53 FR 37082-37247 Friday, Sept. 23, 1988 40 CFR Parts 280 and 281, Underground Storage Tanks; Technical Requirements and State Program Approval; Final Rules--Preamble Section IV. Analysis of Today's Rule--C. General Operating Requirements
IV. ANALYSIS OF TODAY'S RULE
C. General Operating Requirements
1. Spill and Overfill Prevention and Control (§§ 280.20 and 280.30)
a. Introduction. The surface spills and overfills that occur at UST systems are usually the result of human error, not equipment failure. There are two major types of surface releases: (1) Spilling, which results from improper dispensing practices such as disconnecting the delivery hose from the tank's fill pipe before the hose has drained completely, and (2) overfilling, which occurs when the tank liquid level exceeds tank capacity and product escapes through tank bung holes, vent lines, or fill ports. Spills and overfills occur on a relatively frequent basis; however, they are usually not reported because they are typically small in volume--less than 25 gallons--and can be easily contained and cleaned up.
Basically, the proposal required owners and operators to follow procedures and provide equipment to prevent these releases or to immediately contain and clean them up. In the proposed rule, proper transfer procedures had to be followed during all deliveries. For new UST systems, the Agency proposed the installation of alarms in conjunction with liquid level sensors, automatic shutoff devices that halt further delivery of product into the UST at a predetermined level, or the installation of catchment basins to contain overfills or spills (e.g., product left in delivery hoses at the time of disconnect). EPA also proposed requiring the immediate installation of spill and overfill equipment on any UST system that used external leak detection devices. Existing UST systems not using external leak detection devices were allowed up to 10 years to come into compliance with the proposed requirements for spill and overfill equipment.
In the Agency's study of the causes of releases from UST systems completed since proposal, many people contacted and interviewed in the field ranked spills and overfills as the most frequent cause of release rather than the distant third identified in the preamble to the proposal (52 FR 12667). For example, spills and overfills are reported in Dade County, Florida, to be the leading cause of release from UST systems. Experienced installation contractors reported that they repeatedly and frequently observe various indicators of spill and overfill problems, such as discolored soil above and around the tank and the dissolving of the tank's bituminous coating below the drop tube connection to the tank fill opening. Field observations also implicated nonoperational components such as bung hole plugs and vent lines as a frequent cause of release in overfills. In addition, most experienced hands in the field felt that spills and overfills were two separate problems that must be addressed separately.
Based upon public comments and new findings on causes of product release, the Agency has made several changes in today's final rule for spills and overfills: the rule has been reorganized to address apparent confusion voiced by commenters concerning the presentation of requirements for new and existing USTs; an exemption from equipment requirements is provided for UST systems filled with small volume delivery of no more than 25 gallons; and the physical presence of an attendant is not required during the filling of the UST system as long as the transfer operation is otherwise monitored by mechanical or electronic means. Although EPA recognizes that the owner and operator may, through private agreement, ensure that ultimate responsibility for the exercise of proper delivery techniques is borne by the transport carrier, the final rule still holds the owner and operator responsible for preventing damages to human health and the environment due to spills because the Agency does not have jurisdiction over transport carriers.
The specific spill and overfill equipment requirements of the final rule are discussed below. These requirements apply to all new UST systems as of the effective date of this rulemaking, and existing UST systems must meet the requirements within 10 years of that effective date (see section IV.C.1.e. below). In addition, general operating procedures for spill and overfill control are applicable to both new and existing UST systems as of the effective date of the rule (see section IV.C.1.f. below).
b. Spill Prevention (§ 280.20(c)(1)(i)). The Agency has concluded that repeated spills can frequently cause significant environmental damage. Although most surface spills are small in volume, because they are often repeated they can eventually contaminate soil and ground water. Thus, the final rule requires use of spill prevention equipment (such as a small catchment basin around the fill port) at all new and existing UST systems. Catchment basins are the most prevalent form of spill prevention used today.
The proposed rule specified that when catchment basins were used they would be large enough to contain the volume of the hose. In response, several commenters objected to EPA relying on this larger sized catchment basin technology because of concerns about the potential fire or explosion hazard resulting from the buildup of petroleum fumes in the catchment basin area, the cracking of catchment basins due to freezing of accumulated water, or the potential that these containment devices would provide the deliverer with a false sense of security that would prompt carelessness during delivery. However, no commenters provided any data to EPA that indicated the occurrence of any fires or explosions due to vaporization of product in a basin, regardless of its size. In any event, EPA believes that compliance with the proper transfer procedures required in § 280.30(a) will prevent fuel from frequently collecting in the basins, and normal maintenance suggested by the equipment manufacturer will prevent water from accumulating and freezing. Several commenters said that small spill catchment basins are preferred in many circumstances. They also said that if overfill prevention equipment is also used, the problem of emptying a full transfer hose should rarely be encountered. Overfill prevention devices currently available in the United States either allow the transfer hose to drain at a very slow rate into the tank or can be manually overridden to empty the hose contents into the tank. As a consequence, today's final rule deletes the proposed size specification for spill catchment basins, thus leaving the determination of the appropriate volume to the discretion of the owner and operator. The design or size of the catchment basin (combined with the type of overfill prevention equipment also being required today) should be of sufficient size to contain spills and prevent releases to the environment. For example, if the catchment basin has a means for releasing its contents into the tank or another containment structure in order to provide more room in the catchment basin, a smaller volume catchment basin (e.g., the standard 5-gallon size) should be adequate equipment for preventing spills. Catchment basins without any means for drainage and requiring manual unloading may need to be of larger volume.
For those concerned that the use of catchment basins of any size or type may present a safety hazard, EPA allows use of alternative devices to prevent spills if they are approved by the implementing agency as preventing spills in a manner that is no less stringent in protecting human health and the environment. For example, a device that would prevent release from the transfer hose when detached from the fill pipe, such as a dry disconnect coupling, could satisfy this requirement. This provision is intended to provide flexibility in a rapidly developing technological area that will allow continued development of new and improved spill prevention equipment.
c. Overfill Prevention (§ 280.20(c)(l)(ii)). Agency data show that overfill prevention is also very important, not just for the prevention of large overfills released from the top of vent or fill lines, but also overfills that slowly leak out from the fittings at the top of the overfilled tank, such as the bung connections. In today's final rule, therefore, all new UST systems are also required to use overfill prevention equipment.
All new UST systems must be equipped with overfill protection by installing one or more of the following:
o A device that will alert the transfer operator when the tank is no more than 90 percent full by restricting the flow into the tank or triggering a high-level alarm;
o A device that will automatically shut off flow into the tank when the tank is no more than 95 percent full; or
o An equivalent device approved by the implementing agency.
These alternatives are essentially the same as those presented in the proposed rule except for the clarification that flow restrictors (i.e., ball float valves) are also allowed. Although not specifically mentioned in the proposed rule, several commenters felt that flow restrictors were adequate for spill and overfill prevention and are the most widely used method at present. Flow restrictors do not shut off inflow completely but instead significantly reduce the rate at which product enters the tank. The transporter can tell when the flow is reduced and stop delivery. Some commenters emphasized that many USTs are already using flow restrictors successfully. Upon review of these devices, the Agency has concluded that the flow restrictors are protective of human health and the environment, particularly if they are coupled with the requirement of § 280.30 that all transfers be closely monitored. The final rule allows the use of flow restrictors for overfill prevention.
EPA is concerned, however, that this type of overfill prevention may jeopardize the integrity of the tank if a pressurized product delivery system is used. Pressurized transfer of up to 30 psi is sometimes used with heavier fuels. Most tanks can safely withstand pressures of only 5 psi, and flow restrictors may allow a much higher pressure to develop during pressurized delivery, causing tanks to rupture. The Agency has no information to indicate that such failures are common. Almost all of the UST systems addressed in today's rule are not filled by pressurized delivery. The delivery hose connection for this type of delivery usually includes a back-pressure sensor that automatically disconnects the hose if pressure develops in the tank.
EPA has decided that if an owner and operator uses either a high-level alarm or a flow restrictor, the devices must be activated at 90 percent of tank capacity. In the proposal, the high-level alarms were required to be activated at 95 percent of tank capacity. EPA has decided on the stricter standard for both of these devices because neither device is a total shutoff device. Also, both devices are subject to the operator's response to terminate the transfer.
Automatic shutoff devices do not require operator action to prevent overfills. Automatic shutoff devices prevent overfilling by automatically shutting off flow at the fill pipe before the tank fills up to the top. Already in widespread use in Europe, this approach is designed to completely eliminate overfills due to human error. The Agency believes this is the simplest type of overfill device for new and existing UST systems installing overfill prevention equipment. Inexpensive shutoff devices that are easy to install have recently become available to the U.S. market, with the potential for additional innovative technology to enter the market soon. Those who wish to use an overfill prevention device other than those mentioned in the rule may satisfy the overfill prevention requirement with use of alternative devices approved by the implementing agency as being no less stringent in protecting human health and the environment.
d. Exemptions (§ 280.20(c)(2)). Several commenters pointed out that infrequently filled UST systems pose less risk of releases from spilling and overfilling than systems filled on a more regular basis and, therefore, should be exempt from spill and overfill prevention equipment requirements. Other commenters suggested that UST systems filled manually in small increments, such as most used oil tanks, pose significantly less risk than those receiving large-volume deliveries.
The Agency is continuing to require spill and overfill prevention equipment on infrequently filled tanks in the final rule. Though a tank may be filled only occasionally, it is the potential size of overfills that concerns EPA. Although infrequent filling reduces the likelihood of a spill or an overfill release somewhat, it does not guarantee that a spill or an overfill that does occur would be of small quantity. In addition, EPA feels that in the future, as today's requirements are implemented, carriers of product may become accustomed to (and dependent on) devices such as high-level alarms or shutoff devices and would, therefore, be less attentive during product delivery due to reliance on prevention equipment to indicate completion of the delivery. Finally, the implementing agency would often be unable to determine the actual filling frequency for purposes of determining whether a particular UST system should be exempt from spill and overfill requirements, creating compliance monitoring difficulties. Consequently, the Agency has retained the required use of spill and overfill prevention equipment for infrequently filled tanks.
The final rule does not, however, require new UST systems filled through transfers of no more than 25 gallons to use spill or overfill prevention equipment (§ 280.20). The 25-gallon limit was selected because the Agency understands it is a common industry practice at automotive service centers to use containers up to this volume for handling used oil prior to putting it into the UST. EPA has concluded that the likelihood of overfilling the tank is small because the volume of the transfer is much smaller than the volume of the tank. In addition, the maximum size of the spill or overfill that could occur from a 25 gallon transfer is 25 gallons. This quantity is easier to contain and clean up than the maximum size spill or overfill that could occur from a transfer of several thousand gallons. EPA has concluded that proper operating practices and procedures (required under § 280.30), such as checking the available tank volume before each transfer, will adequately protect human health and the environment.
e. Compliance Schedule for Initial Spill and Overfill Equipment (§§ 280.20 and 280.21). In the proposal, the schedule for compliance required use of spill and overfill prevention equipment at the time of installation of all new UST systems. All existing UST systems must be upgraded within 10 years of the effective date of the final regulations. EPA has retained this 10-year requirement as an adequate period of time to retrofit existing UST systems.
EPA has deleted the proposed requirement to partially phase in the use of spill and overfill equipment whenever any external method of detection is installed at an existing tank. Some commenters expressed confusion about when such equipment would have to be retrofitted to tanks that already have installed external monitoring methods. EPA agrees that mandating this phase-in approach does present such implementation problems and unnecessarily hinders owner and operator flexibility in selecting their own schedule for compliance within the 10-year deadline. This proposed approach could unduly discourage the use of external methods of detection. Furthermore, research completed by EPA after proposal (and made available for public comment on March 31, 1988) has convinced the Agency that spills and overfills do not pose insurmountable problems to the use of external methods of detection that require the immediate retrofit of spill and overfill equipment.
As suggested by commenters, EPA considered requiring retrofitting spill and overfill prevention devices earlier, for example, at the time of installation of all release detection equipment or during a scheduled general system upgrade. The Agency decided against such earlier deadlines primarily due to the implementation difficulties this would pose. EPA believes that the limited population of installers precludes the rapid installation of spill and overfill controls at all of the UST sites nationwide. Although EPA has decided to retain the 10-year time period, the Agency expects that many tank owners and operators will retrofit these devices in less than 10 years even though it is not mandatory to do so. In many cases, retrofit of spill and overfill equipment at the time of release detection retrofit or of corrosion protection upgrading will be more cost effective. Finally, the less stringent release detection requirements that are allowed in today's final rules for fully upgraded tanks will actually provide an incentive to initiate earlier retrofitting to meet spill and overfill prevention requirements. The discussion of release detection requirements for upgraded tanks is provided in section V.D. of today's preamble.
f. General Operating Procedures for Spill and Overfill Control (§ 280.30). In addition to installation of release prevention equipment, the Agency has retained in the final rule the general operating procedures for both new and existing UST systems that were proposed to prevent spills and overfills.
Proposed § 280.30(a) stated that the owner and operator must ensure that releases do not occur and must be physically present to observe the transfer of product. Many commenters suggested that the driver of the delivery vehicle should be held responsible for any releases during delivery, and that having someone physically present who represents the owner and operator during all deliveries is impractical and costly. Although EPA agrees that responsible carriers are the primary agents in the field to prevent spills and overfills, for the purpose of complying with today's requirements, the UST system owner and operator is responsible for preventing spills and overfills. The Agency must take this approach because it has no legal authority to regulate transporters under Subtitle I. Thus, regardless of whether the owner and operator decides to share (by contract) responsibility for the monitoring of the transfer with the carrier, under today's final regulations the owner and operator will continue to be responsible in the event that there is a release during delivery. See section IV.E.2.d. of the preamble and § 280.53 of the final rule for the requirements of owners and operators in the event of a spill or overfill.
The proposed rule required that a person be physically present at all times during the transfer of product to be able to respond quickly to a spill or overfill (proposed § 280.30). Some commenters suggested, however, that many UST systems are in large tank farms where it would not be feasible or economical (especially during multiple filling operations) to have someone present at each tank during the time it was being filled. In response to these suggestions, EPA is changing this requirement in the final rule to simply require that all deliveries be monitored constantly. This change allows for a person at the site (but not necessarily at the transfer point) to monitor a transfer using remote sensing equipment that can prevent a spill or an overfill from occurring. This change will continue to meet the intent of the proposed requirement, that delivery be monitored, and will also accommodate operations encountered at large tank farms where it is difficult for a person to be at every tank. Many of these installations have central monitoring stations where all the tanks can be supervised through remote control monitoring and shutoff equipment.
2. Operation and Maintenance of Corrosion Protection (§ 280.31)
As discussed in the preamble to the April 17 proposal (52 FR 12666-12667), corrosion was found to be one of the common causes of release in existing underground tank and piping systems that are unprotected from corrosion. The consensus of experts in the field contacted by EPA indicates that the installation and proper operation and maintenance of corrosion protection systems can significantly reduce the incidence or volume of release due to corrosion. Officials in Ontario, Canada, Denmark, and Sweden have cited the success of such corrosion protection programs initiated in their respective countries during the early to mid-1970s. The proposed rule addressed operation and maintenance of corrosion protection systems in § 280.31 (see preamble discussion in 52 FR 12707).
a. Extent of Corrosion Protection (§ 280.31(a)). EPA proposed in § 280.31(a) that all corrosion protection systems must be operated and maintained to continuously provide corrosion protection to buried metal components of the UST system. Public comments on proposed § 280.31 supported the necessity of routine maintenance of the corrosion protection systems by qualified field personnel.
The Agency also invited comments on which components, if any, should be cathodically protected; whether there are noncorrodible metal alternatives for that component; and what form of corrosion protection is appropriate if cathodic protection is not required (52 FR 12707). Many comments were received in this area. In summary, some commenters suggested that all corrosion-protected metal components of UST systems, including swing joints, flexible connectors, and riser connections, should be monitored regularly. Other commenters suggested that some components, such as bung plugs and the pump housing, do not need cathodic protection and maintenance. (As discussed in more detail earlier in this preamble in the section on new piping design and construction requirements (section IV.B.1.b.(2).) In the final rule, EPA requires protection of delivery piping and that portion of the tank routinely storing regulated substances. Requirements for spill and overfill equipment and practices will prevent releases from the top of the tank and vent piping.
EPA agrees with commenters who found it unnecessary to require protection for portions of the system that would not regularly contain product or are not in contact with the soil, even if situated underground. Bung plugs are inserted into unused openings at the top of a tank and are not subject to releases except in the event of overfills. Delivery piping is defined as that portion of the UST system piping through which product is introduced into the tank or delivered from the tank. Cathodic protection is not required for the fill pipes of tanks that have a drop tube because the drop tube is the part of the tank that routinely contains product. The drop tube is not in contact with the soil and thus does not require cathodic protection. Vent piping is not used for delivery of product and presents a minimum risk for release to the environment. In fact, vent piping would be a potential release source only in the event of overfill conditions. The release potential from bung plugs and vent piping will be eliminated or substantially reduced by the requirements for overfill prevention equipment required in § 280.30 of today's rule and, therefore, the Agency has not required their cathodic protection in today's rule.
Pump housings, when contained in the equipment manway at the top of a tank, do not come in contact with the soil and thus do not require cathodic protection. Other pump housings are often isolated from the soil by being submersed in the product in the tank or situated in the dispenser housing above grade and, therefore, do not require cathodic protection. Only those pump housings that are in contact with the ground and potentially contain product require cathodic protection.
b. Qualifications for Corrosion Personnel (§ 280.31(b)). EPA proposed in § 280.31(b) that all cathodic protection systems be inspected and designed by an "independent" corrosion expert. Most of the comments received by EPA in this area strongly opposed the requirement of an "independent" corrosion expert. EPA agrees that the proposed requirement for the independence of the expert is not needed and has deleted this term from the final rule. (See section IV.B.1.a.(2) above for a discussion of this issue.)
Other commenters pointed out that the maintenance, operation, and inspection of an installed cathodic protection system could be performed by people who have much less training than a corrosion expert. EPA agrees with these comments, recognizing that most of these inspections are now being conducted by trained specialists. Thus, EPA has replaced the term "independent corrosion expert" with "qualified cathodic protection tester" in the final rule. Cathodic protection testers must be able to demonstrate education and experience in the measurement of cathodic protection of buried or submerged metal piping systems and metal tanks. A definition to this effect has been added to the final rule. The National Association of Corrosion Engineers (NACE) has developed an examination that can be used to ensure that cathodic protection testers are qualified.
c. Inspection Schedule (§§ 280.31(b) and (c)). EPA proposed a minimum inspection schedule for cathodic protection systems in § 280.31(b). For field-installed cathodic protection systems, the proposal required that the system be tested within 6 months of installation and at least annually thereafter. For factory-installed cathodic protection systems, it was proposed that each system should be tested within 6 months of installation and at least every 5 years thereafter. For all impressed current systems, the proposed requirement was inspection and/or testing as appropriate, and at least annually. The Agency invited comments on the advantages and disadvantages of allowing less frequent inspections/testings for those tanks that are equipped with premanufactured corrosion protection (52 FR 12707).
Several comments were received in these areas. Some commenters felt that the proposed testing requirements for field installation were excessive and that there is no technical reason to differentiate between field- and factory-installed systems. After consultation with groups of industry experts during the public comment period, EPA now agrees with the commenters who recommended that all cathodic protection systems should be tested at the same frequency and the Agency is now requiring in the final rule that all cathodic protection systems be tested within 6 months of installation and at least every 3 years thereafter. These intervals are sufficient to detect any damage or failure of the system and to take remedial action in time to prevent structural failures due to corrosion. EPA understands that this time interval is consistent with sound practice as is now recommended in the recently revised NACE code and by major tank manufacturers.
EPA proposed in § 280.31(c) that all UST systems with impressed current cathodic protection systems must be inspected every 60 days to ensure that the equipment is running properly. This equipment inspection is required in addition to the testing of the cathodic protection. EPA has received many comments on this section. Several commenters supported the proposed approach, with some further suggesting that impressed current systems must be inspected six times a year with intervals not exceeding 75 days. Some commenters suggested monthly inspection of all systems while others suggested immediate testing after installation for all impressed current systems and annually thereafter. No commenters stated that periodic testing of an impressed current system should not be required.
EPA agrees with the commenters who said that inspection at 60-day intervals is protective of human health and the environment because loss of power to the anodes for 60 days is very unlikely to result in corrosion failure. Thus, the proposed inspection approach has been retained in the final rule. This inspection is conducted to simply ensure that the equipment is running properly and is relatively straightforward for most impressed current systems. Most of these systems include a light on the control panel that indicates proper operation. No special training is required to perform this inspection.
d. Recordkeeping (§ 280.31(d)). EPA proposed in § 280.31(d) that records documenting the proper operation of corrosion protection systems must be maintained. EPA requested comments on this proposed requirement, and none were received. The Agency has made slight changes in the wording of this requirement to make the intent of the final requirement clear. This minor change does not change the substance of the proposed requirement. The records that are maintained must provide the results of testing from the last two service checks required in § 280.31(b) (which must be performed by a corrosion protection tester) and the last three inspections required under § 280.31(c) (which can be performed by the owner and operator). EPA believes that this record will provide sufficient information to demonstrate that the proper operation and maintenance of the cathodic protection system is being carried out.
e. General Performance Standards for Testing. Section 280.31(e) also proposed three criteria to be used while testing cathodic protection systems. EPA received several comments regarding this approach, with most of them suggesting that EPA should include all of the five criteria as defined in NACE RP-02-85. Based on the suggestions of these commenters, EPA now believes that industry codes, such as NACE RP-02-85 and API's "Guide for Inspection of Refinery Equipment," developed by nationally recognized associations provide clearer and more complete guidance about the use of these criteria to determine the adequacy of cathodic protection. These criteria are also better explained in technical documents such as these industry codes. In addition, these criteria are subject to continued review and can be revised to reflect new measurement techniques that result from increased understanding of corrosion phenomena.
Accordingly, § 280.31(e) has been deleted, and there is no explicit listing of the three criteria from the proposed rule. The proposed criteria have been replaced with a more general performance standard (in § 280.31(b)) that requires the service checks be performed in accordance with a nationally accepted code of practice. This approach accommodates the concerns of the commenters who recommended that all five of the NACE criteria should be allowed to be considered. At the same time, this approach encourages the application of the proper standard because these national codes are presented within the context of significant technical guidance as to the proper use of each criteria. Thus, in the final rule, owners and operators are being held to the use of at least these criteria as recommended in these national codes.
f. Notification Requirement. EPA proposed in § 280.31(f) that owners and operators of new UST systems must certify compliance with the corrosion protection requirements on the notification form submitted pursuant to § 280.22. No comments were received by EPA on this requirement. In the final rule, this section has been moved for clarity to § 280.22(e), which identifies notification requirements.
3. Inspection and Maintenance of the Tank System
In the preamble to the proposed regulation, the Agency discussed three alternatives for the required maintenance and inspection of the tank system (52 FR 12707). EPA proposed requirements for the maintenance and inspection of corrosion protection systems and requested comments and information on the need for broader requirements. Two alternatives were described that addressed the maintenance and inspection of the entire site or other tank system equipment in addition to the corrosion protection system.
a. Site or System Inspections. Many comments were received by EPA on these alternative inspection requirements. Some commenters felt that inspection of the entire site or of the tank system is of little practical benefit and unnecessary because such an inspection alternative would be duplicative of the leak detection requirements. One commenter suggested conducting inspections of the entire UST site.
EPA agrees with commenters who stated that site inspection is duplicative of leak detection. Institution of release detection systems should provide effective warning of releases from most of the components of the tank system, thereby eliminating the need to require the general inspections. Also, the majority of USTs are completely underground and inaccessible to inspection, rendering total system inspection impractical.
b. Inspections for Tank Deflection. Small distortions of the tank diameter are expected at the installation of USTs, and the tanks are designed with an allowance to withstand them. Improper backfill or failure to install foundation anchors (or failure of the anchoring system) can lead, however, to excessive distortion resulting in rupture of the tank. One way to verify this distortion is by measuring tank deflection (variation from true diameter). EPA had requested comments on periodic tank deflection measurements for steel or FRP tanks as a means of preventing tank failures. Many comments were received by EPA on this inspection method. Some requested EPA to mandate periodic deflection monitoring for FRP tanks in the final rule. Others stated the view that FRP tanks do not require periodic deflection monitoring because virtually all deflection ceases after the first year. Some also recommended vertical diameter measurements for all new tanks to verify initial installation results.
The Agency disagrees with commenters who suggested periodic tank deflection monitoring for FRP tanks. The low incidence of failure in FRP tanks (less than 0.5 percent), which has been declining substantially over the last 10 years, argues against the need for periodic deflection measurements. The Agency has, therefore, chosen not to mandate periodic deflection measurement in the final rule. The Agency believes that excessive deflection in FRP tanks is usually due to improper installation and occurs soon after the installation is complete. Deflection measurements during and immediately following installation are required by the tank manufacturers for purposes of warranty validation. EPA believes that these are sufficient for the protection of human health and the environment.
In addition, investigators conducting a study of deflection monitoring of FRP tanks in Suffolk County (New York) have reported to EPA that the deflection measurement is often difficult to obtain unless special provisions are made for taking this measurement when the tank is installed. Special tools and training are required to prevent damage to the fill pipe tank seal (53 FR 10403) when obtaining access to the tank for conducting the test.
c. Monitoring Corrosion Protection at Composite Tanks. The Agency had also requested comments on requiring corrosion protection inspections for composite tanks. Some commenters stated that composite tanks should be monitored to ensure the integrity of the FRP coating, using the same criteria used for the cathodic protection inspections. Others felt that inspections of composite tanks are unnecessary after installation. The Agency disagrees with the commenters who recommended that composite tanks be periodically monitored to ensure the integrity of the FRP coating. It has been reported to EPA that most composite tanks pass when tested through the measurement of electrical continuity between some structure of the tank and the soil; however, the tanks that have "failed" this test showed no evidence of external corrosion once they were excavated and inspected. This is a point of continuing controversy within the National Association of Corrosion Engineers. Based on the superior performance of composite tanks to date (no documented failures due to external corrosion), EPA has decided not to mandate the corrosion protection monitoring of composite tanks in the final rule.
4. Compatibility (§ 280.32)
In the proposed rule, EPA set forth a general performance standard requiring owners and operators to use an UST system made of or lined with materials compatible with its stored substances. Incompatibility could result in the structural deterioration of the containment vessel or piping and cause releases into the environment (see 52 FR 12708-12710). Because EPA has found no significant evidence that incompatibility is a cause of release from USTs, the final rule contains no additional requirements and thus remains the same as proposed.
a. Compatibility of FRP Tanks with Alcohol-Blended Fuels. Since the proposal appeared, EPA sought additional information on problems reportedly caused by incompatibility of FRP tanks and alcohol-blended fuels. This search included conversations with several groups very familiar with these fuels and the FRP tank industry. In all of the information reviewed, only one release case was suspected to be caused by incompatibility problems. In addition, EPA has been unable to find any demonstrated incompatibility problem with 10-percent alcohol-blended fuels and FRP tank systems.
There are two types of FRP tanks. The standard FRP tank is compatible with up to 10-percent alcohol-blended fuels. The second type of FRP tank is manufactured with a special resin that ensures compatibility with blended fuels containing greater than 10-percent alcohol. Although the higher percentage alcohol-blended fuels (11 to 100 percent) might, over long periods of time, (at least theoretically) pose compatibility problems in standard FRP tanks, the actual threat posed is believed to be very small for two reasons. First, the current and projected use of oxygenated fuels shows a trend that will increase the use of 10-percent alcohol-blended fuels but that will not increase the percentage of alcohol in the fuels. Second, information provided to the Agency indicates that numerous facets of industry (tank manufacturers, tank owners, and distributors) are very aware of and concerned with alcohol-blended fuels and FRP tank and piping compatibility problems. Industry practice is for the tank owner or operator to contact the manufacturer when a different product is to be stored, thus allowing the manufacturer to check its records concerning the compatibility of the stored substance and existing tank system. Numerous tanks have been relined with different resins that are compatible with the new fuels. EPA has added a note to the performance standard which refers to industry codes that can be used as guidance to help owners and operators with alcohol-blended fuels satisfy the compatibility requirement.
5. Repairs (§ 280.33)
In § 280.33 of the proposed rule, EPA proposed conditions under which repairs to an UST would be allowed. As discussed in the preamble to the proposal (52 FR 12710-12711), numerous state UST programs already address this topic in their regulations. Eight state programs refer to industry guidelines that should be followed in making repairs. Since proposal, EPA has continued to investigate the subject of UST system repairs. Numerous commenters on the proposal addressed this subject. It is obvious from the response received and other work undertaken by the Agency that there is a great deal of interest and ongoing activity in the field of UST management concerned with UST system repairs (including the development of new codes and practices). As discussed below, today's final rule incorporates several changes to the proposed requirements concerning UST repairs, including the deletion of, revision of, and addition to several of the conditions in the proposal.
a. Repair and Lining (§ 280.33(a)). Under § 280.33(a), EPA proposed to allow the repair and lining of a tank if four requirements were met: (1) a vacuum test was conducted, (2) the lining material was compatible with the regulated substance stored, (3) the tank was inspected internally and ultrasonically tested, and (4) the tank had not been repaired or relined previously. Today's final rule revises some of these proposed requirements as discussed below.
In § 280.33(a)(1), EPA proposed requiring that a vacuum test be conducted on repaired tanks. This requirement was intended to ensure sound repairs (52 FR 12711). The vacuum test is no longer required for reasons that are discussed in more detail in subsection d. below.
In § 280.33(a)(2), EPA proposed requiring that the lining material applied to the interior of the tank be compatible with the regulated substance stored. All commenters that agreed this provision was necessary and pointed out that it is one that is already being followed in current industry practice. The specific requirement has, therefore, been deleted but the lining material is still required in the final rule to be compatible with the regulated substance stored in the tank because this concern is incorporated into all current codes and practices and one of these must be followed under the final rule.
In § 280.33(a)(3), EPA proposed internal inspection and ultrasonic testing of a tank to determine that it was structurally sound. Under today's final rule, the tank must still be internally inspected and determined to be structurally sound, but the ultrasonic test is no longer required. EPA received comments concerning the methods to test a tank to ensure that it is still structurally sound. These comments indicated that alternative tests were available to determine the structural integrity of the tank. National codes, including API 1631 and NLPA 631, provide alternative methods. Currently available data submitted and developed independently by EPA concerning field performance of tank lining indicate that if these codes are followed, the lined tanks will perform very well (see the discussion of interior lining under the upgrading section presented earlier in this preamble). EPA has learned that Underwriters Laboratories is currently developing a performance test (Subject 1856); however, it is still in the draft stage at this time. Consequently, today's final rule reflects the conclusion that it is not necessary to require a specific test to ensure structural soundness. Thus, EPA has substituted a performance requirement in § 280.33(d)(1) of the final rule that the internal inspection be conducted in accordance with codes of practice developed by a nationally recognized association or independent testing laboratory.
For purposes of assisting implementation of this general requirement, the final rule includes the note that the lining and repair procedures described in API 1631 and NLPA 631 may be used to comply with § 280.33(a). These codes describe test protocols for inspecting tanks to determine the structural soundness. The use of the ball peen hammer test is described, as well as the use of ultrasound. The codes include criteria for minimum allowable remaining thickness and maximum number of perforations per unit area in determining the condition of the tank. The codes also specify tests to ensure that the repair or lining has been performed correctly. EPA intends by this approach to allow other applicable national codes (such as UL 1856) developed in the future to be used in meeting this requirement.
In § 280.33(a)(4), EPA proposed limiting UST repair to only tanks that had not been previously repaired. In other words, a tank could be repaired only once so as to avoid continued repair of an UST that was fundamentally unsound (52 FR 12711). Some of the commenters suggested that, under this approach, EPA needed to resolve definitional questions concerning what constitutes a repair versus simple preventive maintenance. They expressed concern that the proposed one-time repair provision might preclude the use of preventive maintenance that would otherwise prevent leaks. Other commenters opposed this requirement, stating that structurally sound tanks could be repaired repeatedly; they also provided extensive data showing that repaired tanks had an excellent performance record. Other commenters opposed allowing any repairs to tanks that had leaked.
After study of the comments, review of the submitted performance data on repaired tanks, and further study of the codes, EPA agrees that restricting repair to a single time is unnecessary. The submitted record of repaired tanks was found to be very good and numerous EPA contacts with tank lining users and regulators have generally confirmed the accuracy of this performance record. Therefore, EPA has concluded that the tank repair codes already in existence (and in use for years) provide adequate standards and guidelines for determining if a particular tank qualifies for repair. Consequently, EPA has not included the one-time only repair requirement in the final rule and will allow tanks to be repaired more than once provided that they meet the standards for repairability in the applicable codes and that the repair is completed in compliance with these standards. If a tank has leaked product, however, the requirements for corrective action must be met and will sometimes require removal of the tank in order to complete the appropriate cleanup measures even if it is determined to be structurally sound and repairable.
b. Cathodic Protection (§ 280.33(e)). In § 280.33(b), EPA proposed that all steel tanks with corrosion holes that are subsequently repaired be retrofitted with a cathodic protection system that is designed by an independent corrosion expert and operated and maintained in accordance with § 280.31. Again, comments were received objecting to the requirement of the use of an "independent" corrosion expert on the grounds that many companies employ corrosion experts and that requiring an independent expert would be unnecessary and burdensome. As discussed earlier in this preamble in section IV.B.1.a., EPA is dropping the requirement for an "independent" corrosion expert in the final rule.
Comments were also received indicating that the addition of a cathodic protection system to a tank that was repaired by lining was not necessary and represented a significant additional expense. In view of the excellent performance record to date with relined tanks, EPA agrees with this point to some extent. Accordingly, in the final rule, EPA will allow lining alone as an upgrade alternative for corrosion protection provided that it is done within the confines of one of the national codes. In other words, a tank that is determined to be structurally sound under the criteria in the codes may be upgraded by lining alone for a 10-year period. The interior of the tank must be reinspected at the end of the 10-year period following the lining. If this inspection shows the tank is still sound, again in conformance with the existing codes, the upgrade can be extended for use for another 5 years. Thus, in the final rule, lining alone (without cathodic protection) provides an allowable upgrade for corrosion protection for a 10-year period. This period may be extended in 5-year increments by inspecting the tank according to the codes and demonstrating that the tank is still sound and that the lining can prevent releases for another 5 years.
c. Authorized Repair for FRP Tanks (§ 280.33(b)). In § 280.33(c), EPA proposed that repairs to FRP tanks be made only by the manufacturer's authorized representatives. Many comments were received opposing this proposed requirement.
Commenters argued that qualified in-house personnel should be allowed to perform repairs and that such a restriction would limit the opportunity for private enterprise and small businesses to enter into the FRP repair industry. They also expressed concerns that restricting repairs to the manufacturer's authorized representatives would increase the cost to the owners and operators. Finally, they believed that such a restriction could result in insufficient repair capability and cause delays in repair, particularly in less populated and more remote regions.
Several comments were also received that supported the proposed requirements stating that long-term repair of FRP tanks requires the use of proper repair materials and techniques. Commenters in favor of this position argued that only the manufacturer has the requisite knowledge of the appropriate materials and methods to repair the specific composition of FRP used in its tanks. They pointed out that these manufacturers have already established authorized representatives trained in the proper methods and supplied with the quality-assured and correct materials. They also suggested that, because the manufacturer bears continuance of product liability, only the manufacturer's authorized representatives should be allowed to repair FRP tanks.
After carefully considering the arguments on both sides, EPA has decided to change the proposed requirement to allow not only the manufacturer's authorized representatives to repair FRP tanks but to also allow qualified in-house personnel to conduct repairs if a code of practice developed by a nationally recognized organization or independent testing laboratory is followed.
Information presented by commenters convinced the Agency that there are other qualified and competent individuals who could provide reliable and proper repair services for FRP UST systems. Though there are no currently established industry standard codes for repair of FRP tanks, at least one nationally recognized organization is presently developing such a code. Therefore, the Agency believes it would be imprudent to restrict repair services to only manufacturer's authorized representatives. The Agency also believes that allowing repairs to be conducted by other qualified in-house personnel in accordance with an industry code of practice will help ensure that there are adequate repair personnel available to provide competent repair services in a timely manner.
d. Vacuum Test. In § 280.33(d), EPA proposed requiring that a vacuum test (at 5.3 in. Hg) be performed on the tank following repair. Section 280.33(f) proposed the added requirement of having a tank tightness test performed within one year following the repair of a tank. Comments were received on the technical details of these tests and on whether they were really needed to determine that the repaired tank was sound and would not release product to the environment. Several commenters questioned the technical adequacy and appropriateness of the use of a vacuum test, objecting to this requirement as possibly damaging some types of tanks.
As a result of the technical information supplied by these commenters, EPA agrees that release detection (see § 280.43(d)-(h) of the final rule), and quality control inspections performed according to established industry standards, should provide sufficient ensurance that the repair or lining of the tank was performed correctly, and thus, a vacuum test is not necessary. The current good performance of repaired tanks, most of which were not vacuum tested, points to the validity of these comments. In addition, EPA agrees that the test could be harmful in some cases. Consequently, the Agency has dropped the requirement of a vacuum test from the final rule.
EPA has also decided that the proposed requirement for a tank tightness test within one year following repair is not always necessary because it duplicates the industry practice of internally inspecting lined tanks and the release detection requirements that apply to the repaired tank. The good performance record of repaired tanks makes such an additional requirement unnecessary.
e. Pipes and Fittings (§ 280.33(c)). In § 280.33(e) of the proposal, EPA required replacement of pipes and fittings from which a release had occurred due to corrosion. The proposal did allow the tightening of loose fittings and joints for purposes of repairs. Comments were received indicating that FRP piping could be satisfactorily repaired and that some types of valves could also be repaired adequately without replacement. EPA believes that replacement of metal pipe sections and fittings that released product because of corrosion or other damage is still necessary but, in response to the issues raised by several commenters, will allow repairs of FRP piping in the final rule. The final rule does not prohibit repairs of metal valves provided that these can be done in a manner that provides sufficient protection against releases. To ensure that these allowable repairs are carried out according to sound practice, EPA requires that all of the repaired sections be tested and shown to be tight so that they will not have a release after they are put back into service.
f. Recordkeeping (§ 280.33(f)). In § 280.33(g) of the proposal, EPA required owners and operators of a repaired tank to maintain records, including signed certification, capable of demonstrating compliance with the requirements of this section.
Comments were received suggesting that a log should be required for each tank which would document installation, repairs and maintenance, products, tests, and results. EPA agrees that such a log would be a useful means for owners and operators to document their compliance with UST management requirements and would encourage it. EPA believes, however, that specifically requiring a log as opposed to other methods of recordkeeping is unnecessary.
The final rule retains the general requirement that owners and operators maintain records demonstrating compliance with this section for the operating life of the UST system.
6. Reporting and Recordkeeping (§ 280.34)
a. Introduction. In the preamble to the proposal (52 FR 12711), the Agency identified the importance of the retention by the UST system owner and operator of key records of operation on site, and reporting of significant events to the implementing agency. Because routine reporting would create an overwhelming burden for the implementing agency due to the size of the large regulated universe, records will often be the only way for implementing agencies to determine that certain important regulatory actions actually took place. Such recordkeeping also prompts the owner and operator to carry out regularly scheduled actions that are necessary to protect human health and the environment. Reporting of significant developments (such as leaks and large overfills) provides information to implementing agencies early enough for them to ensure effective action is taken by owners and operators to correct the problem. In general, the proposal consisted of simple but essential recordkeeping and reporting requirements: recordkeeping that is sufficient to ensure each owner and operator can demonstrate the recent compliance status of the facility; and reporting that allows for early involvement of the implementing agency should an UST system failure need to be corrected.
The proposal required owners and operators to report three significant events to the implementing agency: (1) New UST system installation; (2) final closure; and (3) a suspected release from an UST system and any subsequent actions needed to contain, correct, and clean up a release. An UST system owner and operator who experiences no problems in the operation of the UST system would only have minimal reporting requirements, imposed at the installation and closure of the facility. Only in the event of system failure and a confirmed release would the reporting requirements substantially increase, and the level of this increase would be directly related to the significance of the threat posed to the environment. Recordkeeping was proposed that would demonstrate the use of requisite prevention and monitoring equipment as well as the facility's recent compliance status, as displayed through recent release detection, maintenance, and testing results.
Public comments on the proposal generally supported the Agency's proposed approach to recordkeeping and reporting although some concerns were raised about the scattered placement of these requirements throughout the rule. Some commenters stated that this format made it difficult for them to find and made it confusing to determine all of the owner and operator's recordkeeping and reporting responsibilities. In response to this concern, the final rule includes in one section of the rule (§ 280.34) a reference or directory to all of the reporting and recordkeeping requirements found elsewhere in the rule.
Other commenters suggested that additional and, in some cases, more complete records be required in the final rule. As explained below, however, today's recordkeeping and reporting requirements have remained essentially the same as were proposed. A few minor recordkeeping requirements have been added, and a few additional pieces of information must be reported during corrective actions to assist the implementing agency's assessment of the release problem. These few changes to specific recordkeeping and reporting requirements are discussed elsewhere in today's preamble as part of the more detailed analysis of the final rule's technical requirements for closure; release detection; tank system repair, operation and maintenance; and corrective action.
b. Summary of Final Approach. EPA received widespread support for the general notion that at least some recordkeeping and reporting is essential to ensure owners and operators adhere to the technical standards being promulgated today. EPA did not receive any information or comments to persuade it that a significant departure from the proposed approach was necessary or appropriate. Thus, the final rule essentially retains the proposed approach.
As discussed in the preamble to the proposal (52 FR 12712), recordkeeping is necessary to ensure compliance with the technical standards for release detection, closure, operation and maintenance of corrosion protection systems, and UST system repair. The Agency, as well as many commenters, believes, however, that demonstration of compliance of all requirements over the total operating life of the facility is impractical and unnecessary to protect human health and the environment. Today's approach is predicated on the intent to impose the minimum burden on the regulated community while at the same time ensuring that all owners and operators will be able to demonstrate at the request of the implementing agency whether their UST system is being managed in a manner that will protect human health and the environment. For example, the time frames for record retention were established to enable a demonstration of recent facility compliance status prior to an on-site visit. EPA is convinced that today's final recordkeeping requirements are essential and serve both the implementing agency's and regulated community's mutual interest. Many owners and operators may decide to keep more detailed records than are required or retain records for longer than today's minimum time frames. State and local governments may want to require additional recordkeeping.
Today's final reporting and notification requirements are also intended to foster the self-implementation that underlies today's final technical standards. Under today's reporting requirements, an owner and operator do not have any reporting obligations over the entire service life of the facility beyond the initial notification at installation and the final notification of permanent closure unless a suspected release in the environment has occurred. Given the enormous size of this regulated community, the Agency has concluded that it is impractical and unnecessary to overburden implementing agencies with periodic or routine reports from UST facilities that are operated properly and have no adverse environmental impacts. The Agency expects that most UST systems will rapidly improve and move into this category during the coming 10-year upgrade period.
Reporting of releases and corrective actions taken is explicitly required under section 9003(c) of RCRA. Although EPA expects numerous releases will be identified within this large regulated community, the Agency has concluded that reporting them to the implementing agency is a necessary first step to ensure protection of human health and the environment. Today's final approach to the reporting of releases and corrective action is based on the simple assumption that the more serious a release and its impacts are, the greater the necessity for interaction with (and reporting to) the implementing agency. The implementing agency is expected to ensure that the public interest is represented during cleanup decisionmaking and actual corrective action activities. The greater the threat to human health and the environment, the more reporting and governmental oversight that is needed.
Public comment on recordkeeping was generally favorable. Some commenters, however, objected to the differentiation between on-site and off-site record maintenance and availability. Under the proposal, records kept off-site had to be available within 24 hours while on-site records had to be immediately available. Other commenters objected to the requirement for providing off-site records within 24 hours, noting that sometimes important records are retained at corporate headquarters far removed from the UST sites. EPA agrees that there should be no real distinction for availability of records and that the 24-hour allowance may seem inequitable to those who must maintain records that are immediately available on-site. However, the provision in the final rule remains unchanged. Records retained at the site must be available immediately because EPA has concluded that there is no reason that they should not be except that they are not present or up-to-date when requested. When records are maintained at a business office off-site, they must be located at a readily available site and provided upon request (§ 280.32(c)). This change to require off-site records to be provided "upon request" responds to those commenters who pointed out that the proposed 24-hour limit was often impossible to achieve when records are stored at off-site locations. This change is also made to provide some discretion to the on-site inspector who can talk to the owner and operator and determine where the records are stored off-site and decide whether they should be made available for inspection. If the records are easily accessible, the inspector may request that they be made immediately available. This change also responds to the commenter who believed there should be the same time allowed for providing records stored either on- or off-site because off-site records must be provided within the time frame requested by the implementing agency.
EPA believes that, under most circumstances, copies of the originals should be maintained on-site. If copies are not maintained at the sites, the owner and operator will have to take on the added burden of providing the implementing agency with these copies in an expedited fashion when they are requested.
Also, the Agency has determined that it will not make site plans a required record because it is not necessary to ensure compliance with the technical requirements promulgated today. A site plan is, however, a useful tool for owners and operators. The Agency notes that site plans are recommended in recent updates of national codes addressed to the installation of new UST systems.
Finally, as noted above, in response to commenters' confusion over the various recordkeeping and reporting requirements in the proposal, the final rule has been revised to include a directory in § 280.34 that is intended to simply summarize and identify the recordkeeping and reporting requirements. This new section is intended to eliminate the confusion identified by several commenters when trying to locate their recordkeeping and reporting responsibilities in the proposal. Each item of reporting and recordkeeping is identified and listed, including a reference to the section of the final rule in which full details may be found. Requirements with respect to the general availability and maintenance of records are presented along with this directory section and have not changed since proposal, except for the slight extension of the allowable period for making off-site records available to the inspector (see discussion above).