USEPA recently announced rulemaking to revise the 1988 underground storage tank (“UST”) regulations at 40 CFR part 280, which include: adding secondary containment requirements for new and replaced tanks, piping, and dispensers; adding operator training requirements; adding periodic operation and maintenance requirements for UST systems, including monthly walkthroughs; removing certain deferrals, including those at airports; adding new release prevention and detection technologies; updating codes of practice; making editorial and technical corrections; and updating state program approval requirements to incorporate these new changes. Revising Underground Storage Tank Regulations--Revisions to Existing Requirements and New Requirements for Secondary Containment and Operator Training; Proposed Rule, 76 Federal Register 71708, published Nov. 18, 2011.

Background - In 1988, USEPA promulgated the UST regulations to set minimum standards for new tanks.  The regulations required, in part, owners and operators of existing tanks to upgrade, replace, or close USTs; to have spill, overfill, and release detection equipment in place; to monitory their UST systems for releases; to report and clean up any releases; and to have financial assurances in place to pay for any cleanups.  While significant progress was made to reduce the number of releases, USEPA believes the regulations fell short because they did not require proper operation and maintenance for some of that equipment.  For example, despite the 1988 regulations, approximately 7,000 confirmed new releases are discovered each year and USEPA stated that release detection equipment is only detecting about 50% of the releases it was designed to detect.  You can review your state’s UST Performance Measurements here.

Biofuels - USEPA’s proposed rulemaking also takes aim at potential problems associated with ethanol- and biodiesel-blended fuels as it relates to the degradation of materials used in the UST system.  USEPA noted that ethanol blends at 25%, compared to the more common 10% or E10 blends, resulted in the degradation of some materials used in the manufacture of seals.  USEPA noted that “According to the U.S. Department of Energy's National Renewable Energy Laboratory (NREL) Biodiesel Handling and Use Guide, Fourth Edition, ‘B100 will degrade, soften, or seep through some hoses, gaskets, seals, elastomers, glues, and plastics with prolonged exposure * * * Nitrile rubber compounds, polypropylene, polyvinyl, and Tygon[supreg] materials are particularly vulnerable to B100.’”  USEPA noted that its proposed rulemaking incorporated several methods the American Petroleum Institute (“API”) recommended to owners and operators storing blends of greater than 10% ethanol.  (API Practice 1626, Aug. 2010.)  USEPA stated that owners and operators meeting API 1626 would comply with the new standards.

New Release Detection Options - USEPA added several release detection options, including continuous in-tank leak detection (“CITLD”) and statistical inventory reconciliation (“SIR”).  The CITLD is an “automatic tank gauge operating on an uninterrupted basis or operating within a process that allows the system to gather incremental measurements to determine the leak status of the tank at least once every 30 days.”  The SIR is a “quantitative analysis with a calculated leak rate capable of detecting a 0.2 gallon per hour leak rate within 30 days with a probability of detection of 0.95 and a probability of false alarm of 0.05 is required, based on a threshold that does not exceed one-half the minimum leak rate.”  USEPA considered an analysis to achieve a probability of detection of 0.99 and a probability of false alarm of 0.01, but determined that such a requirement was too difficult and costly to implement.  Finally, USEPA has chosen to eliminate groundwater and vapor monitoring as release detection methods.

Comments - USEPA is accepting comments until February 16, 2012 at Docket ID No. EPA-HQ-UST-2011-0301.  USEPA estimated the regulatory compliance cost of its preferred option will be $210 million or 1/10 of 1% in the average price of motor fuel.