipment with a design that will either: (1) alert the transfer operator when the tank is no more than 90 percent full by restricting the flow into the tank or triggering an alarm, or (2) automatically shut off flow into the tank when the tank is no more than 95 percent full.
On December 8,1988, the American Petroleum Institute submitted a rulemaking petition requesting, in part, that EPA review and change the technical requirements for overfill prevention equipment. This petition identified a technical oversight in an assumption used to develop the rule's final design standards for where to locate overfill prevention equipment at the top of tanks, particularly as they are applied to larger tanks. In calculating the percent of tank capacity at which flow restrictors, alarms, or shut off devices should be triggered (see previous paragraph above), the final design standard was based on an assumed average tank size of 4,000 gallons. As pointed out by API in its petition, new tank sizes are likely to increase over time, particularly in the retail motor fuel sector. Therefore, under the design standard alternatives allowed under the existing regulation, the maximum tank capacity of larger tanks (i.e., 10,000 gallons) is needlessly restricted from the standpoint of protecting the environment For example, under the existing rules, a 10,000 gallon tank equipped with a flow restrictor overfill prevention device can be filled only to 90% capacity (and necessitates 1000 gallon of ullage be left in the tank) to enable the operator sufficient time to respond and safely prevent an overfill by shutting off the delivery after the on-set of the flow restrictor. In response to the petition, EPA proposed performance criteria for what constitutes a safe response time (see 55 FR l7767) using various types of equipment, and the Agency requested public comments on whether such additional standards allowing larger tanks to be filled to a much higher capacity would still be protective of human health and the environment.
The April 27, 1990 proposal consisted of an additional set of performance standards that could be used as another alternative to the existing overfill prevention design standards. The proposed overfill performance standards would allow use of equipment capable of:
Restricting flow 30 minutes prior to overfill, Alerting the operator with a high level alarm one minute before overfilling, or Automatically shutting off flow into the tank so that none of the fittings located on top of the tank are exposed to product due to overfilling.
The Agency chose these alternative performance criteria to present the minimum response times necessary to prevent overfills with the major types of available equipment and thereby protect human health and the environment. The proposed performance standards were intended to enable the location of the different types of overfill equipment sometimes even closer to the tops of the larger tanks, as long as the use of the equipment achieves one of these proposed minimum levels of performance.
EPA received public comments concerning these proposed alternative performance standards. Some specific technical concerns received on the overfill performance criteria included such items as the potential for spillage from larger tanks that may be tilted, and the insufficient time a one-minute alarm allows for the operator to shut off the inflow of product before it reaches the top of the tank. All these technical issues addressed by the commenters were previously raised and considered when devising the existing overfill design standards promulgated September 23, 1988. Because the Agency did not solicit more comment on these technical questions (such as the adequacy of flow restrictor methods of overfill prevention), they were not considered in finalizing today's amendment. No new evidence or data were provided by commenters that called into question the basic design assumptions used by the Agency to guide the development of the overfill equipment standards.
One commenter believed the performance standard for flow restrictors was unnecessarily strict because the requirement to begin flow restriction 30 minutes prior to overfilling would unduly add time and expense to a delivery. EPA does not agree and believes the commenter does not understand the intent and effect of this rule. The requirement for a flow restrictor (or some other type of equipment) is intended to simply serve as a warning device to the operator that the filling process is to stop and the remaining product in the delivery hose should be emptied into the tank. The equipment is not intended to alert the deliverers that it will take 30 minutes longer to completely fill the remaining ullage. The requirement grants a deliverer using flow restrictor equipment 30 minutes longer reaction time as a margin of safety. Within this 30 minute period, the delivery process must cease in order to prevent overfills.
EPA agrees with those commenters who support the proposed performance standards as an environmentally protective option for spill and overfill requirements. Several commenters recognized that adopting a time-based performance standard for overfill equipment provides the advantages of more efficient utilization of tank capacities. For example, some commenters identified that fuller use of tanks decreases petroleum product transportation and associated delivery hazards (i.e., spillage through hose connections and disconnections), thereby increasing efficient supply to the American consumer. They also pointed out that time-based performance standards also eliminate various expenditures, including those associated with more frequent deliveries, installation of otherwise unnecessarily larger-sized tanks to compensate for the excessive ullage requirement, and retrofitting tanks with alternative overfill protection systems.
EPA expects that the existing overfill design standards will continue to be the requirement of choice by owners and operators of tanks smaller than 4,000 gallons. However, today's added performance standard alternatives address the petitioner's concerns that the September 23, 1988 regulation in several cases unnecessarily reduced maximum tank storage capacity for larger tanks, and will allow additional options for owners and operators, and equipment providers. EPA has concluded that today's amendment provides some additional flexibility in the use of overfill equipment with no reduction in protection of human health and the environment. The full comment response document is available in the UST Docket. Call (202) 475-9720 to make an appointment with the docket clerk.
III. Economic and Regulatory Impacts
A. Regulatory and Impact Analysis
Under Executive Order 12291, EPA must judge whether a regulation is "major" and therefore subject to the requirement of a Regulatory Impact Analysis. Since this amendment simply increases the regulated community's flexibility of implementation by adding some equally protective minimum performance standard alternatives to the existing overfill design standards, the amendment does not require a Regulatory Impact Analysis.
This document was submitted to the Office of Management and Budget for review as required by Executive Order 12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the Agency to prepare and make available for public comment a regulatory flexibility analysis that describes the impact of a proposed or final rule on small entities (i.e., small businesses, small organizations and small governmental jurisdictions). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have significant impact on a substantial number of small entities. EPA believes that this rule will not have a significant economic impact on a substantial number of small entities. The rule will provide additional flexibility in complying with the standards for preventing the overfilling of USTs. Accordingly, the Agency has concluded that the law does not require a Regulatory Flexibility Analysis and certifies that this rule will not have a significant economic impact on a substantial number of small entities.
C. Federalism Assessment
Executive Order 12612 requires the Agency to perform a federalism assessment on proposed and final rules. The Executive Order specifies that Federal agencies should refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when there is a clear constitutional authority and the presence of a problem of national scope. The Executive Order provides for a preemption of State law only if there is a clear Congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.
The Agency has revised today's rule and concluded that a federalism assessment as defined by Executive Order 12612, is not required. Today's rule merely adds another option for meeting the Federal overfill prevention standards; the overfill protection objective for State programs approval has not changed.
D. Paperwork Reduction Act
This final rule contains no new information collection requirements and thus will not increase the paperwork burden on the regulated community in contravention of the purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 280
Hazardous materials, Petroleum, Underground storage tanks.
Dated: August 5, 1991
William K. Reilly,