71708 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 280 and 281 

[EPA–HQ–UST–2011–0301; FRL–9485–5] 

RIN 2050–AG46 

Revising Underground Storage Tank 

Regulations—Revisions to Existing 

Requirements and New Requirements 

for Secondary Containment and 

Operator Training 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to make 

certain revisions to the 1988 

underground storage tank (UST) 

technical, financial responsibility, and 

state program approval regulations. 

These changes establish federal 

requirements that are similar to key 

portions of the Energy Policy Act of 

2005; they also update certain 1988 UST 

regulations. Proposed changes include: 

Adding secondary containment 

requirements for new and replaced 

tanks and piping; adding operator 

training requirements; adding periodic 

operation and maintenance 

requirements for UST systems; 

removing certain deferrals; 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. These changes will 

likely protect human health and the 

environment by increasing the number 

of prevented UST releases and quickly 

detecting them, if they occur. 

DATES: Comments must be received on 

or before February 16, 2012. Under the 

Paperwork Reduction Act, comments on 

the information collection provisions 

are best assured of having full effect if 

the Office of Management and Budget 

(OMB) receives a copy of your 

comments on or before December 19, 

2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

UST–2011–0301, by one of the 

following methods: 

• http://www.regulations.gov; Follow 

the online instructions for submitting 

comments. 

• Email: 

mcdermott.elizabeth@epa.gov. 

• Mail: EPA Docket Center (EPA/DC), 

Docket ID No. EPA–HQ–UST–2011– 

0301, Mail Code 2822T, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. In addition, please mail a 

copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St. NW., Washington, DC 

20503. 

• Hand Delivery: EPA Docket Center 

(EPA/DC), EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, DC 

20460. Attention Docket ID No. EPA– 

HQ–UST–2011–0301. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–UST–2011– 

0301. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http:// 

www.regulations.gov your email address 

will be automatically captured and 

included as part of the comment that is 

placed in the public docket and made 

available on the Internet. If you submit 

an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Docket, EPA/DC, EPA West, Room 

3334, 1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center 

(EPA/DC) is (202) 566–0276. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth McDermott, OSWER/OUST 

(5401P), Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460; telephone 

number: (703) 603–7175; email address: 

mcdermott.elizabeth@epa.gov. 

Table of Contents 

I. General Information 

Does this action apply to me? 

What should I consider as I prepare my 

comments for EPA? 

II. Authority 

III. Background 

Why is EPA changing the UST regulations? 

What is the history of the UST laws and 

regulations? 

What is the impact of this proposal? 

What was EPA’s process in deciding which 

changes to incorporate in the 

regulations? 

IV. Proposed Revisions to the Requirements 

for Owners and Operators of 

Underground Storage Tanks 

A. Changes To Establish Federal 

Requirements for Operator Training and 

Secondary Containment 

1. Operator Training 

2. Secondary Containment 

B. Additional Requirements for Operation 

and Maintenance 

1. Walkthrough Inspections 

2. Spill Prevention Equipment Tests 

3. Overfill Prevention Equipment Tests 

4. Secondary Containment Tests 

5. Operation and Maintenance 

Requirements for Release Detection 

Equipment 

C. Addressing Deferrals 

1. Emergency Power Generator UST 

Systems 

2. Airport Hydrant Fuel Distribution 

Systems 

3. UST Systems With Field-Constructed 

Tanks 

4. Wastewater Treatment Tank Systems 

5. Maintain Deferral for USTs Containing 

Radioactive Material and Emergency 

Generator UST Systems at Nuclear 

Power Generation Facilities Regulated by 

the Nuclear Regulatory Commission 

D. Other Changes 

1. Changes to Overfill Prevention 

Equipment Requirements 

2. Internal Linings That Fail the Periodic 

Lining Inspection and Cannot Be 

Repaired 

3. Notification Requirements 

4. Alternative Fuels and Compatibility 

5. Improving Repairs 

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6. Phase Out Vapor Monitoring and 

Groundwater Monitoring as Release 

Detection Methods 

7. Interstitial Monitoring Results, Including 

Interstitial Alarms, Under Subpart E 

E. General Updates 

1. Incorporate Newer Technologies 

2. Updates to Codes of Practice Listed in 

the UST Regulation 

3. Updates To Remove Old Upgrade and 

Implementation Deadlines 

4. Editorial and Technical Corrections 

F. Alternative Options EPA Considered 

V. Updates to State Program Approval 

Requirements 

VI. Overview of Estimated Costs and Benefits 

VII. Statutory and Executive Orders 

A. Executive Order 12866: Regulatory 

Planning and Overview and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

SUPPLEMENTARY INFORMATION: 

I. General Information 

Does this action apply to me? 

In the table below, EPA is providing 

a list of potentially affected entities. 

However, this proposed action may 

affect other entities not listed below. 

The Agency’s goal with this section is 

to provide a guide for readers to 

consider regarding entities that 

potentially could be affected by this 

action. If you have questions regarding 

the applicability of this action to a 

particular entity, consult the person 

listed in the preceding section titled FOR

FURTHER INFORMATION CONTACT. 

INDUSTRY SECTORS POTENTIALLY AFFECTED BY THE PROPOSED RULE

Industry sector NAICS code 

Retail Motor Fuel Sales ............................................................................................................................................. 447. 

Commercial (wholesale trade, retail trade, accommodation, and food services) ...................................................... 42, 44–45, 72 (excluding 447). 

Institutional (hospitals only) ........................................................................................................................................ 622. 

Manufacturing ............................................................................................................................................................. 31–33. 

Transportation (air, water, truck, transit, pipeline, and airport operations) ................................................................ 481, 483–486, 48811. 

Communications and Utilities (wired telecommunications carriers; and electric power generation, transmission, 

and distribution).

5171, 2211. 

Agriculture (crop and animal production) ................................................................................................................... 111, 112. 

What should I consider as I prepare my 

comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information on a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Authority 

EPA is proposing these regulations 

under the authority of sections 2002, 

9001, 9002, 9003, 9004, 9005, 9006, 

9007, and 9009 of the Solid Waste 

Disposal Act of 1970, as amended by the 

Resource Conservation and Recovery 

Act of 1976, as amended [42 U.S.C. 

6912, 6991, 6991(a), 6991(b), 6991(c), 

6991(d), 6991(e), 6991(f), 6991(h), 

6991(i), and 6991(k)]. 

III. Background 

EPA is proposing certain changes to 

the 1988 underground storage tank 

(UST) regulations in 40 CFR part 280. In 

addition, EPA is planning to implement 

the delivery prohibition provision of the 

Energy Policy Act of 2005 (hereafter 

called Energy Policy Act) for EPA-led 

inspections, but will address that 

independent of today’s proposal. 

Finally, EPA is proposing to revise its 

state program approval (SPA) 

requirements in 40 CFR part 281 to 

incorporate the changes in 40 CFR part 

280. While EPA’s proposed changes to 

the 1988 UST regulations will improve 

environmental protection, we are 

sensitive to future costs for UST owners 

and operators and, as a result, 

minimized required retrofits. 

This proposal strengthens the 1988 

UST regulation by increasing the 

emphasis on properly operating and 

maintaining equipment. The 1988 UST 

regulation required owners and 

operators have spill, overfill, and release 

detection equipment in place, but did 

not require proper operation and 

maintenance for some of that 

equipment. For example, EPA required 

spill prevention equipment to capture 

drips and spills when the delivery hose 

is disconnected from the fill pipe but 

did not require periodic testing of that 

equipment. Today’s proposed revisions 

will require that UST equipment is 

operated and maintained properly, 

which will improve environmental 

protection. These changes also 

acknowledge improvements in 

technology over the last 20 years, 

including the ability to detect releases 

from deferred UST systems. 

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71710 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

1Semi-Annual Report Of UST Performance 

Measures, End Of Fiscal Year 2009, http://epa.gov/ 

oust/cat/camarchv.htm. 

2Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

3Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

4Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

5Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

Why is EPA changing the UST 

regulations? 

EPA is proposing to revise the 1988 

UST regulations to: 

• Establish federal requirements that 

are similar to certain key provisions of 

the Energy Policy Act; 

• Ensure owners and operators 

properly operate and maintain their 

UST systems; 

• Include updates to current 

technology and codes of practices; 

• Make technical and editorial 

corrections; and 

• Update SPA regulation to address 

the proposed changes listed above. 

In 1988, EPA first promulgated the 

UST regulations (40 CFR part 280) to 

prevent, detect, and clean up petroleum 

releases into the environment. The 1988 

UST regulations required new UST 

systems to be designed, constructed, 

and installed to prevent releases; 

existing UST systems had to be 

upgraded to prevent releases. In 

addition, owners and operators were 

required to perform release detection, 

demonstrate financial responsibility, 

and clean up releases. 

The Energy Policy Act amended 

Subtitle I of the Solid Waste Disposal 

Act (SWDA), the statute that authorized 

the UST program. Key Energy Policy 

Act provisions (such as secondary 

containment and operator training) 

apply to all states receiving federal 

Subtitle I money under SWDA, 

regardless of their state program 

approval status, but do not apply in 

Indian country (or in states and U.S. 

territories that do not meet EPA’s 

operator training or secondary 

containment grant guidelines). The U.S. 

has a unique legal relationship with 

federally recognized Indian Tribes. This 

government to government relationship 

includes recognizing the rights of Tribes 

as sovereign governments to selfdetermination and acknowledging the 

federal government’s trust responsibility 

to Tribes. As a result, EPA directly 

implements the UST program in Indian 

country. 

In order to establish federal UST 

requirements that are similar to the UST 

secondary containment and operator 

training requirements of the Energy 

Policy Act, EPA decided to revise the 

1988 UST regulations. EPA also decided 

to revise the 1988 UST regulations in 

order to achieve better release 

prevention and compliance results (see 

section IV.B. Additional Requirements 

for Operation and Maintenance for 

additional information). Today’s 

proposed revisions also fulfill objectives 

in EPA’s UST Tribal Strategy (August 

2006), where both EPA and Tribes 

recognized the importance of 

requirements that ensure parity in 

program implementation among states 

and in Indian country. Requiring 

secondary containment will reduce 

releases to the environment by 

containing them within a secondary 

area and detecting them before they 

reach the environment. Operator 

training will educate UST system 

operators and help them prevent 

releases by complying with the 

regulation and performing better 

operation and maintenance of their UST 

systems. 

Since the beginning of the UST 

program, preventing petroleum and 

hazardous substance releases from UST 

systems into the environment has been 

one of the primary goals of the program. 

Although EPA and our partners have 

made significant progress in reducing 

the number of new releases, 

approximately 7,000 releases are 

discovered each year as of FY 2009.1

Lack of proper operation and 

maintenance of UST systems is a main 

cause of new releases. Information on 

sources and causes of releases shows 

that releases from tanks are less 

common than they once were. However, 

releases from piping and spills and 

overfills associated with deliveries have 

emerged as more common problems. In 

addition, releases at the dispenser are 

one of the leading sources of releases. 

Finally, data show that release detection 

equipment is only detecting 

approximately 50 percent of releases it 

is designed to detect. These problems 

are partly due to improper operation 

and maintenance (see section IV.B. 

Additional Requirements for Operation 

and Maintenance for a more detailed 

discussion of problems).2 3

EPA relies on two draft causes of 

release studies to help support this 

proposed rule. Petroleum Releases at 

Underground Storage Tank Facilities in 

Florida contains release data on 512 

releases from new and upgraded tanks 

in Florida.4 The second draft study, 

Evaluation of Releases from New and 

Upgraded Underground Storage Tank 

Systems, contains release data on 580 

releases from new and upgraded tanks 

in 23 states across the Northeast, South, 

and Central parts of the United States.5

Taken together, these draft studies 

provide information about 1092 releases 

in 24 of the 50 states. The data in the 

two studies, when taken as a whole, 

generally provide a representative 

sampling of releases across the United 

States because nearly half of the states 

contributed to the studies. Both drafts 

were peer reviewed but never finalized 

because the passage of Energy Policy 

Act of 2005 required a reallocation of 

personnel and resources. Even though 

these studies were never finalized, the 

underlying data and calculations can be 

used to support this proposed rule 

because that information did not change 

as a result of the peer review process. 

Many USTs currently in the ground 

were upgraded to meet the spill, 

overfill, corrosion protection, and 

release detection requirements in the 

1988 UST regulation. As these USTs 

continue to age, it is vital that we 

improve UST operation and 

maintenance and test components to 

ensure they are still working as 

intended. Today’s proposed revisions to 

the 1988 UST regulation focus on 

ensuring equipment is working, rather 

than requiring UST owners and 

operators to replace or upgrade 

equipment already in place. The 1988 

UST regulation require owners and 

operators to use equipment that could 

help prevent releases; today’s proposed 

revisions highlight the importance of 

operating and maintaining UST 

equipment so releases are prevented and 

detected early in order to avoid or 

minimize potential soil and 

groundwater contamination. 

EPA is proposing changes to the SPA 

regulation (40 CFR part 281) to address 

today’s proposed changes to 40 CFR part 

280. By doing so, EPA will require states 

to generally adopt the 40 CFR part 280 

changes proposed today in order to 

obtain or retain SPA. 

What is the history of the UST laws and 

regulations? 

In 1984, Congress responded to the 

increasing threat to groundwater posed 

from leaking USTs by adding Subtitle I 

to the Solid Waste Disposal Act 

(SWDA). Subtitle I of SWDA required 

EPA to develop a comprehensive 

regulatory program for USTs storing 

petroleum or certain hazardous 

substances, ensuring that the 

environment and human health are 

protected from UST releases. In 1986, 

Congress amended Subtitle I of SWDA 

and created the Leaking Underground 

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Storage Tank Trust Fund to implement 

a cleanup program and pay for cleanups 

at sites where the owner or operator is 

unknown, unwilling, or unable to 

respond, or which require emergency 

action. 

In 1988, EPA promulgated the UST 

regulation (40 CFR part 280), which set 

minimum standards for new tanks and 

required owners and operators of 

existing tanks to upgrade, replace, or 

close them. In addition, after 1988 

owners and operators were required to 

report and clean up releases from their 

USTs. The 1988 UST regulation set 

deadlines for owners and operators to 

meet those requirements by December 

22, 1998. Owners and operators who 

chose to upgrade or replace had to 

ensure their UST systems included spill 

and overfill prevention equipment and 

were protected from corrosion. In 

addition, owners and operators were 

required to monitor their UST systems 

for releases using release detection 

(phased in during the 1990s, depending 

on when their UST systems were 

installed). Finally, owners and operators 

were required to have financial 

responsibility (phased in through 1998), 

which ensured they have financial 

resources to pay for cleaning up 

releases. EPA has not significantly 

changed the UST regulation since 1988. 

In 1988, EPA also promulgated a 

regulation for state program approval 

(40 CFR part 281). Since states are the 

primary implementers of the UST 

program, EPA established a process 

where state programs could operate in 

lieu of the federal program if states met 

certain requirements and obtained state 

program approval from EPA. The state 

program approval regulation describes 

minimum requirements states must 

meet so their programs can be approved 

and operate in lieu of the federal 

program. 

In 2005, the Energy Policy Act further 

amended Subtitle I of SWDA. The 

Energy Policy Act required states 

receiving Subtitle I money from EPA 

meet certain requirements. EPA 

developed grant guidelines for states 

regarding operator training, inspections, 

delivery prohibition, secondary 

containment, financial responsibility for 

manufacturers and installers, public 

record, and state compliance reports on 

government USTs. The operator training 

and secondary containment 

requirements are two major pieces of the 

Energy Policy Act that currently do not 

apply in Indian country, but will apply 

when EPA finalizes today’s proposed 

regulation. 

What is the impact of this proposal? 

This proposal will ensure parity in 

program implementation among states 

and in Indian country. This proposal 

will achieve parity by adding certain 

requirements to the federal UST 

regulation (that would apply in Indian 

country) that are similar to the operator 

training and secondary containment 

requirements in the Energy Policy Act. 

This action will also further strengthen 

protection of human health and the 

environment from UST releases by 

increasing the emphasis on proper 

operation and maintenance of release 

prevention and detection equipment. 

Today’s proposed revisions also reflect 

improvements in technology that allow 

for the ability to prevent and quickly 

detect releases for many tank systems 

that are currently deferred. The 

regulatory changes proposed today 

impose costs to owners and operators of 

existing regulated UST systems, owners 

and operators of certain deferred USTs, 

as well as costs associated with state 

review of the regulatory changes. EPA 

prepared an analysis of the potential 

incremental costs and benefits 

associated with this action. This 

analysis is contained in the regulatory 

impact analysis (RIA) titled Assessment 

Of The Potential Costs, Benefits, And 

Other Impacts Of The Proposed 

Revisions To EPA’s Underground 

Storage Tank Regulations, which is 

available in the docket for this proposal. 

A summary of these impacts is provided 

under the Statutory Review section of 

this preamble and in the table below. 

COSTS AND BENEFITS OF THE PROPOSED RULE

[2008$ millions] 

7% Discount rate 3% Discount rate 

Total Annual Compliance Costs .................................................................................................................. $210 $210 

Total Annual Avoided Costs ........................................................................................................................ $300–$740 $330–$770 

Net Cost (Savings) to Society ..................................................................................................................... ($530–$90) ($560–$120) 

EPA also prepared a risk assessment 

titled Risk Analysis to Support Potential 

Revisions to Underground Storage Tank 

(UST) Regulations, associated with the 

regulatory changes. The risk assessment 

examines potential impacts to 

groundwater and subsequent chemical 

transport, exposure and risk. It is 

available for review in the docket for 

this proposal. 

What was EPA’s process in deciding 

which changes to incorporate in the 

regulations? 

After the Energy Policy Act became 

law, EPA recognized a need to revise the 

1988 UST regulations. The Energy 

Policy Act required additional measures 

to protect groundwater (either with 

secondary containment or financial 

responsibility for manufacturers and 

installers) and operator training 

requirements in states receiving federal 

Subtitle I money from EPA. However, 

no similar requirements would apply in 

Indian country until EPA promulgates a 

regulation. Both EPA and Tribes are 

committed to ensuring program parity 

between states and in Indian country, 

and today’s proposed regulation, when 

final, will achieve this parity. 

For over 20 years, the 1988 UST 

regulations worked well. However, two 

decades of experience implementing the 

UST program have shown there are a 

number of areas where EPA can 

improve the UST program and increase 

environmental protection. For example, 

updating the regulation to reflect 

current technologies and ensuring 

release prevention and release detection 

equipment are properly operated and 

maintained have surfaced as important 

regulatory changes. 

From the start, EPA embraced an 

open, inclusive, and transparent process 

so all UST stakeholders had an 

opportunity to share their ideas and 

concerns. EPA recognizes concerns 

about costs to owners and operators and 

the importance of limiting requirements 

for retrofits. In developing this rule, we 

reached out to stakeholders involved in 

all aspects of the tank program, 

provided multiple opportunities for 

sharing ideas, and kept stakeholders 

informed of progress. 

Using information from our extensive 

outreach, EPA compiled potential 

proposed changes to the 1988 UST 

regulations. We added or deleted items 

to the list of changes based on data, 

analysis, costs and benefits resulting 

from the proposed changes, and EPA 

discretion. Ultimately, EPA identified 

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6Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

the items in today’s proposal as most 

appropriate. 

IV. Proposed Revisions to the 

Requirements for Owners and 

Operators of Underground Storage 

Tanks 

The following sections describe EPA’s 

proposal, starting with requirements for 

operator training and secondary 

containment. The next four sections 

address changes to the existing 

regulation in 40 CFR part 280, organized 

by topic: Additional requirements for 

operation and maintenance; proposed 

approach for currently deferred tanks; 

other changes to improve release 

prevention and release detection; and 

general updates to the 1988 UST 

regulation. Finally, there is a section 

describing alternative options 

considered. 

After each proposed regulatory 

change, EPA poses some questions to 

which readers may wish to respond. In 

addition to these specific questions, 

readers may provide comments to any 

other area of the proposal on which they 

wish to comment. 

A. Changes To Establish Federal 

Requirements for Operator Training and 

Secondary Containment 

1. Operator Training 

What is EPA proposing? 

EPA is proposing to add a new 

subpart, subpart J—Operator Training, 

to 40 CFR part 280. Through subpart J, 

EPA is proposing the following training 

requirements for three UST system 

operator classes. 

New Definitions 

EPA is proposing the following new 

terms and definitions: 

• Class A operator—individual with 

primary responsibility for operating and 

maintaining an UST system according to 

applicable requirements established by 

the implementing agency. The Class A 

operator typically manages resources 

and personnel, such as establishing 

work assignments, to achieve and 

maintain compliance with regulatory 

requirements. 

• Class B operator—individual with 

day-to-day responsibility for 

implementing applicable regulatory 

requirements established by the 

implementing agency. The Class B 

operator typically implements in the 

field aspects of operation, maintenance, 

and associated recordkeeping for an 

UST system. 

• Class C operator—employee 

responsible for initially addressing 

emergencies presented by a spill or 

release from an UST system. The Class 

C operator typically controls or 

monitors dispensing or sale of regulated 

substances. 

• Training program—any program 

established by the implementing agency 

that provides information to and 

evaluates the knowledge of a Class A, 

Class B, or Class C operator regarding 

requirements for UST systems. 

Training Requirements 

• How operators are designated—UST 

owners and operators must designate 

individuals for each of the three 

operator classes. UST owners and 

operators must designate at least one 

Class A and one Class B operator for 

each UST or group of USTs at a facility. 

UST owners and operators must 

designate all of their employees who 

meet the Class C operator definition as 

Class C operators. 

• Who must be trained—This 

proposed training requirement covers 

all UST systems storing regulated 

substances. UST owners and operators 

must ensure designated individuals 

meet specific training requirements 

according to the operator class in which 

they are designated. 

• Requirements for operator 

training—UST owners and operators 

must ensure operators in each class 

successfully complete training programs 

or comparable examinations that, at a 

minimum, cover these areas: 

Æ Class A operator—spill and overfill 

prevention; release detection; corrosion 

protection; emergency response; 

product and equipment compatibility; 

financial responsibility; notification and 

storage tank registration; temporary and 

permanent closure; related reporting 

and recordkeeping; environmental and 

regulatory consequences of releases; and 

training requirements for Class B and C 

operators. Training for Class A operators 

is general on all listed areas. 

Æ Class B operator—operation and 

maintenance; spill and overfill 

prevention; release detection and 

related reporting; corrosion protection 

and related testing; emergency response; 

product and equipment compatibility; 

reporting and recordkeeping; 

environmental and regulatory 

consequences of releases; and training 

requirements for Class C operator. 

Training for Class B operators may be 

general or specific to a Class B 

operator’s site. 

Æ Class C operator—appropriate 

action to take in response to 

emergencies (including situations 

posing an immediate danger or threat to 

the public or environment and that 

require immediate action) or alarms 

caused by spills or releases from an UST 

system. Training for Class C operators 

may be general or specific to a Class C 

operator’s site. 

• Training programs for Class A and 

B operators must, at a minimum, teach 

and evaluate their knowledge on the 

purpose, methods, and functions of 

items listed in the minimum training 

areas above. Training programs for Class 

C operators must teach and evaluate 

their knowledge of the items listed in 

the minimum training areas above. 

• A training program must meet the 

minimum requirements discussed above 

and evaluate knowledge through a test, 

practical demonstration, or another 

approach acceptable to the 

implementing agency. In lieu of a 

training program, all three operator 

classes must pass comparable 

examinations that assess their 

knowledge in the minimum training 

areas above. 

• The evaluation component of 

training programs and comparable 

examinations must be developed and 

administered by an independent 

organization, the implementing agency, 

or delegated authority. 

• When designated operators must 

complete operator training—UST 

owners and operators must ensure all 

designated Class A, B, and C operators 

are trained or successfully complete a 

comparable examination according to 

criteria and within time frames in the 

schedule below. Phase in is based on 

when USTs were installed because 

newer UST systems tend to have fewer 

releases than older UST systems.6

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7 Grant Guidelines To States For Implementing 

The Operator Training Provision Of The Energy 

Policy Act Of 2005: http://www.epa.gov/oust/ 

fedlaws/optraing.htm. 

PHASE-IN SCHEDULE FOR OPERATOR TRAINING

Criteria Date when operator training or comparable 

examination is required 

One or more USTs at the facility were installed on or before 12/22/1988 ..................................... One year after effective date of rule. 

No USTs at the facility were installed on or before 12/22/1988 and at least one UST at the facility was installed on or before 12/22/1998.Two years after effective date of rule. 

All USTs at the facility were installed after 12/22/1998 ................................................................... Three years after effective date of rule. 

After the last date in the table above, 

UST owners and operators must ensure 

designated Class A and B operators are 

trained within 30 days of assuming 

duties. Designated Class C operators 

must be trained before assuming their 

duties. 

• Retraining—Class A and B 

operators of UST systems determined by 

the implementing agency to be out of 

compliance must complete a training 

program or comparable examination in 

accordance with requirements in 

§ 280.242. At a minimum, training must 

cover the area(s) determined to be out of 

compliance. Retraining must occur 

within 30 days from the date an 

implementing agency determines an 

UST system is out of compliance. 

Retraining is not required if: 

Æ Class A and B operators take annual 

refresher training which covers all 

applicable training requirements for 

their operator class; or 

Æ The implementing agency, at its 

discretion, grants a waiver relinquishing 

the Class A and B operators from 

meeting the retraining requirement. 

• Documentation—UST owners and 

operators must maintain documents that 

identify all operators by class and 

demonstrate that training or retraining, 

if necessary, was completed. These 

documents must contain: 

Æ A list of designated Class A, B, and 

C operators for each UST facility— 

Include names, operator class trained, 

date assumed duties, date completed 

initial training, and date of any 

retraining. These records must be 

maintained for all Class A, B, and C 

operators at the facility for the previous 

three years. 

Æ Proof of training or retraining—A 

paper or electronic record that, at a 

minimum, includes name of trainee, 

date trained, and operator class. In 

addition, records from classroom or 

field training programs or a comparable 

examination, must be signed by the 

trainer or examiner and include the 

printed name of the trainer or examiner, 

company name, address, and phone 

number. Records from computer-based 

training, at a minimum, must include 

the name of the training program and 

web address, if Internet-based. Records 

of retraining must include those areas 

on which the Class A or B operator was 

retrained. Records of training or 

retraining must be maintained as long as 

the Class A, Class B, and Class C 

operators are designated at the facility. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing operator training 

requirements to ensure that all regulated 

UST systems are operated by properly 

trained individuals. The operator 

training provision of the Energy Policy 

Act requires state implementing 

agencies, as a condition of receiving 

federal Subtitle I money, develop statespecific training requirements for three 

classes of UST system operators. EPA 

issued grant guidelines that provide 

minimum requirements state operator 

training programs must include in order 

for states to continue receiving federal 

Subtitle I money.7 The operator training 

grant guidelines apply to most UST 

systems in the United States; however, 

not all are covered. UST systems not 

covered include those in Indian country 

where EPA is the primary implementing 

agency, and in states and territories that 

do not meet the requirements of EPA’s 

operator training grant guidelines. 

Through today’s proposal, EPA is 

closing the gap in coverage and ensuring 

all operators are trained according to 

their level of responsibility, as 

designated as Class A, B, or C. 

Sufficiently training UST operators will 

increase compliance with regulatory 

requirements. In addition, operator 

training may decrease UST system 

releases by educating Class A, B, and C 

operators about their UST system 

requirements, and may result in greater 

protection of human health and the 

environment. 

Today’s proposed operator training 

regulation for UST owners and 

operators is consistent with the 

requirements in EPA’s operator training 

grant guidelines for states. In both, EPA 

establishes minimum operator training 

requirements, yet allows flexibility to 

tailor training programs for specific 

needs. This means that although there 

may be variations among operator 

training programs, all Class A, B, and C 

operators will be trained to meet 

minimum requirements. 

Definitions—EPA is proposing 

specific definitions of the three operator 

classes to distinguish them from the 

term operator defined in the 1988 UST 

regulation. Only if a Class A, B, or C 

operator meets the definition of operator 

in the 1988 UST regulation will he or 

she then be subject to the same 

responsibilities and liabilities as an 

operator. EPA’s proposed definitions of 

Class A, B, and C operators do not 

relieve owners and operators, as defined 

in the 1988 UST regulation, from any 

legal responsibility. EPA based the 

proposed three operator class 

definitions on duties each typically 

performs at UST facilities. 

EPA is proposing a definition for 

training program. It is important that 

training programs for Class A, B, and C 

operators include both sharing 

information and evaluating knowledge. 

How operators are designated—EPA is 

proposing how UST owners and 

operators designate the three operator 

classes for their facilities. EPA is taking 

the position that designating at least one 

Class A and B operator at each facility 

is sufficient. Class A and B operators 

can provide adequate training to Class C 

operators, which should ease UST 

owners’ and operators’ ability to comply 

with this requirement. Because a Class 

C operator’s duties typically place him 

or her in a position of providing initial 

response to an emergency, any UST 

owner’s and operator’s employee who 

meets the Class C operator definition 

must be designated as such and trained 

in emergency response. 

EPA will allow UST owners and 

operators to designate contractors as 

their Class A and B operators as long as 

they are responsible for all areas 

required in the training for the class of 

operator designated. UST owners and 

operators must maintain documentation 

containing individual names of Class A 

and B contractors who complete 

operator training. It will be easier for 

implementing agencies to verify 

training, retraining, and refresher 

training using individual names rather 

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71714 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

than company names. All Class C 

operators must be employees of the UST 

system owner and operator. 

EPA wants to ensure Class A and B 

operator training addresses all 

components and encompasses the entire 

UST system. If an UST system is out of 

compliance and the implementing 

agency determines retraining is 

required, Class A or B operators must 

either be retrained or take annual 

refresher training. EPA cautions UST 

owners and operators to consider 

whether contractors serving as Class A 

or B operators can be designated. 

Because some contractors specialize in 

UST services, they might not be eligible 

to be Class A or B operators. For 

example, if a contractor is only 

responsible for release detection 

compliance, that contractor would not 

be eligible to be a Class A or B operator 

because he or she is not responsible for 

all required training areas. 

EPA realizes many UST owners and 

operators may want to designate one 

person at an UST facility as responsible 

for all Class A, B, and C operator duties. 

EPA will allow one person to serve in 

multiple operator classes; however, that 

person must be trained for each class 

designated. 

Who must be trained—When final, 

today’s proposal will require training for 

designated Class A, B, and C operators 

at UST systems regulated under Subtitle 

I. This includes UST systems of all 

attended and unattended facilities. An 

unattended UST facility means a Class 

A, B, or C operator may not be present 

during times when a facility is 

operating. Nonetheless, even at 

unattended UST facilities, designated 

Class A, B, and C operators must still 

meet the operator training requirement. 

Requirements for operator training— 

EPA based the three operator classes on 

duties each typically performs at UST 

facilities. Building on that, EPA is 

proposing each person designated in an 

operator class pass an examination 

comparable to the training program, or 

meet a specific training program, which 

will: 

• For Class A operator, teach and 

evaluate his or her knowledge to make 

informed decisions regarding 

compliance and determine whether 

appropriate people are fulfilling the 

operation, maintenance, and 

recordkeeping requirements for UST 

systems. 

• For Class B operator, teach and 

evaluate his or her knowledge and skills 

to implement UST regulatory 

requirements on typical UST system 

components or site-specific equipment 

at the UST facility. 

• For Class C operator, teach and 

evaluate his or her knowledge to take 

appropriate action in response to 

emergencies (including situations 

posing an immediate danger or threat to 

the public or environment and that 

require immediate action) or alarms 

caused by spills or releases from an UST 

system. 

For each class of operator, EPA 

considered developing specific training 

curricula that would prescribe length of 

training, areas to cover, and trainer 

qualifications. EPA decided that 

providing the general criteria 

requirements presented in today’s 

proposal is the best approach because 

they provide flexibility while being 

comparable to EPA’s operator training 

grant guidelines for states and ensuring 

each class of operator is trained. 

EPA proposes not to restrict who may 

develop and administer the training 

component of a training program. 

However, to avoid potential conflicts of 

interest, EPA proposes to only allow 

independent organizations to develop 

and administer the evaluation 

component training programs and 

comparable examinations, as long as 

they meet the minimum requirements in 

today’s proposal. EPA considers 

independent organizations to include a 

wide array of program providers who 

are not affiliated with the Class A, B, or 

C operators they are training. For 

example, Class A or B operators can 

train other Class A or B operators at the 

same UST facility, but they cannot 

develop or conduct the evaluation 

component of the training program for 

those operators. However, as discussed 

earlier, Class A or B operators can train 

and evaluate Class C operators. In 

addition, the implementing agency may 

develop and administer a training 

program or comparable examination. 

Although not specifically listed in the 

regulation, EPA will allow a variety of 

ways to train operators. These include 

classroom, computer-based, hands on, 

and any combination of these. 

Accepted in lieu of completing a 

training program, Class A, B, or C 

operators can pass a comparable 

examination (for example, via 

classroom, Internet, or computer 

program) that meets the requirements 

for operator training criteria described 

in today’s proposal. 

When designated operators must 

complete operator training—EPA is 

proposing that UST owners and 

operators ensure all Class A, B, and C 

operators successfully complete a 

training program or a comparable 

examination over three years, based on 

UST installation dates. This phased-in 

approach will stagger the need for 

operator training and reduce a rush at 

the end of the initial three year period. 

Since older USTs potentially pose a 

greater risk to the environment, EPA 

decided Class A, B, and C operators of 

those systems should be trained first. 

After the initial three year phase-in 

period and for consistency with EPA’s 

operator training grant guidelines for 

states, EPA is proposing new Class A, B, 

and C operators be trained as follows: 

• Class A and B operators must be 

trained within 30 days of assuming 

duties. 30 days are sufficient for Class 

A and B operators to receive operator 

training. 

• Class C operators must be trained 

before they assume their duties; it is 

critical that they are trained 

immediately in order to respond to 

emergencies. 

Retraining—UST system 

noncompliance can be an indication 

that Class A and B operators are not 

doing what is necessary to maintain 

compliance. If an UST system is out of 

compliance, then generally, Class A and 

B operators designated for that UST 

system need to be retrained. Retraining 

must, at a minimum, cover those areas 

determined by the implementing agency 

to be out of compliance. Retraining must 

be completed within 30 days of the 

implementing agency making a final 

determination of noncompliance. EPA is 

proposing to allow annual refresher 

training in lieu of retraining as long as 

all training areas required by regulation 

are covered. Refresher training must 

have been in place at the time the 

implementing agency determined the 

UST system was out of compliance. 

EPA is also proposing to allow 

implementing agencies, at their 

discretion, to waive the retraining 

requirement. EPA recommends that 

such a waiver be in writing. In granting 

a waiver, EPA expects the implementing 

agency to consider factors such as the 

severity and areas of noncompliance. In 

those instances where UST system 

noncompliance violations do not 

warrant retraining, EPA encourages 

implementing agencies to provide 

information to Class A and B operators 

so they are able to return their facilities 

to compliance. These allowances will 

provide greater flexibility for UST 

owners and operators to meet the 

retraining requirement. This proposal is 

consistent with EPA’s retraining 

requirement for noncompliance with 

significant operational compliance 

requirements and an annual refresher 

training allowance provided in our 

operator training grant guidelines for 

states. 

EPA considered requiring retraining 

when UST facilities change equipment, 

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but decided this would be an 

unnecessary burden on both the 

regulated community and implementing 

agencies. If an UST system is out of 

compliance because of an equipment 

change, EPA is proposing that the 

implementing agency require that UST 

owners and operators ensure Class A 

and B operators are retrained as 

proposed above. 

Documentation—EPA is proposing 

UST owners and operators maintain a 

list of Class A, B, and C operators at 

each UST facility for the previous three 

years. Keeping this list for three years is 

adequate because it is consistent with 

the inspection frequency provided by 

the Energy Policy Act. Owners and 

operators must have a list of trained 

operators for the past three years each 

time they are inspected. In addition, 

UST owners and operators must also 

document verification of training or 

retraining, as appropriate, for each class 

of operator. EPA will require basic 

information to document Class A, B, 

and C operators and confirm they are 

appropriately trained. For example, 

classroom training must be signed by 

the trainer; computer based training 

does not require a signature but must 

indicate the name of the training. 

Records verifying training or retraining 

must be maintained as long as the Class 

A, B, and C operators are designated at 

the facility. This time frame will allow 

owners and operators to demonstrate 

Class A, B, and C operators are trained 

as long as they are designated at the 

facility. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Should EPA impose a limit on the 

number of USTs or facilities a Class A 

or B operator is responsible for? If so, 

what should the limit be and why? 

• EPA is seeking information about 

the number of unattended regulated 

UST facilities in the United States. How 

many regulated UST facilities are 

unattended in the United States? 

• EPA is basing the initial period for 

meeting the training requirement on the 

UST installation date. Should we 

consider other criteria? If so, what and 

why? 

• Is there a need for a phased-in 

schedule for operator training? If so, is 

EPA’s proposed schedule reasonable? 

• Does EPA’s proposal prohibit 

training approaches currently available? 

If so, which ones and why? 

• Should EPA prohibit particular 

training approaches? If so, which ones 

and why? 

• Although operators can access any 

available information source to obtain 

necessary knowledge of UST systems, in 

order to address potential conflicts of 

interest concerns, only independent 

organizations are allowed to develop 

and administer the evaluation 

component of training programs and 

comparable examinations. Are there 

cases where EPA should consider 

exceptions to this proposed 

requirement? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

2. Secondary Containment 

What is EPA proposing? 

EPA is proposing to add in 40 CFR 

part 280 secondary containment and 

interstitial monitoring requirements for 

new and replaced tanks and piping. In 

addition, UST systems must have 

under-dispenser containment for new 

dispenser systems. 

New Definitions 

EPA is proposing the following new 

terms and definitions: 

• Dispenser system—Equipment 

located above ground that meters the 

amount of regulated substances 

transferred to a point of use outside the 

UST system, such as a motor vehicle. 

This system includes equipment 

necessary to connect the dispenser to 

the UST system. 

• Replaced— 

Æ For a tank: To remove a tank and 

install another tank. 

Æ For piping: To remove 50 percent or 

more of piping and install other piping, 

excluding connectors, connected to a 

single tank. For tanks with multiple 

piping runs, this definition applies 

independently to each piping run. 

• Secondary containment or 

secondarily contained—A release 

prevention and release detection system 

for a tank and/or piping. This system 

has an inner and outer barrier with an 

interstitial space that is monitored for 

leaks. 

• Under-dispenser containment 

(UDC)—Containment underneath a 

dispenser system designed to prevent 

dispenser system leaks from reaching 

soil or groundwater. 

Secondary Containment 

EPA is proposing owners and 

operators install secondary containment 

(including interstitial monitoring) for 

new or replaced tanks and piping 

installed after the effective date of the 

final UST regulation. EPA is not 

proposing secondary containment for 

the following types of piping: 

• Suction piping that meets the 

requirements of § 280.41(b)(2)(i) through 

(v), sometimes called safe suction 

piping; and 

• Piping associated with fieldconstructed tanks and airport hydrant 

fuel distribution systems. 

EPA is proposing secondarily 

contained tanks and piping be: 

• Able to contain regulated 

substances leaked from the primary 

containment until they are detected and 

removed; 

• Able to prevent release of regulated 

substances to the environment at any 

time during the operational life of the 

UST system; and 

• Monitored for a leak at least once 

every 30 days using interstitial 

monitoring according to § 280.43(g). 

In addition to the requirements above, 

pressurized piping must have an 

automatic line leak detector according 

to § 280.44(a). 

EPA is proposing to remove the 

option in § 280.42 for owners and 

operators to use a release detection 

method other than interstitial 

monitoring for hazardous substance 

USTs installed after the effective date of 

the final UST regulation. 

Under-Dispenser Containment 

EPA is proposing owners and 

operators install under-dispenser 

containment beneath new dispenser 

systems at UST systems. EPA will 

incorporate this new requirement by 

adding a new subsection (f) to § 280.20, 

which will require under-dispenser 

containment beneath each new 

dispenser system at an UST system. 

EPA is proposing a dispenser system 

be considered new when both the 

dispenser system and equipment 

needed to connect the dispenser system 

to the UST system are installed at an 

UST facility. The equipment connecting 

the dispenser system to the UST system 

includes check valves, shear valves, 

unburied risers or flexible connectors, 

or other transitional components 

beneath the dispenser that connect it to 

underground piping. Finally, underdispenser containment must be liquid 

tight on its sides, bottom, and at any 

penetrations and allow for visual 

inspection and access to the 

components in the containment system, 

or must be continuously monitored for 

leaks from the dispenser system. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing this change to 

prevent regulated substances from 

reaching the environment and ensure a 

consistent level of environmental 

protection for regulated UST systems 

across the United States. Data from 

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71716 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

8Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

9Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

10Semi-Annual Report Of UST Performance 

Measures, End Of Fiscal Year 2009, http://epa.gov/ 

oust/cat/camarchv.htm. 

11E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

12Title XV, subtitle B, Section 1530 of Energy 

Policy Act of 2005, 109th Congress Public Law 58, 

August 8, 2005. 

13E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

14Preamble to 40 CFR part 280, FR Vol. 53, No. 

185, Friday, September 23, 1988, p. 37154. 

release sites show a higher number of 

releases from single-walled tanks and 

piping when compared to secondarily 

contained systems.8 9 Releases could be 

reduced for tanks and piping if they are 

secondarily contained. 

The Energy Policy Act requires state 

implementing agencies, as a condition 

of receiving federal Subtitle I money, 

implement additional measures to 

protect groundwater. Under the law, 

state implementing agencies’ choices to 

protect groundwater were secondary 

containment (including under-dispenser 

containment) or financial responsibility 

for manufacturers and installers (and 

installer certification). 54 of 56 state 

implementing agencies chose secondary 

containment. The Energy Policy Act did 

not specifically require additional 

measures to protect groundwater in 

Indian country. As the primary 

implementer for more than 2,600 UST 

systems in Indian country, 10 EPA is 

proposing secondary containment for 

new and replaced tanks and piping 

along with under-dispenser 

containment beneath all new dispenser 

systems at UST systems. Over the last 

seven years, approximately 25 new UST 

systems per year were installed in 

Indian country.11 The final UST 

regulation will bring UST systems in 

Indian country to the same level of 

environmental protection as those 

regulated by states. 

The Energy Policy Act requires states 

that receive federal Subtitle I money 

(and that choose the secondary 

containment option) to have secondary 

containment and under-dispenser 

containment for tanks, piping, and 

dispensers only if they are installed or 

replaced within 1,000 feet of an existing 

community water system or potable 

drinking water well.12 However, EPA is 

proposing all new and replaced tanks 

and piping have secondary containment 

and UST systems have under-dispenser 

containment beneath all new dispenser 

systems for the following reasons: 

• Nearly all new and replaced tanks 

and piping are installed within 1,000 

feet of an existing community water 

system or potable drinking water well. 

We assume that any UST listed with a 

commercial ownership type (i.e., gas 

station) is located within 1,000 feet of 

an on-site well or public water line 

because nearly all commercially-owned 

facilities with USTs require water 

utilities in order to operate and all 

privately owned facilities (i.e., fleet 

fueling for non-marketers) are also 

assumed to be in close proximity to 

some type of water supply given that 

these sites are typically combined with 

other functional operations (office, 

maintenance, manufacturing, etc.) and 

require water for restrooms, water 

fountains, shops, etc.;13

• Some state implementing agencies 

that require secondary containment only 

within 1,000 feet of one of these water 

sources have informed EPA that 

installations of single-walled tanks or 

piping are not occurring; and 

• Secondary containment and underdispenser containment will help protect 

other sensitive areas, such as designated 

source water protection areas, natural 

springs, and surface waters. 

EPA is not proposing secondary 

containment for piping that meets the 

requirements of 280.41(b)(2)(i) through 

(v), sometimes called safe suction 

piping because it is currently not 

required to meet release detection 

requirements. This type of piping uses 

a suction pump to deliver regulated 

substances from the UST to the 

dispenser. Safe suction piping operates 

at less than atmospheric pressure, 

slopes back towards the UST so 

regulated substances drain to the UST if 

suction is lost, and has only one check 

valve located close to the suction pump. 

As discussed in the 1988 UST 

regulation preamble, these 

characteristics ensure that little, if any, 

regulated substances will be released if 

a break occurs in the line.14

EPA is not proposing secondary 

containment for piping associated with 

field-constructed tanks and airport 

hydrant fuel distribution systems. EPA 

understands this piping typically is 

larger diameter and runs for long 

distances, making it difficult to slope 

the piping back to an interstitial 

monitoring area. In addition, EPA 

understands it is difficult to keep water 

out of the interstitial area of these long 

piping runs. Since nearly all this piping 

is steel, corrosion can occur in the 

interstitial area when an electrolyte, 

such as water, is in the interstitial area. 

This corrosion can significantly shorten 

the piping’s life. Corrosion protection 

safeguards piping in contact with the 

ground, but does not protect the inside 

part of piping from corrosion. To 

prevent corrosion caused by water in 

the interstitial area, owners and 

operators would need to add corrosion 

protection inside the interstitial area of 

piping, which EPA realizes would be 

difficult, if not impossible, to do. Given 

all of these issues, secondary 

containment for these piping runs could 

potentially reduce environmental 

protection. 

EPA is proposing owners and 

operators install tank and piping 

secondary containment that: will 

contain regulated substances leaked 

from the primary containment until they 

are detected and removed; is able to 

prevent the release of regulated 

substances to the environment at any 

time during the operational life of the 

UST system; and is monitored for a leak 

at least once every 30 days using 

interstitial monitoring. These 

requirements are consistent with the 

1988 UST regulation for secondarily 

contained hazardous substance tanks 

(§ 280.42) and are necessary to help 

prevent releases to the environment. 

The secondary containment 

requirement applies to new or replaced 

underground tanks and piping regulated 

under Subtitle I except those excluded 

by regulation at 40 CFR 280.10(b) and 

those deferred by regulation at 40 CFR 

280.10(c). All petroleum and hazardous 

USTs are intended to meet the 

secondary containment requirement 

with the corresponding use of 

interstitial monitoring. EPA’s current 

regulation allows variances to the use of 

interstitial monitoring as the method of 

release detection for hazardous 

substance USTs. Since these variances 

are no longer an option, EPA is 

eliminating this language to avoid 

confusion. 

EPA is not proposing secondary 

containment and/or under-dispenser 

containment for UST systems where 

installation began on or before the 

effective date of the final UST 

regulation. Similar to the definition of 

existing tank system in the 1988 UST 

regulation, EPA considers an 

installation to have begun after the 

owner or operator has obtained all 

federal, state, and local approvals or 

permits and: 

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15 Grant Guidelines To States For Implementing 

The Secondary Containment Provision Of The 

Energy Policy Act Of 2005: http://epa.gov/oust/ 

fedlaws/secondco.htm. 

16E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

17 IEc Incorporated, Work Assignment # 1–19, 

‘‘Methodology and Calculator for Secondary 

Containment for Piping,’’ October 3, 2008. 

18Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

19Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

20Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

21Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

22Frequency And Extent Of Dispenser Releases 

At Underground Storage Tank Facilities In South 

Continued 

• Physical construction or installation 

began; or 

• The owner or operator entered into 

a contractual agreement that cannot be 

cancelled or modified without 

substantial loss and physical 

construction or installation will 

commence within a reasonable time 

frame. 

Requiring retrofits would be a 

significant financial burden for owners 

and operators. EPA anticipates owners 

and operators will replace single-walled 

UST systems as they age. When owners 

and operators replace singled-walled 

UST systems after the effective date of 

the final UST regulation, new tanks and 

piping will need to be secondarily 

contained and new dispensers will have 

under-dispenser containment. 

To implement secondary containment 

and under-dispenser containment, EPA 

is proposing to add new terms and 

definitions: Dispenser system; replaced; 

secondary containment or secondarily 

contained; and under-dispenser 

containment. EPA defined these terms 

so they are no less stringent than the 

definitions contained in EPA’s 

secondary containment grant guidelines 

to state implementing agencies.15

EPA’s secondary containment grant 

guidelines provide states with 

significant flexibility to define 

‘‘replaced’’ as it applies to piping. The 

guidelines require that states, at a 

minimum, consider replacing piping 

when 100 percent of piping, excluding 

connectors, connected to a single UST is 

removed and other piping is installed. 

When deciding how to best define 

replaced as it applies to piping, EPA 

analyzed state UST regulations for 

approximately 40 states that currently 

require secondary containment and 

interstitial monitoring.16 About 75 

percent of these states have 

requirements as stringent as, or more 

stringent than, the 50 percent threshold 

EPA proposes. 

In addition, EPA performed a 

screening analysis using limited, 

readily-available data to determine 

when repair cost approached 

replacement cost (and at what point 

owners and operators were most likely 

to replace the entire piping run rather 

than repair it).17 The screening analysis 

suggested replacement cost of an entire 

piping run became equal to repair cost 

when about 60 percent of a piping run 

is repaired. Based on this information, 

EPA is proposing owners and operators 

secondarily contain an entire piping run 

when 50 percent or more of a piping run 

is replaced. This is consistent with most 

state implementing agency decisions 

and existing economic incentives. This 

will also prevent owners and operators 

from leaving small pipe sections in the 

ground to avoid this proposed 

secondary containment requirement. If 

an UST has multiple piping runs, the 

secondary containment requirement 

will only apply to those where 50 

percent or more of piping is replaced. 

Currently installed piping runs, and 

piping runs where less than 50 percent 

of the piping is repaired, will not 

require secondary containment. 

For pressurized piping, EPA considers 

a piping run to be the piping that 

connects the submersible turbine pump 

(STP) to all of the dispensers fed by that 

pump. For example, if a tank has two 

STPs, the piping associated with each 

STP would be considered separate 

piping runs. For suction piping, a 

piping run is the piping that runs 

between the tank and the suction pump. 

Consistent with EPA’s current policy, 

if an owner or operator chooses to 

reinstall a secondarily contained tank or 

piping that was previously installed, 

that tank or piping must meet new tank 

and piping standards in § 280.20 at the 

time of installation. 

The Energy Policy Act defined 

secondary containment as a release 

detection and prevention system that 

meets the interstitial monitoring 

requirement in § 280.43(g). Based on 

this definition, EPA is proposing to 

include interstitial monitoring as part of 

the secondary containment definition. 

Therefore, secondary containment 

means having an interstitial space to 

monitor and monitoring that space for a 

leak. Consistent with the 1988 UST 

regulation release detection 

requirements, EPA is proposing 

interstitial monitoring of new and 

replaced secondarily contained tanks 

and piping at least once every 30 days. 

EPA is proposing owners and 

operators install under-dispenser 

containment beneath new dispenser 

systems at UST systems. Data from 

release sites show dispensers are one of 

the leading release sources.18 19 Underdispenser containment is located 

underground and will prevent some 

releases by containing small releases 

that occur inside and beneath the 

dispenser. EPA considers a dispenser 

system new when both the dispenser 

and equipment needed to connect the 

dispenser to an UST system are 

installed at an UST facility. EPA is 

proposing check valves, shear valves, 

unburied risers or flexible connectors, 

and other transitional components be 

included as equipment that connects a 

dispenser to an UST system. This 

equipment is located beneath the 

dispenser and typically connects 

underground piping to a dispenser. If an 

owner or operator replaces a dispenser 

but uses existing equipment to connect 

a dispenser to the UST system, then 

under-dispenser containment is not 

required. 

To contain small releases from the 

dispenser, piping, and other equipment, 

the under-dispenser containment must 

be liquid tight. EPA is proposing underdispenser containment be liquid tight 

on its sides, bottom, and at any 

penetrations through the containment. 

EPA is proposing periodic testing of 

under-dispenser containment in the 

secondary containment tests section (see 

section B–4). In addition, an owner or 

operator must have access to and be able 

to visually inspect the containment. If 

visual inspection and access are not 

available, then under-dispenser 

containment must be continuously 

monitored to ensure containment is 

intact and free of liquids. Continuous 

monitoring and visual inspections 

(required in the proposed walkthrough 

inspections discussed in section B–1) 

will ensure problems with the underdispenser containment will be detected 

before a release to the environment 

occurs. 

The Energy Policy Act requires underdispenser containment beneath new 

motor fuel dispenser systems at UST 

systems. However, EPA is aware of a 

small number of dispenser systems 

which do not dispense motor fuel (for 

example, kerosene dispensers). Small 

releases can occur at these dispensers in 

the same manner as they occur at motor 

fuel dispensers.20 21 22 Therefore, EPA is 

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Carolina (EPA–510–R–04–004, September 2004). 

http://epa.gov/oust/pubs/dispenser.htm. 

23Email from Laura Fisher, California State Water 

Resources Control Board, April 30, 2010. 

proposing owners and operators install 

under-dispenser containment beneath 

new dispenser systems at UST systems, 

irrespective of whether they dispense 

motor fuel. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• If you have any of the following 

data, please provide the: 

Æ Number of UST systems not 

installed within 1,000 feet of any 

existing community water system or 

potable drinking water well. 

Æ Number of non-motor fuel 

dispensers connected to UST systems in 

the United States. 

Æ Typical length or percentage of 

piping repaired during a typical repair. 

Æ Costs, types and frequency of 

piping repairs and replacements. 

• Are there regulatory incentives that 

EPA should consider to encourage 

owners and operators to move toward 

secondary containment? If yes, what are 

those incentives? 

• In addition to the three types of 

piping identified for exclusion by EPA, 

are there other types of piping for which 

secondary containment is impractical or 

unnecessary? If yes, what are those 

types and why is secondary 

containment impractical or 

unnecessary? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

B. Additional Requirements for 

Operation and Maintenance 

The 1988 UST regulation required 

owners and operators to install 

improved UST system equipment to 

detect and prevent releases; however, it 

did not require operation and 

maintenance for all of that equipment. 

Owners and operators need to properly 

operate and maintain their UST system 

equipment in order to prevent and 

quickly detect releases. Therefore, we 

propose to add requirements for 

periodic spill, overfill, secondary 

containment, and release detection 

testing along with periodic walkthrough 

inspections to prevent and quickly 

detect releases. 

When a test or inspection occurs, 

owners and operators may find 

problems with the UST system. When a 

test or inspection indicates a problem, 

owners and operators must repair the 

problem to remain in compliance with 

the 1988 UST regulation. Section 280.33 

of the 1988 regulation describes repair 

requirements for UST systems. 

1. Walkthrough Inspections 

What is EPA proposing? 

In § 280.37, EPA is proposing owners 

and operators perform walkthrough 

inspections of their UST systems at least 

once every 30 days and meet one of 

these three options: 

• Option 1: Conduct operation and 

maintenance walkthrough inspections 

that, at a minimum and as appropriate 

to the facility, check the following 

equipment: 

Æ Spill prevention equipment 

fi Open and visually check for any 

damage; 

fi Remove any liquid or debris; 

fi Check each fill cap to make sure it 

is securely on the fill pipe; and 

fi If secondarily contained with 

continuous interstitial monitoring, 

check for a leak in the interstitial area. 

Æ Sumps and dispenser cabinets 

fi Open and visually check for any 

damage, leaks to the containment area, 

or releases to the environment; 

fi Remove any liquid (in contained 

areas) or debris; and 

fi If contained areas are secondarily 

contained with continuous interstitial 

monitoring, check for a leak in the 

interstitial area. 

Æ Monitoring/observation wells 

fi Check covers to make sure they are 

secured. 

Æ Cathodic protection 

fi Check to make sure impressed 

current cathodic protection rectifiers are 

on and operating; and 

fi Ensure records of three year 

cathodic protection testing and 60 day 

impressed current system inspections 

are reviewed and current. 

Æ Release detection 

fi Check to make sure the release 

detection system is on and operating 

with no alarm conditions or other 

unusual operating conditions present; 

fi Check any devices such as tank 

gauge sticks, groundwater bailers, and 

hand-held vapor monitoring devices for 

operability and serviceability; and 

fi Ensure records of release detection 

testing are reviewed monthly and 

current. 

• Option 2—Conduct operation and 

maintenance walkthrough inspections 

according to a standard code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory that are comparable to the 

specific requirements listed above. 

• Option 3—Conduct operation and 

maintenance walkthrough inspections 

developed by the implementing agency 

that are comparable to the specific 

requirements listed above. 

EPA is proposing owners and 

operators maintain walkthrough 

inspection records for one year. Each 

record must include a listing of each 

area checked, whether each area 

checked was acceptable or needed to 

have some action taken, and a 

description of actions taken to correct 

an issue. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

The 1988 UST regulation focused on 

owners and operators installing 

improved UST equipment, but did not 

require significant equipment operation 

and maintenance activities. After more 

than 20 years of experience with UST 

requirements, EPA finds both using 

improved equipment and operating and 

maintaining UST equipment are 

necessary to protect human health and 

the environment. 12 states have adopted 

monthly walkthrough inspection 

requirements for their UST facilities. Of 

those states, only California has been 

implementing the requirement long 

enough to provide input about the 

effectiveness of walkthrough 

inspections. California indicates that, 

according to UST inspectors and 

industry people, the monthly 

inspections decreased the number of 

violations found, reduced the frequency 

and duration of release detection 

alarms, prompted better record keeping, 

and resulted in overall better operations 

at the UST facility.23

As part of operating and maintaining 

UST systems, EPA proposes owners and 

operators conduct walkthrough 

inspections at least once every 30 days. 

Periodic walkthrough inspections will 

help owners and operators detect 

problems earlier, resulting in fewer 

releases to the environment and reduced 

environmental impacts of releases that 

reach the environment. 

Walkthrough inspections are designed 

to verify proper function or operating 

condition of easily accessible UST 

system components and ensure required 

records are current. These inspections 

typically include reviewing records and 

checking components to confirm 

function or condition. For example, 

owners and operators will be required to 

review current records and ensure 

equipment is operating properly; 

containment sumps are free of liquid 

and debris; and leaks are not occurring 

at dispensers, submersible turbine 

pumps, and other areas. EPA used the 

Petroleum Equipment Institute’s 

Recommended Practice 900, 

Recommend Practices for the Inspection 

and Maintenance of UST Systems, as a 

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guide as we developed the proposed 

walkthrough inspection requirements. 

EPA is proposing allowing owners and 

operators to hire a third party to 

conduct walkthrough inspections 

instead of performing the inspection 

themselves. 

EPA is proposing three options for 

owners and operators to choose from in 

conducting walkthrough inspections: 

follow the specific requirements 

(described below) appropriate to the 

UST facility; use a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory; or follow requirements 

developed by the implementing agency. 

At a minimum, walkthrough inspections 

conducted according to a code of 

practice or developed by the 

implementing agency need to be 

comparable to the following 

requirements. The specific requirements 

proposed and reasons for their inclusion 

in the regulation are: 

• For spill prevention equipment— 

open each spill prevention area, check 

for damage, and remove any liquid or 

debris; check the fill cap to make sure 

it is securely on the fill pipe; and for 

secondarily contained spill prevention 

equipment with continuous interstitial 

monitoring, check for a leak in the 

interstitial area. 

Æ Damaged spill prevention 

equipment can release regulated 

substances into the environment and 

liquid or debris can reduce the 

equipment’s capacity. Fill caps not 

secure on the fill pipe can result in 

vapors exiting the tank and can render 

overfill prevention inoperable in tanks 

that use flow restrictors in the vent line. 

Some spill prevention equipment 

construction materials may not be 

designed to contain regulated 

substances for long periods of time. For 

spill prevention equipment with two 

walls and continuous interstitial area 

monitoring, owners and operators need 

to check the monitoring device or area 

to make sure the interstitial monitoring 

is operating properly and does not 

indicate a leak in the interstitial area. 

• For sumps, including submersible 

turbine pump sumps and transition 

sumps—open and visually check for 

damage, leaks to the containment area, 

or releases to the environment; remove 

any liquid (in contained sumps) or 

debris; and for secondarily contained 

sumps with continuous interstitial 

monitoring, check for a leak in the 

interstitial area. 

Æ Drips and other small releases from 

damaged components contained by the 

sump can result in regulated substances 

remaining in the sump. Damaged sumps 

can release regulated substances into the 

environment. Liquid or debris can 

reduce the capacity of a contained 

sump. Some sump construction 

materials may not be designed to 

contain regulated substances for long 

periods of time. For sumps with two 

walls and continuous interstitial area 

monitoring, owners and operators need 

to check the monitoring device or area 

to make sure the interstitial monitoring 

is operating properly and does not 

indicate a leak in the interstitial area. 

• For dispenser cabinets—open each 

cabinet; visually check for damage, 

leaks to the containment area, or 

releases to the environment; remove any 

liquid (in dispensers with underdispenser containment) or debris; and 

for dispenser sumps with continuous 

interstitial monitoring, check for a leak 

in the interstitial area. 

Æ Visual checks for dispensers are 

important because the 1988 UST 

regulation does not require release 

detection for dispensers. Drips and 

other small releases from damaged 

components in the dispenser cabinet 

can result in regulated substances 

remaining in the dispenser sump or 

being released to the environment. 

Damaged under-dispenser containment 

(if present) can release regulated 

substances into the environment. If 

under-dispenser containment is present, 

liquid or debris can reduce the capacity 

of the containment sump. Some underdispenser containment construction 

materials may not be designed to 

contain regulated substances for long 

periods of time. For dispenser sumps 

with two walls and continuous 

interstitial area monitoring, owners and 

operators need to check the monitoring 

device or area to make sure the 

interstitial monitoring is operating 

properly and does not indicate a leak in 

the interstitial area. 

• For monitoring or observation 

wells—check the covers to make sure 

they are secured. 

Æ These wells need to be secured to 

avoid potential contamination of wells 

through the well cover (for example by 

surface runoff or accidental fuel 

delivery to the well). 

• For cathodic protection—check to 

make sure impressed current cathodic 

protection rectifiers are on and 

operating; ensure records of three year 

cathodic protection testing and 60 day 

impressed current system inspections 

are reviewed and up to date. 

Æ Impressed current cathodic 

protection systems need to be on and 

operating to protect underground metal 

components of the UST system that 

routinely contain regulated substances 

from corrosion. In addition, owners and 

operators need to retain records of the 

most recent two cathodic protection 

tests (required once every three years) 

and the most recent three inspections 

(required once every 60 days) for 

impressed current systems. These 

records show that cathodic protection 

systems are on and operating properly 

to protect UST system components from 

corrosion. Owners and operators who 

record rectifier readings and compare 

those readings to the normal operating 

parameters of the rectifier during the 30 

day walkthrough inspections will meet 

the 60 day impressed current inspection 

requirement in § 280.31(c) without 

further activity. Failure to operate and 

maintain cathodic protection could 

mean that metal UST system 

components are corroding and could 

result in a release to the environment. 

• For release detection—check to 

make sure the release detection system 

is on and operating with no alarm 

conditions or other unusual operating 

conditions present; check any devices 

such as tank gauge sticks, groundwater 

bailers, and hand-held vapor monitoring 

devices for operability and 

serviceability; and ensure records of 

release detection testing are reviewed 

monthly and up to date. 

Æ Release detection equipment needs 

to be operable in order to detect releases 

when they occur. Owners and operators 

must respond to release detection 

alarms. Manual release detection 

equipment needs to be serviceable and 

operational so owners and operators can 

perform proper release detection. In 

addition, owners and operators need to 

ensure they review the most recent 

month’s release detection information 

and retain the most recent year’s worth 

of release detection records. These 

records are required for all methods of 

release detection, and reviews ensure 

UST systems are being checked for a 

release at least once every 30 days. 

Failure to perform these checks could 

mean release detection equipment is not 

operating properly and could result in a 

release to the environment. 

Owners and operators using 

continuous interstitial monitoring for 

double-walled spill prevention devices, 

sumps, or dispenser containment areas 

need to check the interstitial monitoring 

to make sure it is operating properly and 

does not indicate a leak in the 

interstitial area. EPA is aware of these 

continuous interstitial monitoring 

methods: vacuum, pressure, or liquidfilled interstitial area monitoring and 

placing sensors in the interstitial area. 

For vacuum, pressure, or liquid-filled 

interstitial area monitoring using 

electronic devices and sensors, owners 

and operators will need to check the 

electronic device to make sure it is not 

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in alarm. For interstitial areas monitored 

using vacuum, pressure, or liquid-filled 

interstitial area monitoring not using 

some type of electronic monitoring, 

owners and operators will need to make 

sure the vacuum, pressure, or liquid is 

maintaining its appropriate level. 

Owners and operators who do not check 

the interstitial monitoring of spill 

prevention devices must perform 

periodic spill prevention equipment 

testing described in § 280.35(a)(ii) of the 

proposed UST regulation. Owners and 

operators who do not check the 

interstitial monitoring of sumps or 

dispenser containment areas and who 

use those areas for interstitial 

monitoring for their piping must 

perform the periodic testing of 

secondary containment described 

§ 280.36(a)(iii) of the proposed UST 

regulation. 

EPA is proposing walkthrough 

inspections be conducted at least every 

30 days. 30 days is a reasonable time 

frame because: 

• Deliveries occur frequently—often 

daily or every few days; 

• Dispenser filters are changed every 

few weeks or months; 

• It is consistent with the 30 day 

release detection monitoring 

requirement; and 

• Current operation and maintenance 

industry standards (Petroleum 

Equipment Institute Recommended 

Practice 900) recommend monthly 

checks as one of the periodic inspection 

frequencies. 

EPA is proposing owners and 

operators retain the most recent year’s 

worth of records to demonstrate 

compliance with the walkthrough 

inspection requirement. Owners and 

operators will be required to document 

they performed each of the required 

activities at least once every 30 days. 

Keeping one year’s worth of records is 

consistent with the current 

recordkeeping requirement for release 

detection monitoring. EPA is proposing 

owners and operators document each 

area checked, whether each area 

checked was acceptable or needed to 

have some action taken, and provide a 

description of any actions taken to 

correct an issue. This information is 

important to assist implementing 

agencies in determining proper 

operation and maintenance. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is a 30 day inspection frequency an 

appropriate time frame for owners and 

operators to conduct walkthrough 

inspections? 

• Is it reasonable for owners and 

operators to begin conducting 

walkthrough inspections immediately 

after the final UST regulation becomes 

effective? 

• Is specialized training required for 

individuals completing walkthrough 

inspections? If yes, what should EPA 

establish as the extent of the training? 

• Are there other codes of practice 

that should be included for conducting 

walkthrough inspections? 

• Is requiring owners and operators to 

keep the most recent year’s worth of 

records sufficient? 

• Are the items EPA proposes 

checking appropriate? Should EPA add 

anything? Are there checks EPA is 

proposing that should not be required? 

• Should EPA consider not requiring 

owners and operators to remove water 

from contained sumps when both of the 

following conditions exist? 

Æ Owners and operators choose to 

connect an anode to the metal 

components in the sump for corrosion 

protection and 

Æ The sump is not used for interstitial 

monitoring. 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

2. Spill Prevention Equipment Tests 

What is EPA proposing? 

In § 280.35, EPA is proposing owners 

and operators test spill prevention 

equipment (such as a catchment basin, 

spill bucket, or other spill containment 

device) at installation and at least once 

every 12 months. This test must ensure 

spill prevention equipment is liquid 

tight by performing a vacuum, pressure, 

or liquid test according to one of the 

following: 

• Requirements developed by the 

manufacturer (Note that owners and 

operators may use this option only if the 

manufacturer developed spill 

prevention equipment test 

requirements); 

• Code of practice developed by a 

nationally recognized association or 

independent testing laboratory; or 

• Requirements determined by the 

implementing agency to be no less 

protective of human health and the 

environment than the two bulleted 

items above. 

Exception: EPA is proposing spill 

prevention equipment tests not be 

required in those situations where spill 

prevention equipment has two walls 

and the space between the walls is 

monitored continuously (interstitial 

monitoring) to ensure the integrity of 

both the inner and outer wall. 

EPA is proposing owners and 

operators maintain the following: 

• Records of spill prevention 

equipment tests for three years; or 

• Documentation showing the spill 

prevention equipment has two walls 

and is monitored continuously for each 

spill prevention device installed at the 

facility. Owners and operators must 

maintain this documentation for as long 

as the spill prevention equipment is 

monitored continuously and for three 

additional years after continuous 

monitoring ends. 

EPA is proposing owners and 

operators meet this requirement within 

one year after the effective date of the 

final UST regulation for existing UST 

systems and at installation for UST 

systems installed after the effective date 

of the final regulation. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing this change to help 

ensure small releases occurring when 

the delivery transfer hose is 

disconnected from the fill pipe are 

contained in the spill prevention 

equipment. Owners and operators need 

to properly operate and maintain their 

spill prevention equipment in order to 

prevent releases to the environment. If 

a small release occurs at the fill port and 

the spill prevention equipment is not 

liquid tight, then the release can exit the 

spill prevention equipment and reach 

the environment. EPA is aware of 

various problems with spill prevention 

equipment. Examples include damage 

due to: Vehicle drive over; ground 

movement or freeze/thaw cycles; 

inadequate installation practices; and 

normal wear and tear. In addition, the 

typical life of spill prevention 

equipment is about three to seven years, 

but the 1988 UST regulation does not 

have a replacement requirement. 

Today’s proposed periodic spill 

prevention equipment test will 

minimize problems and ensure spill 

prevention equipment will contain 

small releases from the delivery hose 

when disconnected from the fill pipe. 

EPA is proposing not to require 

owners and operators of double-walled 

spill prevention equipment with 

continuous interstitial monitoring to 

conduct annual tests because this spill 

prevention equipment is continuously 

checked for tightness through interstitial 

monitoring. EPA is proposing owners 

and operators in the monthly 

walkthrough inspections visually check 

continuous interstitial monitoring 

methods that do not alert the owner and 

operator with an alarm. Additional 

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information on these inspections is 

available in section B–1. 

EPA is proposing to require vacuum, 

pressure, or liquid methods when 

testing spill prevention equipment. We 

believe these options provide owners 

and operators with significant flexibility 

for testing this equipment. 

EPA is proposing to specifically allow 

owners and operators to use 

manufacturer’s requirements or a code 

of practice developed by a nationally 

recognized association or independent 

testing laboratory for spill prevention 

equipment tests. The manufacturer’s 

requirement is an option only when the 

manufacturer has developed a testing 

requirement. In response to today’s 

proposed regulation, EPA anticipates 

nationally recognized associations or 

independent testing laboratories will 

develop codes of practice for spill 

prevention equipment tests and 

manufacturers will develop testing 

requirements. In addition, EPA is 

providing implementing agencies 

flexibility to allow other methods they 

determine to be as protective of human 

health and the environment as the 

manufacturer’s requirements or a code 

of practice. This option allows 

alternatives in the event codes of 

practice and manufacturer’s testing 

requirements are not developed. 

EPA is proposing owners and 

operators conduct spill prevention 

equipment tests at least once every 12 

months. We propose this frequency 

because spill prevention equipment is 

prone to problems that can occur over 

the course of a year and frequent tests 

will catch problems earlier. In addition, 

testing every 12 months is consistent 

with other testing requirements, such as 

annual automatic line leak detector 

testing, in the 1988 regulation. 

EPA is proposing owners and 

operators maintain spill prevention 

equipment test records three years for 

each spill containment device at a 

facility. These records will enable 

implementing agencies to determine 

whether owners and operators 

conducted annual spill prevention 

equipment testing during the three year 

inspections required by the Energy 

Policy Act. These records will also 

demonstrate that owners and operators 

tested their spill prevention equipment, 

ensuring it will contain small drips and 

spills that can occur when the transfer 

hose is disconnected from the fill pipe. 

In order for double-walled spill 

prevention equipment with continuous 

interstitial monitoring to be exempt 

from spill prevention equipment tests, 

owners and operators will need to 

maintain documentation showing spill 

prevention equipment has two walls 

and uses continuous interstitial 

monitoring. In addition, EPA is 

proposing owners and operators 

maintain this documentation for three 

years after continuous interstitial 

monitoring ends. EPA is proposing 

maintaining this documentation so 

owners and operators can demonstrate 

compliance with the spill prevention 

equipment testing requirement. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is a 12 month frequency an 

appropriate time frame for spill 

prevention equipment tests? For 

example, should EPA consider more 

frequent tests in sensitive areas, such as 

source water protection areas? 

• Are there other acceptable test 

methods in addition to vacuum, 

pressure, or liquid spill prevention 

equipment tests? 

• Is the one year time frame proposed 

for owners and operators to begin 

implementing this requirement 

reasonable? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

3. Overfill Prevention Equipment Tests 

What is EPA proposing? 

In § 280.35, EPA is proposing owners 

and operators test proper operation of 

overfill prevention equipment 

(automatic shutoff devices, flow 

restrictors, and high level alarms) at 

installation and at least once every three 

years. The test must ensure overfill 

prevention equipment is set to activate 

at the appropriate level in the tank (as 

specified in § 280.20(c)) and the 

equipment will activate when the 

regulated substance reaches that height. 

EPA is proposing owners and operators 

test according to one of the following: 

• Requirements developed by the 

manufacturer (Note that owners and 

operators may use this option only if the 

manufacturer developed overfill 

prevention equipment test 

requirements); 

• Code of practice developed by a 

nationally recognized association or 

independent testing laboratory; or 

• Requirements determined by the 

implementing agency to be no less 

protective of human health and the 

environment than the two bulleted 

items above. 

EPA is proposing owners and 

operators maintain records of overfill 

prevention equipment tests for three 

years for each overfill device installed at 

a facility. 

For UST systems installed after the 

effective date of the final UST 

regulation, EPA is proposing owners 

and operators meet this requirement at 

installation. For UST systems installed 

on or before the final UST regulation is 

effective, EPA is proposing owners and 

operators meet this requirement within 

three years and according to the time 

frames in the following table: 

PHASE-IN SCHEDULE FOR OVERFILL PREVENTION EQUIPMENT TESTS

Criteria Date by which first test must be conducted 

One or more USTs at the facility were installed on or before 12/22/1988 ..................................... One year after effective date of rule. 

No USTs at the facility were installed on or before 12/22/1988 and at least one UST at the facility was installed on or before 12/22/1998.Two years after effective date of rule. 

All USTs at the facility were installed after 12/22/1998 ................................................................... Three years after effective date of rule. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing this change to help 

ensure overfill prevention equipment is 

operating properly and will activate 

before an UST is overfilled. Owners and 

operators need to properly operate and 

maintain their overfill prevention 

equipment in order to prevent releases 

to the environment. If overfill 

prevention equipment is not working 

properly, an UST can be overfilled and 

release product to the environment. EPA 

is aware that USTs are being overfilled 

and there are problems with overfill 

prevention equipment. Examples 

include: Tampering; improper use; and 

normal wear and tear. The proposed 

periodic overfill prevention equipment 

tests will minimize problems and 

ensure overfill prevention equipment is 

operating properly. 

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71722 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

Overfill prevention test methods 

should not overfill the tank to determine 

whether overfill prevention equipment 

is operating properly. Rather, the 

equipment should be tested or inspected 

to determine whether it will operate or 

activate properly according to 

requirements set forth in the UST 

regulation. For example, a test or 

inspection for an automatic shutoff 

device in the fill pipe might include 

removing the device and checking it for 

the ability to operate and measuring the 

position of the device in the tank to 

determine whether it will activate at the 

correct height. 

For overfill prevention equipment 

tests, EPA is proposing owners and 

operators use manufacturer’s 

requirements or a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory. The manufacturer’s 

requirement is an option only when the 

manufacturer has developed a testing 

requirement. In response to this 

proposed regulation, EPA anticipates 

nationally recognized associations or 

independent testing laboratories will 

develop codes of practice for overfill 

prevention equipment tests, and 

manufacturers will develop testing 

requirements. In addition, EPA is 

providing implementing agencies 

flexibility to allow other methods they 

determine to be as protective of human 

health and the environment as the 

manufacturer’s requirements or a code 

of practice. This option allows 

alternatives in the event that codes of 

practice and manufacturer’s testing 

requirements are not developed. 

EPA is proposing owners and 

operators conduct overfill prevention 

equipment tests at least once every three 

years. We propose this frequency 

because overfill prevention equipment 

is less prone to problems than spill 

prevention equipment, but still needs 

periodic testing. In addition, a three 

year time frame is consistent with other 

testing requirements, such as cathodic 

protection testing and the proposed 

three year interstitial integrity testing. 

EPA is proposing to stagger 

implementation over a three year period 

based on the installation date of the 

oldest UST at the facility. The proposed 

phase-in will require overfill prevention 

equipment in older UST systems that 

pose a greater risk to the environment to 

be tested first. The phase-in approach 

will allow overfill prevention 

equipment tests to be spread out and 

reduce the risk of a last-minute rush of 

owners and operators obtaining overfill 

prevention equipment tests at the end of 

the initial three-year period. 

EPA is proposing owners and 

operators maintain overfill prevention 

equipment test records for three years 

for each overfill device at a facility. 

These records will demonstrate to 

implementing agencies that the overfill 

prevention equipment has been tested, 

is set at the appropriate height in the 

tank, and will activate when regulated 

substances reach that height. EPA is 

proposing owners and operators 

maintain records for three years to 

coincide with the three year inspection 

frequency required by the Energy Policy 

Act. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is a three year frequency an 

appropriate time frame for overfill 

prevention equipment tests? For 

example, should EPA consider more 

frequent tests in sensitive areas such as 

source water protection areas? Should 

EPA consider less frequent testing? 

• Should EPA consider owners and 

operators retain overfill prevention 

equipment test records for a different 

time frame? 

• Is the three year time frame and 

phase-in proposed for owners and 

operators to begin implementing this 

requirement reasonable? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

4. Secondary Containment Tests 

What is EPA proposing? 

In § 280.36, EPA is proposing owners 

and operators test secondary 

containment areas that use interstitial 

monitoring at least once every three 

years. A secondary containment test 

(also called an interstitial integrity test) 

is performed in the space between tank 

walls, pipe walls, or in a secondary 

containment sump area and ensures the 

area being tested has integrity and will 

contain a leak. Secondary containment 

areas include tank and piping 

interstitial areas, as well as containment 

sumps used as part of the piping 

secondary containment and interstitial 

monitoring. EPA is proposing owners 

and operators test interstitial integrity 

areas using a vacuum, pressure, or 

liquid method according to one of the 

following: 

• Requirements developed by the 

manufacturer (Note that owners and 

operators may use this option only if the 

manufacturer developed interstitial 

integrity test requirements); 

• Code of practice developed by a 

nationally recognized association or 

independent testing laboratory; or 

• Requirements determined by the 

implementing agency to be no less 

protective of human health and the 

environment than the two bulleted 

items above. 

Exceptions: EPA is proposing the 

following exceptions apply to 

interstitial integrity tests: 

• Tanks—Owners and operators 

using continuous interstitial monitoring 

on their tanks will not be required to 

perform periodic interstitial integrity 

tests. 

• Piping—Owners and operators 

using vacuum monitoring, pressure 

monitoring, or liquid-filled interstitial 

space monitoring on their underground 

piping will not be required to perform 

periodic interstitial integrity tests. 

• Containment sumps—Owners and 

operators using containment sumps 

which have two walls and continuously 

monitor the interstitial space between 

the walls for releases will not be 

required to perform interstitial integrity 

tests. 

EPA is proposing owners and 

operators maintain the following: 

• Records of interstitial integrity tests 

for three years; or 

• Documentation demonstrating that 

the tanks, piping, or containment sumps 

are not required to have a periodic 

interstitial integrity test according to the 

exceptions above. Owners and operators 

must maintain this documentation for as 

long as the tank, piping, or containment 

sump uses one of the continuous 

methods listed in the exceptions and for 

three additional years after continuous 

monitoring ends. 

For UST systems installed after the 

effective date of the final UST 

regulation, EPA is proposing owners 

and operators meet this requirement at 

installation. For UST systems installed 

on or before the final UST regulation is 

effective, EPA is proposing owners and 

operators meet this requirement within 

three years and according to the time 

frames in the following table: 

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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 71723 

24Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

25Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

26Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

27Evaluation Of Releases From New And 

Upgraded Underground Storage Tanks, Peer Review 

Draft, U.S. EPA/OUST, August 2004. 

PHASE-IN SCHEDULE FOR INTERSTITIAL INTEGRITY TESTS

Criteria Date by which first test must be conducted 

One or more USTs at the facility were installed on or before 12/22/1988 ..................................... One year after effective date of rule. 

No USTs at the facility were installed on or before 12/22/1988 and at least one UST at the facility was installed on or before 12/22/1998.Two years after effective date of rule. 

All USTs at the facility were installed after 12/22/1998 ................................................................... Three years after effective date of rule. 

This proposed requirement only applies 

to UST systems using interstitial 

monitoring. It does not apply to UST 

systems without secondary containment 

or those with secondary containment 

but not using interstitial monitoring for 

release detection. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

The Energy Policy Act requires states 

that receive federal Subtitle I money 

implement additional measures to 

protect groundwater, either with 

secondary containment for new and 

replaced tanks and piping or financial 

responsibility for manufacturers and 

installers. 54 of 56 states have 

implemented the secondary 

containment option. To ensure 

secondary containment is working 

properly, the integrity of the interstitial 

space needs to be tested. Therefore, EPA 

is proposing periodic interstitial 

integrity tests of the interstitial space in 

secondarily-contained UST systems 

which use interstitial monitoring for 

release detection. These systems need to 

contain a leak until interstitial 

monitoring detects the regulated 

substance. Currently, EPA has no 

requirement for ensuring the integrity of 

secondary containment areas. 

Since most states implemented the 

secondary containment requirements in 

the Energy Policy Act for most new and 

replaced tanks and piping, new and 

replaced UST systems will be 

secondarily contained with interstitial 

monitoring. This requirement signals a 

move from non-secondarily contained 

UST systems using methods of release 

detection that detect a release only after 

regulated substances have reached the 

environment to secondary containment 

with interstitial monitoring that 

identifies a problem before regulated 

substances reach the environment. 

Interstitial integrity tests will confirm 

for owners and operators that secondary 

containment will contain a leak until it 

is detected and the problem is repaired. 

Some interstitial monitoring methods 

for tanks, piping, and containment 

sumps already continuously ensure the 

interstitial area’s integrity. When an 

owner or operator uses one of these 

methods, EPA will not require periodic 

interstitial integrity tests. 

• Tanks—According to EPA’s source 

and cause of release information, tanks 

are not the leading source of 

releases 24 25 In addition, tanks are 

nearly always constructed in a factory 

under controlled conditions, making it 

less likely problems will occur in 

interstitial areas after installation. For 

these reasons, EPA proposes not to 

require owners and operators to conduct 

periodic interstitial integrity tests of 

tanks using continuous interstitial 

monitoring. Methods of continuous 

interstitial monitoring for tanks include 

liquid filled, vacuum, pressure, and 

sensors in the interstitial space. 

• Piping—EPA’s source and cause of 

release information shows that a 

significant number of releases occur 

from piping.26 27 In addition, piping and 

containment sumps are assembled in 

the field during the installation process, 

potentially creating increased 

opportunities for releases. Therefore, 

unless owners and operators use 

continuous liquid-filled, vacuum, or 

pressure interstitial monitoring for 

piping release detection, EPA is 

proposing to require periodic interstitial 

integrity testing for piping. For example, 

owners and operators who choose to use 

sensors in containment sumps for 

piping interstitial monitoring must also 

perform three year interstitial integrity 

tests of the piping interstitial space. 

• Containment sumps—Similar to 

piping, EPA’s source and cause of 

release information shows that a 

significant number of releases occur in 

containment sump areas. EPA is also 

aware of issues with the tightness of 

containment sumps. Based on this 

information, EPA is proposing owners 

and operators conduct periodic 

interstitial integrity tests of containment 

sumps used for piping interstitial 

monitoring, unless the containment 

sump has two walls and the interstitial 

space between the walls in the sump is 

continuously monitored. For example, if 

an owner or operator has a doublewalled containment sump and uses a 

sensor, vacuum, pressure, or liquidfilled interstitial area to continuously 

monitor the space between the two 

walls, then periodic interstitial integrity 

tests of that sump are not required 

under this proposal. Owners and 

operators of double-walled sumps 

without continuous interstitial 

monitoring must perform three year 

interstitial integrity tests. 

Continuous interstitial monitoring 

means the secondary containment space 

is monitored all the time by a method 

or device and owners and operators 

check the continuous monitoring 

method or device for a leak at least once 

every 30 days. In addition, owners and 

operators must immediately respond to 

any alarms they encounter. Methods of 

continuous interstitial monitoring 

include vacuum, pressure, and liquidfilled interstitial areas along with 

sensors and probes located in the 

interstitial area. 

EPA is proposing owners and 

operators conduct interstitial integrity 

tests for tanks, piping, and sumps at 

least once every three years. EPA is 

proposing this frequency because we 

believe secondarily contained UST 

systems are much less prone to releases 

than single-walled UST systems. 

However, since owners and operators 

are relying on the interstitial space to 

detect problems, the interstitial areas 

still need periodic tests to ensure proper 

operation and maintenance. A three 

year time frame is consistent with other 

testing requirements, such as cathodic 

protection testing and the proposed 

overfill prevention equipment testing. 

EPA is proposing to stagger 

implementation over a three year period 

based on the installation date of the 

oldest UST at the facility. The proposed 

phase-in will require older UST systems 

that may pose a greater risk to the 

environment to be tested first. The 

phase-in approach will allow interstitial 

tests to be spread out and reduce the 

risk of a last-minute rush of owners and 

operators obtaining tests at the end of 

the initial three-year period. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

71724 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

28Petroleum Releases At Underground Storage 

Tank Facilities In Florida, Peer Review Draft, U.S. 

EPA/OUST, March 2005. 

29California’s ‘‘Field Evaluation Of Underground 

Storage Tank System Leak Detection Sensors,’’ 

August 2002. http://www.waterboards.ca.gov/ 

water_issues/programs/ust/leak_prevention/ 

sensors/index.shtml. 

EPA is proposing owners and 

operators maintain interstitial integrity 

test records for three years for each 

regulated tank, pipe, and containment 

sump at a facility or maintain 

documentation demonstrating periodic 

interstitial integrity tests are not 

required. Documentation supporting 

that periodic interstitial integrity tests 

are not required could include: the tank 

or piping uses vacuum, pressure, or 

liquid-filled interstitial monitoring; the 

tank uses continuous interstitial sensors 

for interstitial monitoring; or the 

containment sump has two walls and 

the space between the containment 

sump walls is continuously monitored. 

In addition, EPA is proposing owners 

and operators maintain this 

documentation for three years after 

continuous interstitial monitoring ends. 

EPA is proposing owners and operators 

maintain this documentation so they 

can demonstrate to implementing 

agencies compliance with the interstitial 

integrity test requirement. This 

documentation coincides with the three 

year inspection requirements in the 

Energy Policy Act. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is a three year frequency an 

appropriate time frame for interstitial 

integrity tests? For example, should EPA 

consider more frequent tests in sensitive 

areas such as source water protection 

areas? 

• Should EPA consider owners and 

operators retain records of interstitial 

integrity tests for a different time frame? 

• Should EPA consider interstitial 

integrity tests for tanks using 

continuous interstitial sensors? Should 

EPA consider limiting this exclusion to 

discriminating sensors? 

• Is there a need for a phased-in 

schedule to implement this 

requirement? Is the three year time 

frame and phase-in proposed for owners 

and operators to begin implementing 

this requirement reasonable? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

5. Operation and Maintenance 

Requirements for Release Detection 

Equipment 

What is EPA proposing? 

In § 280.40, EPA is proposing UST 

owners and operators perform annual 

operation and maintenance tests on 

electronic and mechanical components 

of their release detection equipment to 

ensure the equipment is operating 

properly. Owners and operators will be 

required to check the following 

equipment: 

• ATG and other controllers 

Æ Test alarm; 

Æ Verify system configuration; and 

Æ Test battery back-up. 

• Probes and sensors 

Æ Inspect for residual build-up; 

Æ Ensure floats move freely; 

Æ Ensure shaft is not damaged; 

Æ Ensure cables are free of kinks, 

bends, and breaks; and 

Æ Test alarm operability and 

communication with controller. 

• Line leak detector 

Æ Simulate leak which determines 

capability to detect a leak; and 

Æ Inspect leak sensing o-ring. 

• Vacuum pumps and pressure gauges 

Æ Ensure communication with sensors 

and controller. 

EPA is proposing owners and operators 

meet this requirement according to one 

of the following: manufacturer’s 

instructions; a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory; or requirements developed 

by the implementing agency. 

EPA is proposing owners and 

operators maintain records of the annual 

operation tests for three years. At a 

minimum, records must: list each 

component tested; indicate whether 

each component met the criteria listed 

above or needed to have action taken; 

and describe any action taken to correct 

an issue. 

EPA is proposing owners and 

operators begin meeting this 

requirement no later than one year after 

the effective date of the final UST 

regulation. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is concerned about the 

performance of release detection 

equipment. Inspectors routinely find 

release detection equipment installed on 

UST systems, but that equipment is not 

properly operated and maintained. In 

addition, information from an analysis 

in Florida indicates, ‘‘Leak detection 

successfully detected 26 percent of all 

releases. Conversely, leak detection was 

specifically identified as failing to 

detect 23 percent of releases.’’ The 

analysis also says the exact reason for 

the leak detection failure could not be 

determined. However, the analysis 

provided these possible reasons, ‘‘* * * 

faulty equipment; improper installation; 

operation or maintenance; or 

insufficient performance standards.’’ 28

To increase the effectiveness of release 

detection, EPA is targeting operation 

and maintenance. 

The 1988 UST regulation in 

§ 280.40(a)(2) requires that release 

detection ‘‘Is installed, calibrated, 

operated, and maintained in accordance 

with the manufacturer’s instructions, 

including routine maintenance and 

service checks for operability or running 

condition;’’. Most owners and operators 

installed the required release detection 

equipment, but some owners and 

operators are not properly operating and 

maintaining their equipment. To 

achieve optimal performance from 

equipment and meet release detection 

requirements, it is important for UST 

system owners and operators to both 

install the equipment and properly 

operate and maintain it. In the 1988 

UST regulation, EPA did not provide 

specifics on minimum requirements to 

ensure adequate operation and 

maintenance of release detection 

equipment. As a result, operation and 

maintenance requirements vary greatly, 

even between similar types of 

equipment. 

Some manufacturers’ requirements do 

not adequately address operation and 

maintenance. For example, some 

manufacturers only recommend 

operation and maintenance checks; but 

EPA is taking the position that checks 

should be mandatory instead of 

optional. In addition, similar release 

detection components should be tested 

in a similar manner, which will increase 

the likelihood all release detection 

equipment will function at optimal 

levels for as long as possible. 

California’s in-field analysis of sensors 

used for release detection and anecdotal 

feedback supports EPA’s belief. 29

EPA is proposing this change to 

improve and standardize operation and 

maintenance for all release detection 

equipment. This proposed change will 

provide owners and operators with an 

understanding of equipment tests 

necessary to ensure equipment is 

properly operated and maintained. EPA 

is proposing a set of minimum operation 

and maintenance criteria owners and 

operators must follow for all electronicand mechanical-based release detection 

equipment. EPA is also addressing 

equipment that is neither electronically 

nor mechanically based (for example, 

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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 71725 

30National Work Group On Leak Detection 

Evaluation’s (NWGLDE) List Of Leak Detection 

Evaluations For Storage Tank Systems: http:// 

www.nwglde.org/. 

bailers and measuring sticks used for 

activities such as statistical inventory 

reconciliation [SIR]) separately under 

the walkthrough inspections section 

(see section B–1). 

EPA based these proposed operation 

and maintenance minimum 

requirements for release detection on 

common requirements and 

recommendations by various equipment 

manufacturers of similar equipment. 

EPA used the National Work Group on 

Leak Detection Evaluation’s (NWGLDE) 

list of leak detection equipment to 

identify commonly used equipment.30

In addition, EPA’s publication, 

Operating And Maintaining 

Underground Storage Tanks Systems: 

Practical Help And Checklists and 

Petroleum Equipment Institute’s 

Recommended Practices for the 

Inspection and Maintenance of UST 

Systems (RP 900) also helped establish 

proper operation and maintenance 

activities. 

Regarding our proposal to use a code 

of practice developed by a nationally 

recognized association or independent 

testing laboratory, EPA knows of one 

code of practice currently being 

developed that may address operability 

testing for release detection equipment. 

After that code of practice is final, EPA 

will review it and decide whether to 

include it in the final UST regulation. 

EPA is proposing owners and 

operators maintain records of annual 

operation tests for three years. Results of 

tests must include: a list of each 

component tested; whether it tested 

acceptable or needed action; and a 

description of any action taken to 

correct an issue. Three years worth of 

records are consistent with the three 

year inspection cycle, and content of the 

records will allow owners and operators 

to demonstrate compliance with this 

operation and maintenance 

requirement. 

Finally, EPA is allowing owners and 

operators up to one year from the 

effective date of the final UST regulation 

to meet this requirement. One year is 

consistent with the annual test 

frequency requirement already in place 

for automatic line leak detectors, and 

many third-party service providers 

nationwide already perform the testing. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Are the proposed minimum 

operation and maintenance 

requirements sufficient to cover release 

detection equipment on regulated UST 

systems? 

• Are there additional performance 

tests EPA should consider? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

C. Addressing Deferrals 

Note about the overlap of UST 

regulations and Spill Prevention Control 

and Countermeasures (SPCC) 

regulations: At the time of the 1988 UST 

regulation, facilities with an aggregate 

completely buried storage capacity 

greater than 42,000 gallons and located 

near navigable waters of the U.S. or 

adjoining shorelines were subject to 

both UST rules and SPCC rules. Since 

then, SPCC rules have been amended 

and the rule exempts completely buried 

storage tanks, as well as connected 

underground piping, underground 

ancillary equipment, and containment 

systems, when subject to the technical 

requirements of 40 CFR part 280. In 

today’s proposal, EPA proposes to 

continue to defer the aboveground 

components associated with airport 

hydrant systems and USTs with fieldconstructed tanks. Only those deferred 

aboveground components will be 

subject to SPCC requirements. EPA is 

proposing to regulate the underground 

components associated with airport 

hydrant systems and USTs with fieldconstructed tanks. In addition, EPA is 

proposing to regulate wastewater 

treatment tank systems and UST 

systems that store fuel solely for use by 

emergency power generators deferred 

under the 1988 regulation. Once the 

proposal becomes final, these UST 

systems will no longer be subject to 

SPCC requirements. 

1. Emergency Power Generator UST 

Systems 

What is EPA proposing? 

EPA is proposing to eliminate the 

current deferral in § 280.10(d) for UST 

systems storing fuel solely for use by 

emergency power generators. This 

means emergency power generator USTs 

will no longer be deferred from release 

detection requirements in 40 CFR part 

280, subpart D and will be subject to all 

UST requirements. 

In addition, EPA is proposing that, no 

later than 30 days after the effective date 

of the final UST regulation, owners of 

UST systems storing fuel solely for use 

by emergency power generators notify 

appropriate implementing agencies that 

their systems exist. 

EPA is proposing owners and 

operators of UST systems storing fuel 

solely for use by emergency power 

generators begin meeting these 

requirements as follows: 

• For systems installed after the 

effective date of the final UST 

regulation, at the time of installation. 

• For systems installed on or before 

the effective date of the final UST 

regulation, within one year of the 

effective date of the final UST 

regulation. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing to regulate UST 

systems storing fuel solely for use by 

emergency power generators because 

our previous rationale for deferring 

release detection no longer applies. To 

allow time for developing workable 

release detection requirements, EPA in 

the 1988 UST regulation deferred 

release detection requirements for UST 

systems storing fuel solely for use by 

emergency power generators. The 1988 

UST regulation preamble indicated that 

monthly monitoring requirements were 

unworkable because these tanks often 

were located at unmanned stations in 

remote areas and visited infrequently. 

EPA always intended for these 

systems to meet release detection 

requirements when appropriate release 

detection methods became available. 

Since the 1988 UST regulation, release 

detection technologies have matured 

greatly. In addition, technology is now 

available to perform release detection at 

remote sites. Emergency generator tanks 

and piping can now be monitored for 

releases by the majority of methods 

listed in § 280.43. EPA estimates about 

30 percent of active UST systems storing 

fuel solely for use by emergency power 

generators already have release 

detection. 

Effective remote monitoring methods 

for release detection are now available 

and used to monitor unmanned UST 

systems storing fuel solely for use by 

emergency power generators. Numerous 

contractors perform remote monitoring 

for releases at these unmanned sites. 

Remote monitors transmit visual or 

audible alarms to a receiving console at 

a manned location when there is a 

suspected or confirmed release. This 

provides owners and operators with 

real-time release detection data for 

immediate response to suspected or 

confirmed releases at sites with 

unmanned UST systems storing fuel 

solely for use by emergency power 

generators. 

Emergency power generator UST 

systems are located throughout the 

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71726 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

31 Industrial Economics, Inc., ‘‘Detailed 

Assessment of UST Universe by Tank Use and 

Industry Sector,’’ Work Assignment 1–15, Task 6, 

January 23, 2009. 

country. EPA’s review of several state 

databases revealed these systems are 

located at hospitals, universities, 

communication utilities, military 

installations, and other locations relying 

on backup power sources. EPA 

estimates UST systems storing fuel 

solely for use by emergency power 

generators now represent approximately 

3 percent of the active tank 

population.31

Additionally, 21 states currently 

require release detection for emergency 

power generator UST systems. 

Automatic tank gauging and secondary 

containment with interstitial monitoring 

are the most common release detection 

methods used for tanks associated with 

these systems. Line tightness testing, 

line leak detectors, or secondary 

containment with interstitial monitoring 

are the most common release detection 

methods used for piping. Note that safe 

suction piping does not require release 

detection. With technology now 

available to detect releases from 

emergency power generator UST 

systems and because these systems pose 

the same risk to human health and the 

environment as any other UST system, 

EPA is proposing to remove the deferral 

from release detection. 

EPA is proposing owners and 

operators of emergency power generator 

UST systems installed on or before the 

effective date of the final UST regulation 

begin performing release detection 

within one year of the effective date of 

the final regulation. EPA is taking the 

position that one year is reasonable 

because these USTs are fully regulated 

except for release detection, and some 

are already performing release 

detection. After the effective date of the 

final regulation, all emergency power 

generator UST systems must include 

release detection when installed. 

Notification 

To make implementing agencies 

aware that emergency power generator 

UST systems exist, EPA is proposing 

owners of these systems submit a onetime notification to the implementing 

agency. Owners must notify within 30 

days of the effective date of the final 

regulation. This will allow 

implementing agencies to include 

emergency power generator UST 

systems in their inventories. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is EPA’s estimate of 3 percent for 

UST systems storing fuel solely for use 

by emergency power generators 

accurate? 

• Are there technical concerns EPA 

should address in requiring release 

detection for emergency power 

generator UST systems? 

• Is EPA’s estimate of 30 percent 

installed release detection on UST 

systems storing fuel solely for use by 

emergency power generators accurate? 

• How many UST facilities have 10 or 

more emergency power generator UST 

systems? Who owns these facilities? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

2. Airport Hydrant Fuel Distribution 

Systems 

What is EPA proposing? 

EPA is proposing to regulate currently 

deferred airport hydrant fuel 

distribution systems (also referred to as 

airport hydrant systems). This means 

airport hydrant systems will no longer 

be deferred from the requirements of 40 

CFR part 280, subparts B (UST Systems: 

Design, Construction, Installation and 

Notification); C (General Operating 

Requirements); D (Release Detection); E 

(Release Reporting, Investigation, and 

Confirmation); G (Out-of-Service UST 

Systems and Closure); and H (Financial 

Responsibility). 

Airport hydrant systems installed on 

or before the effective date of the final 

UST regulation must begin meeting the 

requirements of subparts B (except 

§ 280.22) and C within three years of the 

effective date of the final UST 

regulation, subpart D according to the 

schedule in the table below, and 

§ 280.22 of subpart B along with 

subparts E, G, and H on the effective 

date of the final UST regulation. Airport 

hydrant systems installed after the 

effective date of the final UST regulation 

must meet these requirements at the 

time of installation. Airport hydrant 

systems with aboveground storage tanks 

(ASTs) directly connected to the 

underground hydrant piping are not 

regulated UST systems under 40 CFR 

part 280, unless 10 percent or more of 

the total capacity of the system, 

including underground piping, is 

beneath the surface of the ground. 

SCHEDULE FOR PHASE IN OF SUBPART D 

Component and type of release detection used Time frame 

(after [effective date of rule]) Description of requirement 

Piping using periodic pressurized 

bulk line tightness testing.

Within three years. 

Between years three and six 

Conduct one piping tightness test according to the bulk line tightness 

testing requirement using the maximum detectable leak rates for 

semiannual testing. For bulk piping segments not capable of meeting the 3.0 gallon per hour leak rate, owners and operators may 

use a leak rate of up to 6.0 gallons per hour. 

Between years six and seven. Conduct one piping tightness test according to the bulk line tightness 

testing requirement using the maximum detectable leak rates for 

semiannual testing. 

After year seven. Begin conducting piping tightness testing according to the bulk line 

tightness testing requirement. 

All other piping and tank release 

detection methods.

Within three years. Perform release detection according to this subpart. 

EPA is proposing to define an airport 

hydrant fuel distribution system as an 

UST system that is a combination of one 

or more tanks directly connected to 

underground hydrant piping used to 

fuel aircraft. These systems do not have 

a dispenser at the end of the piping run, 

but rather a hydrant (fill stand). If an 

AST is feeding an intermediary tank or 

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tanks, this proposed definition does not 

include the AST, but does include all 

underground piping entering and 

leaving intermediary tanks and the 

intermediary tank(s). Intermediary tanks 

are those tanks directly connected to the 

hydrant piping. 

Release Detection—Tanks 

EPA is proposing airport hydrant 

system tanks installed prior to the 

effective date of the final UST regulation 

meet these requirements: 

• The following tanks must be 

monitored using release detection 

methods specified in § 280.43. 

Æ Shop fabricated tanks. 

Æ Field-constructed tanks with a 

capacity less than or equal to 50,000 

gallons. 

• Field-constructed tanks with 

capacity greater than 50,000 gallons 

must either be monitored using release 

detection methods specified in § 280.43 

or use one of the alternatives for tanks 

listed in section C–3—UST Systems 

With Field-Constructed Tanks. 

EPA is proposing new or replaced 

airport hydrant system tanks installed 

after the effective date of the final UST 

regulation be secondarily contained and 

perform interstitial monitoring 

according to § 280.43(g). 

Release Detection—Piping 

EPA is proposing airport hydrant 

system piping meet these release 

detection requirements: 

• Piping must be monitored using 

release detection methods specified in 

§ 280.44; or 

• Use one of these alternatives: 

Perform a semiannual or annual bulk 

line tightness test at or above operating 

pressure in accordance with the table 

below. Bulk piping segments ≥100,000 

gallons not capable of meeting the 

maximum 3.0 gallon per hour leak rate 

for the semiannual test may be tested at 

a leak rate up to 6.0 gallons per hour 

according to the schedule in § 280.40(c): 

MAXIMUM DETECTABLE LEAK RATE PER TEST SECTION VOLUME

Test section volume 

(gallons) 

Semiannual test 

maximum detectable 

leak rate 

(gallons per hour) 

Annual test maximum 

detectable leak rate 

(gallons per hour) 

<50,000 .......................................................................................................................................... 1.0 0 .5 

≥50,000 to <75,000 ....................................................................................................................... 1.5 0 .75 

≥75,000 to <100,000 ..................................................................................................................... 2.0 1 .0 

≥100,000 ........................................................................................................................................ 3.0 1 .5 

The bulk line tightness test must be 

capable of detecting the maximum 

detectible leak rate listed in the table 

above with a probability of detection of 

0.95 and a probability of false alarm of 

0.05. 

Æ Perform continuous interstitial 

monitoring designed to detect a release 

from any portion of the underground 

piping that routinely contains product 

according to § 280.43(g). 

Æ Use an automatic line leak detector 

that alerts the presence of a leak by 

restricting or shutting off flow of 

regulated substances through piping or 

triggering an audible or visual alarm. 

This method may be used only if it can 

detect a leak of three gallons per hour 

at 10 pounds per square inch line 

pressure within one hour or equivalent. 

When using this method, also: 

–At least every three months, perform 

interstitial monitoring, designed to 

detect a release from any portion of the 

underground piping that routinely 

contains product, according to 

§ 280.43(g); and 

–Conduct an annual leak detector 

operation test according to 

§ 280.40(a)(3). 

Æ The implementing agency may 

approve another method if the owner 

and operator can demonstrate the 

method can detect a release as 

effectively as any of the other three 

methods. In comparing methods, the 

implementing agency shall consider the 

size of release the method can detect 

and frequency and reliability of 

detection. Owners and operators must 

comply with conditions imposed by the 

implementing agency. 

All recordkeeping requirements in 

§ 280.45 apply to these proposed release 

detection methods. 

Release Prevention 

EPA is proposing airport hydrant 

systems meet corrosion protection, spill, 

and overfill requirements. For corrosion 

protection, EPA is proposing airport 

hydrant systems meet one of these: 

• The new tank and piping standards 

described in § 280.20; or 

• Airport hydrant systems installed 

on or before the effective date of the 

final UST regulation can be constructed 

of metal and cathodically protected 

according to a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory and meet the following: 

Æ Field installed cathodic protection 

systems must be: designed by a 

corrosion expert; designed to allow for 

the determination of current operating 

status for impressed current systems; 

and operated and maintained in 

accordance with § 280.31 or guidelines 

established by the implementing 

agency; and 

Æ Tanks greater than 10 years old 

without cathodic protection must be 

assessed to ensure they are structurally 

sound and free of corrosion holes prior 

to adding cathodic protection. The 

assessment must be by internal 

inspection or another method the 

implementing agency determines 

adequately assesses the tank for 

structural soundness and corrosion 

holes. 

EPA is proposing airport hydrant 

systems installed on or before the 

effective date of the final UST regulation 

that are not upgraded according to 

§ 280.21 within three years of the 

effective date of the final UST regulation 

be permanently closed according to 

§ 280.70. EPA is proposing internal 

lining not be allowed for meeting the 

corrosion protection upgrade 

requirement. 

EPA is proposing to exclude new and 

replaced piping in airport hydrant 

systems from secondary containment 

requirements in § 280.20(b). 

Notification 

EPA is proposing that, no later than 

30 days after the effective date of the 

final UST regulation, owners of 

regulated airport hydrant systems 

installed prior to the effective date of 

final UST regulation notify appropriate 

implementing agencies that their 

systems exist. 

Financial Responsibility 

EPA is proposing airport hydrant 

systems no longer be deferred. This 

means airport hydrant systems that have 

not been permanently closed will be 

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32Spill Prevention, Control, And Countermeasure 

Rule. http://www.epa.gov/oem/content/spcc/ 

index.htm. 

33New Hampshire Department of Environmental 

Services, Air Resources Division. 2009. Permit 

Application Review Summary, Former Pease AFB 

Remediation Project, 09–0113. 10 March 2010, see: 

http://www2.des.state.nh.us/OneStopPub/Air/ 

330159094909-0113TypeSummary.pdf. 

34Hilton, Scott. Site Summaries Pease Air Force 

Base Newington/Portsmouth. 2008. NH Department 

of Environmental Services. 10 March 2010 see: 

http://des.nh.gov/organization/divisions/waste/ 

hwrb/fss/superfund/summaries/pease.htm. 

35Example Tank and Piping Configurations for 

Airport Hydrant Systems developed by EPA/OUST. 

subject to financial responsibility 

requirements in subpart H. 

Deferred Components 

Aboveground components of airport 

hydrant systems are currently regulated 

by SPCC because they are not fully 

regulated under the UST regulations.32

EPA is proposing to continue deferring 

aboveground tanks associated with 

airport hydrant systems that meet the 

UST system definition from the 

requirements of subparts B, C, D, E, and 

G. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing to regulate airport 

hydrant systems because a release from 

one of these systems may pose a 

significant threat to human health and 

the environment. In addition, 

technology is now available for release 

prevention and adequate release 

detection monitoring. In some cases 

airport hydrant system piping stores 

millions of gallons of fuel; airport 

hydrant systems handle large volumes 

of regulated substances on a daily basis. 

Leaks from underground piping and 

other appurtenances can contaminate 

subsurface soil beneath the airport 

apron and runways, groundwater, and 

nearby surface water. Even though there 

is a small universe of these systems, 

mainly owned by the Department of 

Defense (DoD), evidence shows a 

substantial release can have a major 

impact on the environment. 

For example, at Pease Air Force Base, 

jet fuel was delivered to the runway 

apron via an underground fueling 

system. Throughout the life of the 

system, releases contaminated soils and 

groundwater, forming plumes of 

regulated substances in the 

groundwater.33 A site release study 

identified 60 to 70 release points with 

varying degrees of severity along the 

refueling system line. Free product was 

found under the apron when the 

systems were closed.34 There are no 

available historical records showing the 

sources of release or the volumes of 

regulated substances released. However, 

the presence of soil and groundwater 

contamination poses a significant threat 

to public health and the environment. 

In the 1988 UST regulation, EPA 

deferred airport hydrant systems 

because release detection and 

prevention technologies were not 

readily available for these unique 

systems. Given current availability of 

those technologies, requiring release 

prevention equipment and regular 

release detection tests are keys to 

preventing and quickly identifying 

releases before they contaminate the 

surrounding environment. Additionally, 

16 state UST programs which include 

approximately 40 percent of the existing 

universe of these UST systems, no 

longer defer airport hydrant systems and 

now regulate them. 

EPA is proposing to define airport 

hydrant system in order to clarify which 

components of these systems will be 

regulated. There is currently some 

uncertainty about what an airport 

hydrant system is because of the lack of 

a federal definition and inconsistencies 

between different state definitions. 

Today’s proposed definition of airport 

hydrant system clarifies which 

components will be regulated. Examples 

of tank and piping configurations for 

airport hydrant systems can be found in 

the docket for this proposed 

rulemaking.35

EPA is proposing airport hydrant 

systems installed on or before the 

effective date of the final UST regulation 

begin meeting the requirements of 

subparts B (except § 280.22) and C 

within three years of the effective date 

of the final UST regulation, subpart D 

according to the phase in schedule in 

the table above, and § 280.22 of subpart 

B along with subparts E, G, and H on the 

effective date of the final UST 

regulation. Airport hydrant systems 

installed after the effective date of the 

final UST regulation must meet all 

requirements at installation. Three years 

allows owners and operators enough 

time to implement the requirements of 

subparts B (except § 280.22) and C. EPA 

is providing a phase in period for bulk 

line tightness testing in subpart D to 

allow owners and operators ample time 

to upgrade their piping systems and 

meet the leak rate criteria. EPA is 

proposing to allow owners and 

operators for the first six years (two test 

periods) to meet a higher threshold of 

up to 6.0 gallons per hour for those 

piping segments that cannot meet the 

more stringent maximum 3.0 gallons per 

hour threshold due to technical reasons. 

These technical reasons include 

exceeding capabilities of currently 

available pressure-based methods to 

achieve the required leak rate. Currently 

available methods are capable of testing 

larger volume test sections to a leak rate 

of 6.0 gallons. The higher threshold of 

6.0 gallons per hour provides for use of 

existing test methods during the first six 

year period. Six years will provide 

owners and operators time to upgrade 

their piping systems to meet the up to 

3.0 gallon per hour threshold for 

semiannual testing. Between years six 

and seven of the phase in, EPA proposes 

to allow owners and operators to 

conduct one additional bulk tightness 

test that meets the semiannual testing 

threshold. Beginning in year seven, 

owners and operators must begin 

meeting the semiannual and annual 

bulk line tightness testing requirements 

described earlier in this section. For all 

other tank and piping release detection 

options, EPA is proposing a three year 

phase in because these methods will not 

require significant construction or 

upgrades for implementation. Finally, 

owners and operators can implement 

the requirements of § 280.22 of subpart 

B along with subparts E, G, and H 

beginning on the effective date of the 

final UST regulation because upgrades 

or special equipment are not needed to 

meet the requirements in these subparts. 

Release Detection 

EPA is proposing release detection for 

airport hydrant systems because, unlike 

in the 1980s, release detection 

technologies are now available. Airport 

hydrant systems typically consist of a 

series of large diameter shop-fabricated 

tanks; although some airport hydrant 

systems use field-constructed tanks. 

EPA is proposing release detection 

requirements for shop-fabricated tanks 

and field-constructed tanks in airport 

hydrant systems. See section C–3 for 

proposed release detection requirements 

for UST systems with field-constructed 

tanks. 

EPA discussed airport hydrant 

systems in the 1988 UST regulation 

preamble. These systems were very 

large, contained great volumes of fuel 

(capacities in the millions of gallons), 

and consisted of miles of piping that 

was typically eight to 24 inches in 

diameter. Airport hydrant systems 

typically had cathodic protection and 

were monitored for releases 

periodically. Inventory control was 

often used, but the sensitivity of this 

technique was limited due to the large 

volume airport hydrant systems 

typically handled. No single leak test 

appeared to be an industry standard. 

Between proposing and finalizing the 

1988 UST regulation, EPA became 

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36National Work Group On Leak Detection 

Evaluation’s (NWGLDE) List Of Leak Detection 

Evaluations For Storage Tank Systems: http:// 

www.nwglde.org/. 

37 Defense Logistics Agency Energy was formerly 

known as Defense Energy Support Center (DESC). 

38See section F of this preamble and Regulatory 

Impact Analysis (RIA) for the proposed rule, 

available as a separate document in the docket, for 

information on the cost differences between 

meeting conventional release detection 

requirements and the proposed alternative 

requirements for airport hydrant systems and UST 

systems with field-constructed tanks. 

39Owners and operators of bulk piping systems 

with test section volumes of 100,000 gallons or 

greater, due to technical reasons discussed in this 

section, may test their systems at a higher threshold 

of up to 6.0 gallons per hour within the six year 

phase-in period. 

aware of several airport hydrant system 

leaks that harmed the environment. 

However, limited information kept EPA 

from realizing the extent of airport 

hydrant system problems. At the time, 

EPA believed release detection was not 

feasible for airport hydrant systems. To 

allow more time to gather information, 

EPA deferred airport hydrant systems in 

the 1988 regulation from release 

detection requirements in subpart D as 

well as subparts B, C, E, G, and H 

requirements. 

Over the last 20 years, the petroleum 

services industry developed release 

detection monitoring technologies for 

airport hydrant systems. NWGLDE’s list 

in Large Diameter Line Leak Detection 

Methods (6 Inches Diameter Or 

Above) 36 identifies methods capable of 

detecting releases from airport hydrant 

systems. 

EPA contacted several vendors to 

determine strengths and limitations of 

release detection methods for airport 

hydrant systems. EPA also talked with 

DoD’s Defense Logistics Agency (DLA) 

Energy 37 about their challenges in 

addressing release detection 

requirements in states, such as 

California, which do not defer airport 

hydrant systems from release detection. 

DLA Energy also monitors airport 

hydrant systems in other states, which 

provides them with significant 

information about airport hydrant 

system release detection. 

EPA acknowledges airport hydrant 

systems vary greatly and most of these 

systems cannot meet underground 

piping release detection requirements in 

the 1988 UST regulation because of 

issues such as time to conduct the test 

and leak rate thresholds. Nonetheless, 

other release detection methods are 

currently available to monitor airport 

hydrant systems. EPA is not proposing 

release detection methods monitor at 

the same leak rate or frequency as 

pressurized piping systems at retail 

service stations. Standard release 

detection systems can successfully test 

and detect releases on USTs and 

pressurized piping at retail service 

stations, but cannot achieve the same 

accuracy within a reasonable time frame 

on underground piping in airport 

hydrant systems. The large diameters 

and varying pipe lengths in airport 

hydrant systems introduce variables that 

prohibit accurate monitoring at leak 

rates within a reasonable time frame 

required in the 1988 UST regulation. 

Compared to typical retail service 

stations, airport hydrant systems have 

large product volume throughputs. The 

1988 UST regulation release detection 

test methods are limited by volume. To 

produce accurate test results, 

underground hydrant system piping 

needs to be isolated in appropriately 

sized segments. Some airport hydrant 

systems have numerous isolation points 

with available connections for release 

detection equipment; others have up to 

one-half mile between underground 

piping segments available for accurate 

testing. The greater the volume of a 

segment, the more time it takes to obtain 

a valid result at a given leak rate. 

Product temperature fluctuations 

present challenges for release detection 

testing of airport hydrant system piping. 

As temperatures fluctuate, product 

expands or contracts, increasing or 

decreasing product volume and 

pressure. Fluctuating line pressure 

during a release detection test can mask 

an existing release or falsely indicate 

one occurred. To lessen this, an out of 

service period when testing large 

diameter airport hydrant piping could 

range from one to several days after the 

last product transfer in order to meet 

maximum leak detection rates in the 

1988 UST regulation. Removing airport 

hydrant systems from service for these 

extended periods will greatly impede 

their purpose. In contrast, out of service 

periods on underground piping at retail 

service stations can last up to several 

hours after the last product transfer 

prior to pressure testing. 

Although technology is available, it 

would be cost prohibitive and require 

significant facility down time for 

owners and operators to monitor airport 

hydrant systems for releases at the rates 

and frequencies required in the 1988 

UST regulation.38 As a result, EPA is 

proposing several options for owners 

and operators to meet the release 

detection requirement. These options 

provide flexibility for a wide variety of 

airport hydrant systems. In those 

instances where airport hydrant systems 

can meet the release detection methods 

in § 280.43 and § 280.44, owners and 

operators may use those methods. EPA 

is also proposing the following four 

alternatives to meet the airport hydrant 

system release detection requirement for 

piping. 

• Perform semiannual or annual bulk 

line testing at or above operating 

pressure with a probability of detection 

of 0.95 and a probability of false alarm 

of 0.05. EPA thinks this will be the most 

frequently used method due to cost and 

minimal impact on down time for the 

piping system. It allows owners and 

operators to meet a variable leak rate 

based on piping test section volume. 

The leak rate ranges from one to three 

gallons 39 per hour, depending on 

piping volume for semiannual testing 

and from 0.5 to 1.5 gallons per hour for 

annual testing. EPA is proposing three 

gallons per hour as the maximum 

threshold because the majority of 

available bulk line testing methods are 

capable of meeting this leak detection 

rate. To effectively detect leaks from the 

pressurized piping systems, industry 

practice involves performing pressurebased testing at levels above standard 

operating pressure. EPA is proposing 

requiring a test pressure at or above 

operating pressure in consideration of 

these bulk piping systems typically 

operating at pressures much higher than 

conventional gasoline stations. Testing 

at 1.5 times operating pressure may not 

be practical or safe for these piping 

systems. The probabilities of detection 

and false alarm are consistent with the 

line leak detection requirements in the 

1988 UST regulation. 

• Use continuous interstitial 

monitoring—This monitoring method is 

designed to detect a release from any 

portion of the underground piping that 

routinely contains product; it must 

operate in an uninterrupted manner. 

EPA considered requiring an automatic 

line leak detector in combination with 

this alternative method, similar to 

conventional pressurized piping 

requirements in the 1988 UST 

regulation. However, conventional line 

leak detectors today cannot properly 

operate on bulk pressurized piping in 

airport hydrant systems. 

• Use an automatic line leak 

detector—Conventional pressurized 

piping systems operate at a significantly 

lower pressure than airport hydrant 

systems. In addition, EPA is not aware 

of a line leak detector that adequately 

detects releases on airport hydrant 

systems. Yet because some states 

regulate airport hydrant systems and 

industry has experience with these 

systems, comparable release detection 

technology may be developed in the 

future. With that in mind, EPA is 

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40 DOD’s DLA Energy, ‘‘Response to EPA— 

Release Detection Point Paper,’’ dated 03/10. 

41LUSTLINE, Bulletin 38, June 2001. http:// 

www.neiwpcc.org/lustline/. 

42Wisconsin Department Of Commerce Web site: 

http://www.commerce.state.wi.us/er/pdf/bst/ 

ProgramLetters_PL/ER-BST-PL-LINING.pdf. 

43LUSTLINE, Bulletin 30, September 1998. 

http://www.neiwpcc.org/lustline/. 

proposing line leak detectors be capable 

of detecting a release rate of three 

gallons per hour at 10 pounds per 

square inch line pressure within one 

hour or equivalent. This is consistent 

with the 1988 UST regulation. To detect 

a release from any portion of the 

underground piping that routinely 

contains product, EPA is proposing to 

combine this alternative with interstitial 

monitoring performed at least once 

every three months. This combination 

will quickly detect catastrophic releases 

while checking for much smaller 

problems on a less frequent—every 

three month—basis. Owners and 

operators will be required to conduct an 

annual test of the line leak detector’s 

operation according to the final UST 

regulation. See section B–5 for more 

information on the annual test. 

• Approval by the implementing 

agency of another method if the owner 

and operator can demonstrate that the 

method can detect a release as 

effectively as any of the methods listed 

above—The implementing agency must 

consider the size of the release that the 

method can detect as well as the 

frequency and reliability of detection 

when comparing methods. Owners and 

operators must comply with any 

conditions imposed by the 

implementing agency on the method’s 

use. 

Release Prevention 

In § 280.20, EPA is proposing new or 

replaced tanks and piping have 

secondary containment with interstitial 

monitoring. Airport hydrant systems’ 

piping ranges from eight to 24 inches in 

diameter with very long lengths, 

sometimes miles. In contrast, 

pressurized piping at a typical retail gas 

station is two inches in diameter with 

relatively short lengths. 

EPA discussed with DLA Energy and 

industry the feasibility of installing 

secondary containment on piping 

associated with airport hydrant systems. 

These systems, primarily located on 

military installations, are complex and 

lack similarity. EPA is taking the 

position that installing secondary 

containment on airport hydrant system 

piping may be impracticable. 

To detect a leak, secondary 

containment must be a liquid tight 

barrier designed to hold the leak 

between the tank and the barrier. Piping 

is sloped in fractions of an inch per foot 

of piping run to direct a leak toward the 

interstitial monitor. Because airport 

hydrant system piping lengths can 

typically be thousands of feet, it would 

be very difficult to install a system with 

enough slope that could adequately 

monitor the lowest point of a piping 

run. In addition, variable sized fittings 

are needed to join different diameters of 

piping, increasing the complexity of 

installing secondary containment. 

Finally, airport hydrant system piping is 

normally constructed of steel. 

Condensation can accumulate between 

the inner and outer walls, promoting 

corrosion of both pipe walls in the 

interstitial space and increasing the 

likelihood of a release to the 

environment. 

EPA acknowledges engineering and 

design challenges (that is, varying 

piping diameter and length, along with 

corrosion) that can occur when 

providing secondary containment for 

piping associated with airport hydrant 

systems.40 Therefore, EPA is proposing 

not to require this piping meet 

secondary containment requirements. 

However, EPA is proposing new and 

replaced underground tanks associated 

with airport hydrant systems meet 

secondary containment requirements. 

See section A–2 for more information 

about proposed secondary containment 

requirements for tanks. 

As with all other regulated UST 

systems, EPA is proposing all airport 

hydrant systems meet corrosion 

protection requirements. Because 

interim prohibition has been in effect 

since May 1985, these systems generally 

are already equipped with corrosion 

protection (that is, constructed of: noncorrodible material; coated and 

cathodically protected steel; fiberglass 

reinforced plastic; or steel tank clad 

with fiberglass reinforced plastic). 

EPA is proposing not to allow adding 

internal lining as a means of corrosion 

protection for tanks in airport hydrant 

systems that are not already upgraded. 

In the 1988 UST regulation, EPA 

allowed internal lining as a corrosion 

protection upgrade, but stated in the 

preamble that internal lining of steel 

tanks was a temporary upgrade to meet 

corrosion protection requirements, only 

if the lining continued meeting original 

design specifications. After 1998, if an 

inspected lining did not meet original 

design specifications and could not be 

repaired according to industry codes, it 

no longer met the upgrade requirements 

and had to be replaced. In addition, 

lining inspections show there are issues 

with internal linings.41 Reports of 

premature failures due to improper 

installation cause additional concerns 

about the long-term integrity of the 

lining.42 A study of lined tanks up to12 

years old concluded that 44 percent of 

tanks’ linings were cracked, discolored, 

and flaked from tank walls.43 If internal 

lining fails, the chance of a leak into the 

environment is greater when there is no 

external corrosion protection on the 

tank. Because of these concerns, EPA is 

proposing internal lining not be an 

option for meeting the corrosion 

protection requirements for tanks in 

airport hydrant systems. 

As with all other regulated UST 

systems, EPA is proposing airport 

hydrant systems meet spill and overfill 

requirements to prevent releases to the 

environment. After discussion with 

industry and DLA Energy, EPA is taking 

the position that existing airport 

hydrant systems are already equipped 

with spill prevention devices that will 

adequately prevent spills and overfills. 

Airport hydrant systems installed on 

or before the effective date of the final 

UST regulation that do not meet the 

upgrade requirements within three years 

after the effective date of the rule must 

be permanently closed according to 

§ 280.70. EPA is requiring permanent 

closure to prevent releases to the 

environment from airport hydrant 

systems that have not been upgraded. 

Notification 

To make implementing agencies 

aware airport hydrant systems exist, 

EPA is proposing owners of these 

systems submit a one-time notification 

to the implementing agency. Owners 

must notify within 30 days of the 

effective date of the final regulation. 

This will allow implementing agencies 

to include airport hydrant systems in 

their inventories. 

Financial Responsibility 

Because EPA is proposing to 

eliminate the deferral for airport 

hydrant systems, they will no longer be 

exempt from financial responsibility 

requirements in subpart H. Owners and 

operators will be required to comply by 

the effective date of the final UST 

regulation. The 1988 UST financial 

responsibility regulation exempts state 

and federal entities. Therefore, federal 

and state owners and operators of 

airport hydrant systems will not have to 

meet the financial responsibility 

requirement. Nearly all airport hydrant 

systems are owned by the federal 

government. 

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44Overview Of Oil Pollution Prevention 

Regulations. http://www.epa.gov/oem/content/ 

lawsregs/opprover.htm. 

45Spill Prevention, Control, And Countermeasure 

Rule. http://www.epa.gov/oem/content/spcc/ 

index.htm. 

Deferred Components 

EPA is proposing to continue 

deferring aboveground tanks associated 

with airport hydrant systems from the 

requirements of subparts B, C, D, E, and 

G. EPA regulates underground storage 

tanks and piping through 40 CFR part 

280 and aboveground tanks through 40 

CFR part 112 (Oil Pollution Prevention). 

Facilities with 1,320 gallons of 

aboveground oil storage capacity that 

could reasonably be expected to 

discharge oil into navigable waters or 

adjoining shoreline are subject to the 

SPCC regulation, under the authority of 

the Clean Water Act (CWA).44 The SPCC 

regulation includes requirements for oil 

spill prevention, preparedness, and 

response to prevent oil discharges to 

navigable waters and adjoining 

shorelines.45 The SPCC regulation 

requires periodic integrity testing and 

inspection of bulk storage containers 

and periodic integrity testing and leak 

testing of valves and piping associated 

with containers. The SPCC regulation 

also requires regulated facilities prepare 

and maintain a written plan that 

includes measures to prevent, prepare 

for, and respond to oil discharges that 

threaten navigable waters and adjoining 

shorelines. For these reasons, we believe 

the SPCC regulation is the most effective 

means of addressing aboveground tanks 

associated with airport hydrant systems. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Are the release detection options 

and time frames appropriate and 

sufficient? 

• Is the performance requirement of 

three gallons per hour at 10 pounds per 

square inch line pressure within one 

hour or equivalent proposed for line 

leak detectors for bulk piping 

appropriate? 

• Should EPA consider including 

specific requirements for nonpressurized piping tightness testing 

methods such as chemical marker 

methods? If so, what should those 

requirements be? 

• Are there other release detection 

options EPA should consider? 

• In order to address potential 

concerns associated with over 

pressurizing bulk piping systems, EPA 

proposed testing at the system’s 

operating pressure instead of above it. 

EPA understands there are industry 

standards that recommend testing above 

operating pressure. Is testing these 

systems at operating pressure sufficient? 

Please provide specific detail to 

accompany your answer. 

• Is the definition of airport hydrant 

fuel distribution system clear and 

appropriate? 

• Are you aware of any releases from 

airport hydrant systems? If so, what 

were the sources, causes, and impacts to 

the environment? 

• Should EPA consider revising the 

date in 280.73 for previously deferred 

UST systems? Revision of this date 

would mean that these UST systems 

closed prior to the effective date of the 

final rule would not have to meet 

Subpart G unless the implementing 

agency directs otherwise based on a 

current or potential threat to human 

health and the environment. How many 

of these UST systems have been closed 

since December 22, 1988? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

3. UST Systems With Field-Constructed 

Tanks 

What is EPA proposing? 

EPA is proposing to regulate currently 

deferred UST systems with fieldconstructed tanks. This means fieldconstructed tanks will no longer be 

deferred from the requirements of 40 

CFR part 280, subparts B (UST Systems: 

Design, Construction, Installation and 

Notification), C (General Operating 

Requirements), D (Release Detection), E 

(Release Reporting, Investigation, and 

Confirmation), G (Out-of-Service UST 

Systems and Closure), and H (Financial 

Responsibility). 

UST systems with field-constructed 

tanks installed on or before the effective 

date of the final UST regulation must 

begin meeting the requirements of 

subparts B (except § 280.22) and C 

within three years of the effective date 

of the final UST regulation, subpart D 

according to the schedule in the table 

below, and § 280.22 of subpart B along 

with subparts E, G, and H on the 

effective date of the final UST 

regulation. UST systems with fieldconstructed tanks installed after the 

effective date of the final UST regulation 

must meet these requirements at the 

time of installation. 

SCHEDULE FOR PHASE IN OF SUBPART D 

Component and type of release detection used Time frame (after 

[effective date of rule ]) 

Description of 

requirement 

Piping using periodic pressurized 

bulk line tightness testing.

Within three years. 

Between years three and six. 

Conduct one piping tightness test according to the bulk line tightness 

testing requirement using the maximum detectable leak rates for 

semiannual testing. For bulk piping segments not capable of meeting the 3.0 gallon per hour leak rate, owners and operators may 

use a leak rate of up to 6.0 gallons per hour. 

Between years six and seven. Conduct one piping tightness test according to the bulk line tightness 

testing requirement using the maximum detectable leak rates for 

semiannual testing. 

After year seven. Begin conducting piping tightness testing according to the bulk line 

tightness testing requirement. 

All other piping and tank release 

detection methods.

Within three years. Perform release detection according to this subpart. 

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46 Virginia Department of Environmental Quality. 

Release Detection—Tanks 

EPA is proposing that UST systems 

with field-constructed tanks installed 

prior to the effective date of the final 

UST regulation meet these release 

detection requirements: 

• Field-constructed tanks with 

capacity less than or equal to 50,000 

gallons must be monitored using the 

release detection methods in § 280.43. 

• Field-constructed tanks with a 

capacity greater than 50,000 gallons 

must either be monitored using release 

detection methods in § 280.43 or use 

one of these alternatives: 

Æ Conduct an annual bulk tank 

tightness test that can detect a 0.5 gallon 

per hour leak rate; 

Æ At least once every 30 days, use an 

automatic tank gauging system to 

perform release detection, which can 

detect a leak rate of one gallon per hour 

or less. At least every three years, this 

method must be combined with a bulk 

tank tightness test that can detect a 0.2 

gallon per hour leak rate; 

Æ At least once every 30 days, use an 

automatic tank gauging system to 

perform release detection, which can 

detect a leak rate of two gallons per hour 

or less. At least every two years, this 

method must be combined with a bulk 

tank tightness test that can detect a 0.2 

gallon per hour leak rate; or 

Æ The implementing agency may 

approve another method if the owner 

and operators can demonstrate the 

method can detect a release as 

effectively as any of the other three 

methods. In comparing methods, the 

implementing agency shall consider the 

size of release the method can detect 

and frequency and reliability of 

detection. Owners and operators must 

comply with conditions imposed by the 

implementing agency. 

All bulk tank tightness testing must be 

capable of detecting leak rates with a 

probability of detection of 0.95 and a 

probability of false alarm of 0.05. 

All recordkeeping requirements in 

§ 280.45 apply to these proposed release 

detection methods. 

Tanks associated with new or 

replaced UST systems with fieldconstructed tanks installed after the 

effective date of the final UST regulation 

must be secondarily contained and 

perform interstitial monitoring 

according to § 280.43(g). 

Release Detection—Piping 

EPA is proposing underground piping 

of UST systems with field-constructed 

tanks meet the release detection 

requirements for hydrant piping 

described in C–2—Airport Hydrant Fuel 

Distribution Systems. 

Release Prevention 

EPA is proposing UST systems with 

field-constructed tanks meet corrosion 

protection, spill, and overfill 

requirements. For corrosion protection, 

EPA is proposing UST systems with 

field-constructed tanks meet one of 

these: 

• The new tank and piping standards 

described in § 280.20; or 

• UST systems with field-constructed 

tanks installed on or before the effective 

date of the final UST regulation can be 

constructed of metal and cathodically 

protected according to a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory and meet the following: 

Æ Field installed cathodic protection 

systems must be: designed by a 

corrosion expert; designed to allow for 

the determination of current operating 

status for impressed current systems; 

and operated and maintained in 

accordance with § 280.31 or guidelines 

established by the implementing 

agency; and 

Æ Tanks greater than 10 years old 

without cathodic protection must be 

assessed to ensure they are structurally 

sound and free of corrosion holes prior 

to adding cathodic protection. The 

assessment must be by internal 

inspection or another method the 

implementing agency determines 

adequately assesses the tank for 

structural soundness and corrosion 

holes. 

EPA is proposing UST systems with 

field-constructed tanks installed on or 

before the effective date of the final UST 

regulation that are not upgraded 

according to § 280.21 within three years 

of the effective date of the final UST 

regulation must be permanently closed 

according to § 280.70. EPA is proposing 

internal lining not be allowed for 

meeting the corrosion protection 

upgrade requirement. 

EPA is proposing to exclude new and 

replaced piping of UST systems with 

field-constructed tanks from secondary 

containment requirements in 

§ 280.20(b). 

Notification 

EPA is proposing that, no later than 

30 days after the effective date of the 

final UST regulation, owners of 

regulated UST systems with fieldconstructed tanks notify appropriate 

implementing agencies that their 

systems exist. 

Financial Responsibility 

EPA is proposing UST systems with 

field-constructed tanks no longer be 

deferred. This means UST systems with 

field-constructed tanks that have not 

been permanently closed will be subject 

to financial responsibility requirements 

in subpart H. 

Deferred Components 

EPA is proposing to continue 

deferring aboveground tanks associated 

with UST systems with fieldconstructed tanks from the requirements 

of subparts B, C, D, E, and G. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing to regulate UST 

systems with field-constructed tanks 

because they are very large and pose a 

substantial threat to human health and 

the environment. Typical tank sizes 

range from 20,000 gallons to greater 

than two million gallons. The total 

universe of UST systems with fieldconstructed tanks is small. There are 

approximately 239 UST systems with 

field-constructed tanks. 

Several releases from bulk fieldconstructed tanks have been recorded at 

the Craney Island Fuel Terminal in 

Portsmouth, VA.46 For example, a 2.1 

million gallon field-constructed UST 

system that operated from the 1950s to 

the mid 1980s released an estimated 

300,000 to 500,000 gallons of product 

into the environment. Free product was 

found within 20 feet of a nearby creek, 

and the resulting plume covered more 

than five acres. Remediation efforts have 

been on-going since 1986. The release 

was attributed to tank and/or piping 

failures and possibly from a nearby tank 

that had a 127,000 gallon overfill in 

1986. Another 2.1 million gallon fieldconstructed tank system that operated 

from the 1950s until 2000 released an 

estimated 175,000 to 250,000 gallons of 

jet fuel into the environment. The 

release was attributed to piping failures. 

The resulting plume covered three acres 

and threatened a nearby creek. In both 

of these examples, release prevention 

and release detection requirements 

could have reduced the severity of these 

releases and may well have prevented 

these releases. 

EPA is also proposing this change 

because design and construction 

standards for UST systems with fieldconstructed tanks are now available. In 

the 1988 UST regulation preamble, EPA 

indicated tank design and construction 

methods for field-constructed tanks 

differed from factory-built tanks; we did 

not have sufficient time to develop an 

appropriate regulation related to design 

and construction for those tanks. 

Although design standards are now 

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47United Facilities Criteria (UFC) 3–460–01, 

‘‘Petroleum Fuel Facilities,’’ prescribes basic 

specifications and guidance for designing fueling 

systems on military installations. Unless otherwise 

noted, the handbook uses nationally recognized 

association and institute standards in accordance 

with the appropriate service policy. For the 

purposes of this preamble, a ‘‘field-constructed 

tank’’ is analogous to a ‘‘cut and cover’’ tank. 

48National Work Group on Leak Detection 

Evaluation’s (NWGLDE) List of Leak Detection 

Evaluations for Storage Tank Systems: http:// 

www.nwglde.org/. 

49National Work Group on Leak Detection 

Evaluation’s (NWGLDE) List of Leak Detection 

Evaluations for Storage Tank Systems: http:// 

www.nwglde.org/. 

available for aboveground fieldconstructed tanks, EPA is not aware of 

standards written according to a 

national code of practice developed by 

a nationally recognized or independent 

testing laboratory. However, military 

construction standards, written as 

guidance for aboveground and 

underground storage tank construction 

projects on military installations, are 

available.47 EPA considers current 

military construction standards 

appropriate to sufficiently address fieldconstructed tank design and 

construction. Implementing agencies 

may use military design and 

construction standards to address the 

site specific nature of field-constructed 

tank systems on military installations. 

Note that more stringent standards will 

prevail if a field-constructed tank is 

installed in a locale with more stringent 

design standards. EPA expects owners 

and operators to use these existing 

standards and specifications for design 

and construction of UST systems with 

field-constructed tanks. 

EPA is proposing UST systems with 

field-constructed tanks installed on or 

before the effective date of the final UST 

regulation begin meeting the 

requirements of subparts B (except 

§ 280.22) and C within three years of the 

effective date of the final UST 

regulation, subpart D according to the 

phase in schedule in the table above, 

and § 280.22 of subpart B along with 

subparts E, G, and H on the effective 

date of the final UST regulation. UST 

systems with field-constructed tanks 

installed after the effective date of the 

final UST regulation must meet all 

requirements at installation. Three years 

allows owners and operators enough 

time to implement the requirements of 

subparts B (except § 280.22) and C. EPA 

is providing a phase in period for bulk 

line tightness testing in subpart D to 

allow owners and operators ample time 

to upgrade their piping systems and 

meet the leak rate criteria. EPA is 

proposing to allow owners and 

operators for the first six years (two test 

periods) to meet a higher threshold of 

up to 6.0 gallons per hour for those 

piping segments that cannot meet the 

more stringent maximum 3.0 gallons per 

hour threshold, due to technical 

reasons. These technical reasons 

include exceeding capabilities of 

currently available pressure-based 

methods to achieve the required leak 

rate. Currently available methods are 

capable of testing larger volume test 

sections to a leak rate of 6.0 gallons. The 

higher threshold of 6.0 gallons per hour 

provides for use of existing test methods 

during the first six year period. Six 

years will provide owners and operators 

time to upgrade their piping systems to 

meet the up to 3.0 gallon per hour 

threshold for semiannual testing. 

Between years six and seven of the 

phase in, EPA proposes to allow owners 

and operators to conduct one additional 

bulk tightness test that meets the 

semiannual testing threshold. Beginning 

in year seven, owners and operators 

must begin meeting the semiannual and 

annual bulk line tightness testing 

requirements described earlier in this 

section. For all other tank and piping 

release detection options, EPA is 

proposing a three year phase in because 

these methods will not require 

significant construction or upgrades for 

implementation. Finally, owners and 

operators can implement the 

requirements of § 280.22 of subpart B 

along with subparts E, G, and H 

beginning on the effective date of the 

final UST regulation because upgrades 

or special equipment are not needed to 

meet the requirements in these subparts. 

Release Detection 

In the 1988 UST regulation, EPA 

deferred UST systems with fieldconstructed tanks in part due to lack of 

appropriate release detection methods. 

At that time, EPA believed the majority 

of release detection methods applied to 

factory-built tank systems and did not 

adequately work for UST systems with 

field-constructed tanks. Over the last 20 

years, effective release detection 

methods for UST systems with fieldconstructed tanks have evolved. 

However, prescribed leak rates for fieldconstructed tanks differ from those in 

§ 280.43 of the 1988 UST regulation, 

which generally apply to factory-built 

tanks. Additionally, 19 state UST 

programs, which include approximately 

60 percent of the existing universe of 

these UST systems, now regulate UST 

systems with field-constructed tanks. 

NWGLDE’s list in Bulk Underground 

Storage Tank Leak Detection Methods 

(50,000 Gallons or Greater) 48 identifies 

several methods applicable to fieldconstructed tanks. Third party 

evaluators verified those release 

detection methods achieve a variety of 

performance standards. EPA contacted 

several vendors and DLA Energy to find 

out about their experiences with release 

detection methods for field-constructed 

tanks in states, such as California, 

which require UST systems with fieldconstructed tanks meet release detection 

requirements. 

EPA recognizes that most release 

detection methods for factory-built 

tanks are capable of monitoring UST 

systems with field-constructed tanks up 

to 50,000 gallons. After evaluating 

current methods, EPA realized existing 

release detection options for tanks in 

§ 280.41 of the 1988 UST regulation are 

generally not applicable to UST systems 

greater than 50,000 gallons because 

most methods are limited by tank 

capacity. As a result, EPA is proposing 

alternative release detection monitoring 

methods at different leak rates and 

frequencies for UST systems with fieldconstructed tanks greater than 50,000 

gallons than for factory-built tanks. 

Based on limited data about leaks 

from field-constructed tanks, EPA is 

proposing two release detection 

requirements depending on tank size. 

UST systems with field-constructed 

tanks up to 50,000 gallons will be 

required to meet requirements in 

§ 280.41(a). UST systems with fieldconstructed tanks greater than 50,000 

gallons will be required either to meet 

requirements in § 280.41(a) or use an 

alternative release detection method 

described below. EPA estimates a subset 

of larger size tanks will be able to use 

automatic tank gauging systems set to 

achieve leak rates in 280.43(d). 

NWGLDE’s list identifies numerous 

automatic tank gauging systems capable 

of detecting leaks on tanks up to 

100,000 gallons.49

Owners and operators of UST systems 

with field-constructed tanks greater than 

50,000 gallons will be allowed to choose 

several alternative release detection 

methods. They must either perform 

annual bulk underground tank tightness 

testing that can detect a 0.5 gallon per 

hour leak rate or use an automatic tank 

gauging system that can detect up to a 

two gallon per hour leak rate. 

Depending on the automatic tank 

gauging system’s leak rate, a bulk 

underground tank tightness test at a rate 

of 0.2 gallon per hour will be required 

at least every two or three years. This 

proposed automatic tank gauging 

requirement is different from the 1988 

release detection requirement for 

factory-built tanks. These proposed leak 

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71734 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

50See section F of this preamble and Regulatory 

Impact Analysis (RIA) for the proposed rule, 

available as a separate document in the docket, for 

information on the cost differences between 

meeting conventional release detection 

requirements and the proposed alternative 

requirements for airport hydrant systems and UST 

systems with field-constructed tanks. 

51 DOD’s DLA Energy, ‘‘Response to EPA— 

Release Detection Point Paper,’’ dated 03/10. 

52 DOD’s DLA Energy, ‘‘Response to EPA— 

Release Detection Point Paper,’’ dated 03/10. 

rates and time frames for release 

detection testing are appropriate 

because they will detect releases within 

a reasonable time frame given the large 

tank sizes and time needed to perform 

testing on these tanks. 

In addition, implementing agencies 

may approve another method of release 

detection for UST systems with fieldconstructed tanks if the owner and 

operator can demonstrate the method 

can detect a release as effectively as any 

of the methods listed above. The 

implementing agency must consider the 

size of release the method can detect as 

well as frequency and reliability of 

detection when comparing methods. 

Owners and operators must comply 

with any conditions imposed by the 

implementing agency on the method’s 

use. 

EPA acknowledges the complexities 

in performing release detection on tanks 

significantly larger than 50,000 gallons. 

Perhaps the most critical aspect is 

allowing sufficient time for a tank to 

reach a state of equilibrium. As tank size 

increases, the time for a tank to reach an 

equilibrium state increases significantly. 

Based on discussions with release 

detection vendors, many larger tanks 

require multiple inactive days to yield 

an accurate test result. 

Most UST systems with fieldconstructed tanks are owned by DoD. 

Taking these tanks out of service for 

multiple days to meet the 1988 release 

detection requirement would impede 

DoD’s mission, be impractical to 

sustain, and result in significant costs.50

Our proposed alternatives for release 

detection provide appropriate 

environmental protection without 

substantially compromising DoD’s 

mission. DoD can choose to combine an 

automatic tank gauge, at leak rates 

achievable by automatic tank gauges on 

the market for monthly tank monitoring, 

with precision bulk tank tightness 

testing. The probabilities of detection 

and false alarm EPA proposes for bulk 

tank tightness testing are consistent 

with the line leak detection 

requirements in the 1988 UST 

regulation. DoD can also choose to 

perform bulk tank tightness testing as a 

stand-alone method of release detection. 

Staggering the test frequency will allow 

DoD to take tanks out of service at 

different intervals without hindering its 

mission. 

Although current release detection 

methods can successfully perform tests 

and detect leaks on pressurized piping 

at retail service stations, these systems 

cannot achieve the same level of 

accuracy on large diameter underground 

piping of UST systems with fieldconstructed tanks. EPA is proposing 

piping of UST systems with fieldconstructed tanks meet the same 

requirements proposed for airport 

hydrant system piping. See section C–2 

for proposed release detection 

requirements for airport hydrant system 

piping. 

Release Prevention 

In § 280.20, EPA is proposing new or 

replaced tanks and piping have 

secondary containment. Secondary 

containment poses a much smaller risk 

to the environment by providing an 

additional measure for containing 

released regulated substances in the 

interstitial space between the two walls 

of the UST system. Secondary 

containment must be: Able to contain 

regulated substances released from the 

UST system until they are detected and 

removed; able to prevent the release of 

regulated substances to the environment 

at any time during the operational life 

of the UST system; and checked for 

evidence of a leak at least once every 30 

days using interstitial monitoring that 

meets the requirements of 280.43(g) for 

tanks. For UST systems with fieldconstructed tanks, EPA is proposing 

only new and replaced tanks meet the 

secondary containment requirement. 

EPA discussed with DLA Energy and 

other vendors the feasibility of installing 

secondary containment on piping of 

UST systems with field-constructed 

tanks. Field-constructed tank system 

pipes range from four to 20 inches in 

diameter, with lengths normally greater 

than 30,000 feet.51 Due to complex 

configurations and varying pipe lengths, 

we believe installing secondary 

containment on piping of UST systems 

with field-constructed tanks may be 

impractical. It would be difficult to 

design a liquid tight barrier that could 

accommodate varying diameters of 

underground piping. Because leaks 

occur at fittings and valves, installing 

fittings and valves to join pipes with 

various diameters along the piping run 

increases the likelihood of a release. 

Because field-constructed tank system 

pipe lengths are normally significantly 

greater than lengths of piping at a 

typical retail gasoline station, it would 

be very difficult to install a system with 

enough sloping that could adequately 

monitor the lowest point of a piping 

run. Finally, condensation can 

accumulate in the interstice between the 

inner and outer steel pipe walls, 

promoting corrosion of both pipe walls 

in the interstitial space and increasing 

the likelihood of a release to the 

environment. 

EPA acknowledges there are 

engineering and design challenges (that 

is, varying pipe diameter and length, 

along with water accumulation in the 

interstitial space) when secondarily 

containing piping of UST systems with 

field-constructed tanks.52 Therefore, 

EPA is proposing not to require 

secondary containment for piping of 

UST systems with field-constructed 

tanks. However, EPA is proposing new 

and replaced field-constructed tanks 

meet secondary containment 

requirements. See section A–2 for more 

information about the proposed 

secondary containment requirements for 

tanks. 

As with all other regulated UST 

systems, EPA is proposing UST systems 

with field-constructed tanks meet 

corrosion protection requirements. 

Because interim prohibition has been in 

effect since May 1985, UST systems 

with field-constructed tanks generally 

are already equipped with corrosion 

protection (that is, constructed of: Noncorrodible material; coated and 

cathodically protected steel; fiberglass 

reinforced plastic; or steel tank clad 

with fiberglass reinforced plastic). Fieldconstructed UST systems made of 

concrete would meet the corrosion 

protection requirement because they are 

constructed of a non-corrodible 

material. 

As with airport hydrant systems, EPA 

is proposing not to allow adding an 

internal lining as a means of corrosion 

protection for UST systems with fieldconstructed tanks that are not already 

upgraded. See section C–2 for an 

explanation of why EPA is not allowing 

these USTs to be upgraded with internal 

lining. 

As with all other regulated UST 

systems, EPA is proposing UST systems 

with field-constructed tanks meet spill 

and overfill requirements to prevent 

releases to the environment. After 

discussion with industry and DoD’s 

DLA Energy, EPA is taking the position 

that existing UST systems with fieldconstructed tanks are already equipped 

with spill and overfill prevention 

devices that will adequately prevent 

spills and overfills. 

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UST systems with field-constructed 

tanks installed on or before the effective 

date of the final UST regulation that do 

not meet the upgrade requirements 

within three years after the effective 

date of the rule must be permanently 

closed according to § 280.70. EPA is 

requiring permanent closure to prevent 

releases to the environment from UST 

systems with field-constructed tanks 

that have not been upgraded. 

Notification 

To make implementing agencies 

aware that UST systems with fieldconstructed tanks exist, EPA is 

proposing owners of these systems 

submit a one-time notification to the 

implementing agency. Owners must 

notify within 30 days of the effective 

date of the final regulation. This will 

allow implementing agencies to include 

UST systems with field-constructed 

tanks in their inventories. 

Financial Responsibility 

Because EPA is proposing to 

eliminate the deferral for UST systems 

with field-constructed tanks, they will 

no longer be exempt from financial 

responsibility requirements in subpart 

H. Owners and operators will be 

required to comply by the effective date 

of the final UST regulation. The 1988 

UST financial responsibility regulation 

exempts state and federal entities. 

Therefore, federal and state owners and 

operators of UST systems with fieldconstructed tanks will not have to meet 

the financial responsibility requirement. 

Nearly all UST systems with fieldconstructed tanks are owned by the 

federal government. 

Deferred Components 

As with airport hydrant systems, EPA 

is proposing to continue deferring the 

aboveground tanks associated with UST 

systems with field-constructed tanks 

from subparts B, C, D, E, and G. See 

section C–2 for an explanation of why 

EPA proposes to continue deferring 

these aboveground components. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Are the release detection options 

and time frames appropriate and 

sufficient? 

• Are there other release detection 

options EPA should consider? 

• Are you aware of any releases from 

UST systems with field-constructed 

tanks? If so, what were the sources, 

causes, and impacts to the environment? 

• Is the proposed time frame for 

implementing the requirements for UST 

systems with field-constructed tanks 

reasonable? If not, please explain why. 

• Should EPA consider alternative 

options for closing very large UST 

systems in place? For example, should 

EPA consider requiring removal or 

allowing closure in place without filling 

the UST? 

• Should EPA consider revising the 

date in 280.73 for previously deferred 

UST systems? Revision of this date 

would mean that these UST systems 

closed prior to the effective date of the 

final rule would not have to meet 

Subpart G unless the implementing 

agency directs otherwise based on a 

current or potential threat to human 

health and the environment. How many 

of these UST systems have been closed 

since December 22, 1988? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

4. Wastewater Treatment Tank Systems 

What is EPA proposing? 

EPA is proposing to regulate 

wastewater treatment tank systems that 

are not part of a wastewater treatment 

facility regulated under § 402 or 307(b) 

of the CWA. 

This means wastewater treatment tank 

systems that are currently deferred in 

§ 280.10(c)(1) will no longer be deferred 

from the requirements of 40 CFR part 

280 subparts B (UST Systems: Design, 

Construction, Installation and 

Notification), C (General Operating 

Requirements), D (Release Detection), E 

(Release Reporting, Investigation, and 

Confirmation), G (Out-of-Service UST 

Systems and Closure), and H (Financial 

Responsibility). These wastewater 

treatment tanks that are currently 

deferred in § 280.10(c)(1) will be 

referred to as ‘‘wastewater treatment 

tanks’’ in the discussion below. 

Wastewater treatment tank systems 

installed on or before the effective date 

of the final UST regulation must begin 

meeting the requirements of subparts B 

(except § 280.22), C, and D within three 

years of the effective date of the final 

UST regulation and § 280.22 of subpart 

B along with subparts E, G, and H on the 

effective date of the final UST 

regulation. Wastewater treatment tank 

systems installed after the effective date 

of the final UST regulation must meet 

these requirements at the time of 

installation. 

Release Detection 

EPA is proposing wastewater 

treatment tank systems no longer be 

deferred from release detection. This 

means wastewater treatment tank 

systems must meet the release detection 

requirements in 40 CFR part 280, 

subpart D. 

Release Prevention 

EPA is proposing wastewater 

treatment tank systems meet corrosion 

protection, spill, and overfill 

requirements. For corrosion protection, 

EPA is proposing wastewater treatment 

tank systems meet one of these: 

• The new tank and piping standards 

described in § 280.20; or 

• Wastewater treatment tank systems 

installed on or before the effective date 

of the final UST regulation can be 

constructed of metal and cathodically 

protected according to a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory and meet the following: 

Æ Field installed cathodic protection 

systems must be: Designed by a 

corrosion expert; designed to allow for 

the determination of current operating 

status for impressed current systems; 

and operated and maintained in 

accordance with § 280.31 or guidelines 

established by the implementing 

agency; and 

Æ Tanks greater than 10 years old 

without cathodic protection must be 

assessed to ensure they are structurally 

sound and free of corrosion holes prior 

to adding cathodic protection. The 

assessment must be by internal 

inspection or another method the 

implementing agency determines 

adequately assesses the tank for 

structural soundness and corrosion 

holes. 

EPA is proposing wastewater treatment 

tank systems installed on or before the 

effective date of the final UST regulation 

that are not upgraded according to 

§ 280.21 within three years of the 

effective date of the final UST regulation 

be permanently closed according to 

§ 280.70. EPA is proposing internal 

lining not be allowed for meeting the 

corrosion protection upgrade 

requirement. 

Notification 

EPA is proposing that, no later than 

30 days after the effective date of the 

final UST regulation, wastewater 

treatment tank system owners notify 

appropriate implementing agencies that 

their systems exist. 

Financial Responsibility 

EPA is proposing wastewater 

treatment tank systems no longer be 

deferred. This means wastewater 

treatment tank systems that have not 

been permanently closed will be subject 

to financial responsibility requirements 

in subpart H. 

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Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing to regulate 

wastewater treatment tank systems 

(including oil-water separators) 

containing regulated substances in 40 

CFR part 280 if they are not part of a 

wastewater treatment facility regulated 

under § 402 or 307(b) of the CWA. In the 

1988 UST regulation, EPA deferred 

these systems because we were 

uncertain about how many of these UST 

systems exist and the appropriateness of 

some release detection systems for these 

systems. EPA still is uncertain about 

how many wastewater treatment tank 

systems exist. Removing the deferral 

will allow us to determine how many 

are subject to 40 CFR part 280;. In 

addition, release detection methods are 

available to detect releases from these 

systems. EPA is proposing to regulate 

these types of UST systems to protect 

human health and the environment 

from discharges of regulated substances 

contained in these systems. When 

wastewater treatment tank systems are 

not part of a wastewater treatment 

facility regulated under § 402 or 307(b) 

of the CWA, they must meet all 

requirements in 40 CFR part 280, 

including requirements for design, 

construction, installation, and 

notification; general operating; release 

detection; and closure. 

To help determine the universe of 

wastewater treatment tank systems we 

are proposing to regulate, EPA queried 

several field experts. They were not 

aware of any wastewater treatment tank 

systems that are part of a wastewater 

treatment facility not regulated under 

§ 402 or 307(b) of the CWA. Based on 

the experts’ information, all wastewater 

treatment tanks, including those at most 

publicly-owned treatment works and 

many private treatment facilities, are all 

part of a wastewater treatment facility 

regulated by either § 402 or § 307(b) of 

the CWA and, therefore, are excluded 

from 40 CFR part 280. As a result, it 

appears there are no wastewater 

treatment tank systems currently 

deferred. However, in the event such 

tanks exist, they present the same risks 

as other UST systems currently 

regulated and need to meet the 

requirements in 40 CFR part 280 in 

order to protect human health and the 

environment. 

EPA is proposing that wastewater 

treatment tank systems installed on or 

before the effective date of the final UST 

regulation begin meeting the 

requirements in 40 CFR 280 subparts B 

(except § 280.22), C, and D within three 

years of the effective date of the final 

UST regulation and § 280.22 of subpart 

B along with subparts E, G, and H on the 

effective date of the final UST 

regulation. This includes requirements 

for design, construction, and installation 

(including spill, overfill, and corrosion 

protection); release detection; 

notification; operation and 

maintenance; recordkeeping; and 

closure. In the 1988 UST regulation, 

deferred wastewater treatment tank 

systems were required to meet the 

interim prohibition requirements of 

§ 280.11 (that is, corrosion protected, 

made of non-corrodible materials, or 

otherwise designed and constructed to 

prevent releases during the operating 

life of the facility due to corrosion or 

structural failure). Therefore, 

wastewater treatment tank systems are 

already equipped with corrosion 

protection. Wastewater treatment tank 

systems installed after the effective date 

of the final UST regulation must meet 

all 40 CFR part 280 requirements at 

installation. Three years allows owners 

and operators enough time to 

implement the requirements of subparts 

B (except § 280.22), C, and D. EPA also 

is taking the position that owners and 

operators can implement the 

requirements of § 280.22 of subpart B 

along with subparts E, G, and H 

beginning on the effective date of the 

final UST regulation because upgrades 

or special equipment are not needed to 

meet the requirements in these subparts. 

As with airport hydrant systems and 

UST systems with field-constructed 

tanks, EPA is proposing not to allow 

adding an internal lining as a means of 

corrosion protection for wastewater 

treatment tank systems that are not 

already upgraded. See section C–2 for 

an explanation of why EPA is not 

allowing these USTs to be upgraded 

with internal lining. 

Wastewater treatment tank systems 

installed on or before the effective date 

of the final UST regulation that do not 

meet the upgrade requirements within 

three years after the effective date of the 

rule must be permanently closed 

according to § 280.70. EPA is requiring 

permanent closure to prevent releases to 

the environment from wastewater 

treatment tank systems that have not 

been upgraded. 

Notification 

EPA is proposing owners submit a 

one-time notification to implementing 

agencies for wastewater treatment tank 

systems not regulated by the CWA. 

Owners must notify within 30 days of 

the effective date of the final regulation. 

EPA is proposing this to ensure 

implementing agencies are aware these 

systems exist. 

Financial Responsibility 

Because wastewater treatment tank 

systems will no longer be deferred, 

those systems not permanently closed 

will need to meet financial 

responsibility requirements as described 

in 40 CFR part 280, subpart H. Federaland state-owned facilities are exempt 

from this requirement. Therefore, 

federal and state owners and operators 

of wastewater treatment tank systems 

will not have to meet this requirement. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• EPA is taking the position that there 

are no wastewater treatment tank 

systems affected by this proposal. Are 

you aware of systems that would be 

subject to this proposed change? If yes, 

please provide information about the 

number and location of wastewater 

treatment tank systems that would be 

regulated. For instance are there units 

associated with natural gas drilling that 

are not regulated by 402 or 307(b)? 

• If there are wastewater tank 

systems, is it most appropriate to 

regulate, exempt, or continue to defer 

these systems? Please explain why. 

• Should EPA consider revising the 

date in 280.73 for previously deferred 

UST systems? Revision of this date 

would mean that these UST systems 

closed prior to the effective date of the 

final rule would not have to meet 

Subpart G unless the implementing 

agency directs otherwise based on a 

current or potential threat to human 

health and the environment. How many 

of these UST systems have been closed 

since December 22, 1988? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

5. Maintain Deferral for USTs 

Containing Radioactive Material and 

Emergency Generator UST Systems at 

Nuclear Power Generation Facilities 

Regulated by the Nuclear Regulatory 

Commission 

EPA is not proposing changes to the 

1988 UST regulation deferral in 

§ 280.10(c)(2) and (3) for USTs 

containing radioactive material and for 

emergency generator UST systems at 

nuclear power generation facilities 

regulated by the Nuclear Regulatory 

Commission (NRC). Currently, these 

types of UST systems are deferred from 

most UST requirements but are subject 

to requirements for interim prohibition, 

release response and corrective action, 

and where applicable, lender liability 

(40 CFR part 280, subparts A, F, and I, 

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53 DOE Orders establish management objectives, 

identify performance requirements and assign 

responsibilities consistent with policy and 

regulations. See: https://www.directives.doe.gov/ 

directives/types-of-directives. 

54E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

respectively). EPA has decided to keep 

the deferral in order to retain EPA’s 

requirements for cleaning up releases 

from these USTs. 

EPA compared Department of Energy 

(DOE) Orders 53 and NRC requirements 

to the 1988 UST regulation. This 

assessment revealed DOE and NRC 

requirements are comparable to EPA 

requirements for new and existing USTs 

regarding spill and overfill control 

(§ 280.30); operation and maintenance 

of corrosion protection (§ 280.31); 

compatibility (§ 280.32); and release 

detection (40 CFR part 280, subpart D). 

However, there is no independent 

regulatory authority for DOE and NRC to 

remediate releases. With that in mind, 

EPA is taking the position that it is 

appropriate to maintain the deferral for 

these USTs as it currently exists in order 

for EPA to continue requiring release 

response and corrective action. 

D. Other Changes 

1. Changes To Overfill Prevention 

Equipment Requirements 

What is EPA proposing? 

In § 280.20, EPA is proposing to 

eliminate flow restrictors (also called 

ball float valves) in vent lines as an 

overfill prevention option either when 

an UST system is installed or when an 

UST system’s overfill prevention 

equipment is replaced. 

Owners and operators using a vent 

line flow restrictor before the final UST 

regulation becomes effective may 

continue using a flow restrictor to meet 

the overfill prevention requirements, as 

long as it restricts the flow of regulated 

substances into the UST when the 

device activates. 

Owners and operators may continue 

to use flow restrictors not in vent lines 

(such as flow restrictors in fill pipes), 

automatic shutoff devices, and high 

level alarms as overfill prevention for all 

UST systems. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

Spills and overfills are a common 

cause of UST system releases (see 

sections B–2 and B–3 for additional 

discussion). Through extensive 

stakeholder outreach, EPA identified 

vent line flow restrictors as a significant 

concern for operability and safety. To 

reduce the frequency of UST releases 

due to operability and to address system 

safety and personnel safety concerns, 

EPA is proposing to eliminate vent line 

flow restrictors for new installations and 

replacements. 

• Operability—For a vent line flow 

restrictor to operate properly, the device 

must restrict the flow of regulated 

substance into the UST when the flow 

restrictor engages. If the tank top is not 

liquid or vapor tight, flow into the UST 

is not restricted because vapors 

continue to escape through these nontight areas. If vapors continue to escape 

the UST, there is no pressure buildup in 

the vapor area of the tank, resulting in 

no reduced flow rate into the UST. 

Examples where non-tight tank tops 

may result in ineffective flow restrictors 

include: Loose tank bungs or other tank 

top components; tanks with coaxial 

stage I vapor recovery installed; and 

tanks with both tank top and remote fill 

areas. 

• System safety—Vent line flow 

restrictors can create safety concerns 

when they activate. USTs can become 

over pressurized and damaged during a 

pressurized delivery. The 2005 version 

of the Petroleum Equipment Institute’s 

installation standard, RP100, 

recommends against using vent 

restriction devices because the vent line 

flow restrictor pressurizes the UST, 

creating a hazardous condition when 

the device operates as designed. 

• Personnel safety—Delivery 

personnel can be sprayed with regulated 

substances when they disconnect the 

delivery hose from the fill pipe and the 

vent line flow restrictor activates. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• EPA considered eliminating or 

phasing out vent line flow restrictors for 

currently installed UST systems, but 

finds the cost burden for owners and 

operators could be high. Please provide 

input and information in support of or 

against eliminating or phasing out vent 

line flow restrictors. 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

2. Internal Linings That Fail the 

Periodic Lining Inspection and Cannot 

Be Repaired 

What is EPA proposing? 

In § 280.21, EPA is proposing owners 

and operators permanently close an 

UST that uses internal lining as the sole 

method of corrosion protection when 

both of these conditions exist: 

• A lining inspection determines the 

internal lining is no longer performing 

according to original design 

specifications; and 

• The internal lining cannot be 

repaired according to a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory. 

For tanks with both internal lining and 

cathodic protection, EPA is proposing to 

allow owners and operators continue 

operating an UST if it fails the lining 

inspection and cannot be repaired if 

both of these criteria are met: 

• The cathodic protection is operated 

and maintained according to § 280.31; 

and 

• The tank was assessed and found to 

be structurally sound and free of 

corrosion holes when the cathodic 

protection was added to the tank. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

About 3 percent of tanks today rely on 

internal lining as the sole method of 

corrosion protection to meet the 1988 

UST regulation.54 Tanks that are 

internally lined to meet the 1988 UST 

regulation corrosion protection 

requirement at § 280.21 are typically 

older, bare steel tanks installed before 

1986. The 1988 UST regulation 

preamble says that internal lining, when 

used as the sole method for corrosion 

protection, is not regarded as a 

permanent upgrade. However, it is 

adequate if the lining continues to meet 

original design specifications. If the 

internal lining no longer meets original 

design specifications and cannot be 

repaired according to industry codes, 

then the lined tank is subject to 

unprotected tank requirements and 

must be replaced after 1998. However, 

the language from the 1988 preamble 

was not included in § 280.21(b)(1). 

EPA is proposing to revise the 

internal lining requirements to match 

EPA’s intent of replacing internally 

lined tanks that fail a lining inspection 

and cannot be repaired according to a 

code of practice. EPA is proposing that 

a lined tank must be permanently closed 

if, when inspected, it cannot be repaired 

according to a code of practice. 

Owners and operators may continue 

using internal lining to meet the 

corrosion protection requirement, as 

long as: 

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55EPA UST Technical Compendium Question 

and Answer #14: http://epa.gov/oust/compend/ 

nus.htm. 

56Solid Waste Disposal Act § 9002(a)(1). 

57E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

• The internal lining is periodically 

inspected according to § 280.21(b)(1)(ii); 

and 

• The internal lining passes the 

inspection or is repaired so it meets 

original design specifications according 

to a code of practice developed by a 

nationally recognized association or 

independent testing laboratory. 

Consistent with current EPA policy,55

tanks using the combination of cathodic 

protection and internal lining for 

corrosion protection are not required to 

be closed if the internal lining fails and 

cannot be repaired as long as: 

• The cathodic protection is operated 

and maintained according to § 280.31; 

and 

• The tank was assessed and found to 

be structurally sound and free of 

corrosion holes when the cathodic 

protection was added to the tank. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Should EPA consider requiring 

lined tanks be closed when they fail a 

lining inspection independent of 

whether the lining can be repaired? If 

yes, please provide information to 

support your answer. 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

3. Notification Requirements 

What is EPA proposing? 

EPA is proposing these notification 

requirement changes in § 280.22: 

• Notify implementing agencies 

within 30 days of assuming ownership 

of an UST system. A new owner is 

required to submit a form which 

provides the new owner’s name, mailing 

address, physical location of USTs, and 

name of previous owner; 

• Require owners who bring new UST 

systems into service notify 

implementing agencies of USTs, rather 

than state or local agencies designated 

by EPA; 

• Merge the paragraph about 

minimum information with the 

paragraph explaining what forms to use 

for notification and delete the minimum 

information paragraph; 

• Require owners of deferred UST 

systems EPA is proposing to require a 

one-time notification to implementing 

agencies within 30 days of the effective 

date of the final UST regulation. 

EPA is proposing changes to the 

‘‘Notification For Underground Storage 

Tanks’’ form in Appendix I. 

EPA is proposing changes to the form 

as a result of today’s proposal, and to 

change ‘‘State’’ to ‘‘Implementing 

Agency’’ throughout the form. 

EPA is proposing a new form titled 

‘‘Notification of Ownership Change for 

Underground Storage Tanks’’ under 

Appendix II. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing the new ownership 

change notification to more effectively 

administer the UST program. EPA 

required a one-time notification of 

regulated USTs by May 8, 1986,56 and 

owners who purchased newly installed 

UST systems completed and submitted 

notification forms to implementing 

agencies. However, EPA did not require 

people notify implementing agencies 

when acquiring a regulated UST, such 

as when purchasing an existing service 

station. 

Without a requirement to notify when 

persons assume ownership of UST 

systems, implementing agencies have 

difficulty administering the UST 

program. Persons can assume ownership 

through purchase, inheritance, 

acquisition of property, or other means. 

EPA estimates on average 10 percent of 

retail UST facilities change ownership 

in a given year.57 Any communication 

or outreach is impaired if implementing 

agencies do not know the correct 

owners of a large proportion of 

regulated USTs. When final, this change 

will ensure implementing agencies 

know the current ownership of 

regulated UST systems. 

At least 48 of 56 states and territories 

realized this need and instituted some 

form of ownership change notification. 

EPA is following the example of these 

states and will require an ownership 

change notification to more effectively 

administer the UST program. 

EPA is proposing to include a form in 

Appendix II titled ‘‘Notification of 

Ownership Change for Underground 

Storage Tanks.’’ The new form specifies 

the information persons need to submit 

to the implementing agency after they 

become owners of underground storage 

tanks. EPA is proposing these owners 

provide their name, address, phone 

number, name of the facility, location of 

USTs, as well as the name, address, and 

phone number of the previous owner. 

EPA is also proposing owners who 

bring UST systems into service notify 

implementing agencies, rather than state 

and local agencies identified by EPA. 

This change is needed for two reasons. 

First, an unintended result of the 

existing requirement is owners in Indian 

country submitted notification forms to 

state or local agencies, not to EPA, even 

though EPA is the implementing agency 

in Indian country. When final, this 

change will greatly assist EPA in 

implementing the UST program in these 

areas. Second, many of the agency 

names and addresses EPA identified in 

1988 are no longer accurate. When final, 

this change will provide owners with 

clarity about where to send notification 

forms and better accommodate changes 

of implementing agencies. 

EPA is proposing to merge the 

paragraphs discussing the minimum 

information owners and operators need 

to submit and the form to be submitted 

to implementing agencies. This will 

reduce redundancy and ease 

understanding of this requirement. As a 

result, a separate paragraph explaining 

what minimum information to submit 

for notification will be unnecessary. 

EPA is proposing owners of 

previously deferred UST systems notify 

implementing agencies within 30 days 

of the effective date of the final UST 

regulation. EPA is proposing this onetime notification because owners of 

previously deferred UST systems 

brought into service after May 8, 1986 

were not required to notify 

implementing agencies. Because EPA is 

proposing to regulate previously 

deferred UST systems and to ensure 

they meet requirements of the final UST 

regulation, it is imperative 

implementing agencies receive notice 

about these UST systems. 

Due to EPA’s proposed changes to the 

UST regulation, we are proposing 

changes to the notification form under 

Appendix I. This will make the form 

request appropriate information 

according to today’s proposal. For 

instance, the release detection section of 

the 1988 UST regulation form did not 

include statistical inventory 

reconciliation or bulk tightness testing. 

The proposed form includes these 

methods. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is a one-time notification for all 

UST owners also necessary to 

effectively administer the UST program 

in jurisdictions (eight states and 

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58This is an error in 40 CFR 280; ‘‘though’’ 

should be ‘‘through.’’ 

59 ‘‘40 CFR Parts 280 and 281 USTs; Supplement 

to Proposed Rule,’’ 52 Federal Register 246 (23 

December 1987), pg. 48640. 

60Renewable Fuels Association, ‘‘Building 

Bridges to a More Sustainable Future: 2011 Ethanol 

Industry Outlook.’’ http://www.ethanolrfa.org/page/ 

-/2011%20RFA%20Ethanol%20Industry

%20Outlook.pdf?nocdn=1. 

61Oak Ridge National Laboratory, ‘‘Intermediate 

Ethanol Blends Infrastructure Materials 

Compatibility Study: Elastomers, Metals, and 

Sealants’’ (March 2011). 

62Underwriters Laboratories, Inc., ‘‘Underwriters 

Laboratories Research Program on Material 

Compatibility and Test Protocols for E85 

Dispensing Equipment’’ (December 2007). Available 

in the UST Docket under Docket ID No. EPA–HQ– 

UST–2010–0651. 

territories and Indian country) where 

implementing agencies do not currently 

require ownership change notification? 

EPA is posing this question because of 

the high rate of UST ownership changes 

and resulting likelihood implementing 

agencies do not know who owns 

numerous UST systems. 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

4. Alternative Fuels And Compatibility 

What is EPA proposing? 

EPA is proposing changes to two 

definitions in § 280.12 of the 1988 UST 

regulation. 

• Regulated substance—delete 

‘‘* * * derived from crude oil though 58

[sic] processes of separation, 

conversion, upgrading, and finishing 

* * *’’ 

• Motor fuel—include explanatory 

language that a petroleum or petroleumbased substance is typically used to 

operate a motor engine and provide 

example products (motor gasoline, 

aviation gasoline, No. 1 or No. 2 diesel 

fuel, or any blend containing one or 

more of these substances, such as motor 

gasoline blended with alcohol) meeting 

the definition. 

In addition, EPA is proposing changes 

to the compatibility requirement in 

§ 280.32 of the 1988 UST regulation. 

These changes explain how owners and 

operators storing certain regulated 

substances must demonstrate that their 

UST systems are compatible with 

substances stored. Specifically, EPA is 

proposing: 

• Owners and operators storing any 

regulated substance blended with 

greater than 10 percent ethanol or 

greater than 20 percent biodiesel, or any 

other regulated substance identified by 

the implementing agency, must use one 

or more of the following methods to 

demonstrate UST system compatibility 

with these regulated substances: 

Æ Certification or listing of UST 

system components by a nationally 

recognized, independent testing 

laboratory for use with the fuel stored; 

Æ Equipment or component 

manufacturer approval. The 

manufacturer’s approval must be in 

writing; indicate an affirmative 

statement of compatibility; specify the 

range of ethanol or biodiesel blends the 

component is compatible with; and be 

from the equipment or component 

manufacturer; or 

Æ Another method determined by the 

implementing agency to be no less 

protective of human health and the 

environment than the previously listed 

methods. 

• Owners and operators must 

maintain the following records 

(according to § 280.34) for the life of the 

equipment or component: 

Æ Documentation of compliance with 

the above section as applicable; and 

Æ Records of all equipment or 

components installed or replaced after 

the effective date of the final UST 

regulation. At a minimum, each record 

must include the date of installation or 

replacement, manufacturer, and model. 

EPA is also proposing to delete these 

codes of practice. 

• American Petroleum Institute 

Publication 1626, ‘‘Storing and 

Handling Ethanol and Gasoline-Ethanol 

Blends at Distribution Terminals and 

Service Stations’’ 

• American Petroleum Institute 

Publication 1627, ‘‘Storage and 

Handling of Gasoline-Methanol/ 

Cosolvent Blends at Distribution 

Terminals and Service Stations’’ 

Why is EPA proposing this change? 

What background information is 

available about this change? 

Regulated Substance and Motor Fuel 

Definitions 

EPA is proposing a change in the 

regulated substance definition to clarify 

that petroleum does not need to be 

derived from crude oil in order to be 

regulated when stored in USTs. The 

preamble to the supplement to the 

proposal for the original UST regulation 

indicates that petroleum products can 

be derived from other materials, such as 

biomass, plant material, organic waste, 

coal, and shale oil.59 Petroleum is 

comprised of a complex blend of 

hydrocarbons regardless of its source 

material; therefore, all petroleum poses 

risks to human health and the 

environment. 

Many people interpreted the 1988 

UST regulation definition of regulated 

substance as applying to petroleum 

USTs only if the petroleum was derived 

from crude oil. Over time, this 

misinterpretation may become more 

problematic as the amount of petroleum 

derived from non-crude oil based 

products, such as natural gasoline, 

increases as a result of requirements in 

the Energy Independence and Security 

Act of 2007. Today’s regulated 

substance clarification will eliminate 

uncertainty about the regulatory status 

of tanks storing petroleum products 

derived from sources other than crude 

oil. 

EPA is proposing a change in the 

motor fuel definition to better 

accommodate new motor fuels that may 

be marketed and stored in the future. 

The 1988 UST regulation definition 

listed motor fuel products, leading to 

confusion as to whether new fuels, such 

as petroleum blended with ethanol or 

biodiesel, are motor fuels. Today’s 

proposal clarifies the motor fuel 

definition to explain that it is any fuel 

typically used to operate a motor 

engine. 

Compatibility 

EPA understands that the chemical 

and physical properties of ethanol and 

biodiesel can be more degrading to 

certain UST system materials than 

petroleum alone. As the use of ethanoland biodiesel-blended fuels increases, 

EPA is concerned that not all UST 

system components are compatible with 

these fuel blends. 

Gasoline containing 10 percent or less 

ethanol (known as E10) has been used 

in parts of the United States for many 

years, and UST equipment 

manufacturers accommodated the E10 

market by producing compatible 

equipment. According to the Renewable 

Fuels Association, ethanol is blended 

into over 90 percent of all gasoline sold 

in the country,60 predominantly as E10. 

Recently, there has been a movement 

toward higher blends of ethanol, due in 

part to federal and state laws 

encouraging the increased use of 

biofuels. While most UST system 

equipment and components are 

compatible with E10, blends greater 

than 10 percent ethanol do not have a 

long history of storage and may not be 

compatible with certain materials used 

in UST systems. According to a 2011 

report published by U.S. Department of 

Energy’s Oak Ridge National 

Laboratory,61 some elastomeric 

materials are particularly affected by 

intermediate ethanol blends and certain 

sealants may not be suitable for any 

ethanol-blended fuels. A 2007 report 

from Underwriters Laboratories (UL) 62

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63Westbrook, P.A., ‘‘Compatibility and 

Permeability of Oxygenated Fuels to Materials in 

Underground Storage and Dispensing Equipment’’ 

(January 1999). Available in the UST Docket under 

Docket ID No. EPA–HQ–UST–2010–0651. 

64National Renewable Energy Laboratory, 

‘‘Biodiesel Handling and Use Guide, Fourth 

Edition.’’ (2009). Available in the UST Docket 

under Docket ID No. EPA–HQ–UST–2010–0651. 

65ASTM Standard D975, 2010c ‘‘Standard 

Specification for Diesel Fuel Oils,’’ ASTM 

International, West Conshohocken, PA, 2010, DOI: 

10.1520/D0975–10C, http://www.astm.org. 

66National Renewable Energy Laboratory, 

‘‘Biodiesel Handling and Use Guide, Fourth 

Edition.’’ (2009). Available in the UST Docket 

under Docket ID No. EPA–HQ–UST–2010–0651. 

evaluated the effect of 85 percent 

ethanol and 25 percent ethanol blends 

on dispenser components. Results 

indicated some materials used in the 

manufacture of seals were degraded 

more when exposed to the 25 percent 

ethanol test fluid than when exposed to 

the 85 percent ethanol test fluid. Other 

literature suggests ethanol fuel blends 

can be more aggressive toward certain 

materials than independent fuel 

constituents, with maximum polymer 

swelling observed at approximately 15 

percent ethanol by volume.63 Therefore, 

EPA is clarifying the compatibility 

requirements for owners and operators 

who choose to store regulated 

substances containing greater than 10 

percent ethanol. 

EPA is also clarifying the 

compatibility requirements for owners 

and operators who choose to store 

regulated substances containing greater 

than 20 percent biodiesel. Although the 

total use of biodiesel is significantly less 

than that of ethanol, it has become 

increasingly available across the United 

States and may also be incompatible 

with certain materials used in UST 

systems. Pure biodiesel (B100), for 

example, has known compatibility 

issues with certain materials. According 

to the U.S. Department of Energy’s 

National Renewable Energy Laboratory 

(NREL) Biodiesel Handling and Use 

Guide, Fourth Edition,64 ‘‘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®

materials are particularly vulnerable to 

B100.’’ 

In contrast, the properties of very low 

blends of biodiesel (B5 or less) are so 

similar to those of petroleum diesel that 

ASTM International (ASTM) considers 

conventional diesel that contains up to 

5 percent biodiesel to meet its 

‘‘Standard Specification for Diesel Fuel 

Oils’’ 65. For biodiesel blends between 5 

and 100 percent, there is very little 

compatibility information; however, 

NREL’s handling and use guide 

concludes that biodiesel blends of B20 

or less have less of an effect on materials 

and very low blends of biodiesel (for 

example, B5 and B2) ‘‘ * * * have no 

noticeable effect on materials 

compatibility.’’ 66 In addition, fleet 

service sites have stored B20 in USTs 

for years, and EPA is not aware of 

compatibility-related releases associated 

with those USTs storing B20. Therefore, 

EPA is proposing to require tank owners 

and operators who store greater than 20 

percent biodiesel in their UST systems 

demonstrate compatibility of UST 

equipment by one of the methods 

proposed in § 280.32. 

To avoid risk of increased releases 

due to incompatibility of ethanol or 

biodiesel blends with UST system 

components, EPA is proposing several 

options for owners and operators to 

demonstrate that their UST systems are 

compatible with regulated substances 

containing greater than 10 percent 

ethanol or greater than 20 percent 

biodiesel. These options provide owners 

and operators with flexibility in 

demonstrating compatibility, yet still 

protect human health and the 

environment. In the past, tank owners 

typically demonstrated compatibility by 

using equipment certified or listed by a 

nationally recognized, independent 

testing laboratory, such as Underwriters 

Laboratories (UL). Many UST 

components in the ground today were 

manufactured before regulated 

substances containing ethanol or 

biodiesel existed and are not approved 

by nationally recognized, independent 

testing laboratories for use with these 

fuel blends. Currently, certain tanks and 

piping have been tested and are listed 

by UL for use with higher-level ethanol 

blends. Many other components of the 

UST system, such as leak detection 

devices, sealants, and containment 

sumps, may not be listed by UL or 

another nationally recognized, 

independent testing laboratory for use 

with these blends. 

In addition, EPA is not aware of any 

nationally recognized, independent 

testing laboratory that has performed 

testing on UST system components with 

biodiesel-blended fuels. Absent 

certification or listing from a nationally 

recognized, independent testing 

laboratory, or other verification that 

components may be used with anything 

beyond conventional fuels, the 

suitability of these components for use 

with ethanol or biodiesel blends comes 

into question. As a result, EPA is 

providing options for demonstrating 

compatibility to reduce the risk of 

releases due to material incompatibility. 

Owners and operators choosing to store 

regulated substances blended with 

greater than 10 percent ethanol or 

greater than 20 percent biodiesel must 

demonstrate compatibility of the UST 

system before storing those regulated 

substances. 

EPA is proposing owners and 

operators use one of these two methods 

for demonstrating compatibility of UST 

equipment or components with 

regulated substances containing greater 

than 10 percent ethanol or greater than 

20 percent biodiesel: using equipment 

or components that are certified or 

listed by a nationally recognized, 

independent testing laboratory for use 

with the fuel stored; or using equipment 

or components approved by the 

manufacturer to be compatible with the 

fuel stored. In addition, implementing 

agencies will have the flexibility to 

evaluate and allow other methods, if 

they are no less protective of human 

health and the environment than those 

EPA is proposing today. 

For those components tested and 

approved by a nationally recognized, 

independent testing laboratory, owners 

and operators will be able to 

demonstrate compatibility solely by 

keeping records of these components. In 

this instance, the testing laboratory’s 

listing, labeling, or approval 

demonstrates the equipment or 

component’s suitability to be used with 

the regulated substance stored, which 

means owners and operators will be 

able to demonstrate compatibility by 

retaining equipment or component 

records. 

Owners and operators will also be 

able to demonstrate compatibility by 

obtaining manufacturer’s approval of 

components’ compatibility with the 

regulated substance to be stored. The 

manufacturer’s approval must be in 

writing and include an affirmative 

statement that the component is 

compatible with the fuel blend stored. 

To add clarity for tank owners and 

operators, the manufacturer’s approval 

must also specify the range of fuel 

blends for which the component is 

compatible. Finally, the manufacturer’s 

approval must be issued from the 

equipment or component manufacturer, 

not another entity (such as the installer 

or distributor). A manufacturer’s 

approval will enable owners and 

operators to demonstrate compatibility 

for components not approved for use by 

a nationally recognized, independent 

testing laboratory. It will also provide 

confidence for implementing agencies 

that the component is compatible with 

the fuel stored. 

EPA is proposing an additional option 

which would allow implementing 

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agencies to approve other methods for 

demonstrating compatibility with 

regulated substances containing greater 

than 10 percent ethanol or greater than 

20 percent biodiesel. Implementing 

agencies will be able to approve 

methods they consider no less 

protective of human health and the 

environment in addition to the 

manufacturer’s approval or the listing, 

labeling, or approval by a nationally 

recognized, independent testing 

laboratory. This will provide owners 

and operators with additional flexibility 

when new methods to determine UST 

system component compatibility are 

developed. 

Although these methods for 

demonstrating compatibility will apply 

to UST systems storing regulated 

substances containing greater than 10 

percent ethanol and greater than 20 

percent biodiesel, EPA is proposing to 

extend the methods to other regulated 

substances identified by implementing 

agencies. This will provide 

implementing agencies with flexibility 

when new regulated substances (for 

example, biobutanol) enter the fuel 

market and allow implementing 

agencies to apply these methods for 

determining UST system compatibility 

to other regulated substances. 

EPA is proposing owners and 

operators maintain records for the life of 

UST systems, if the UST system stores 

regulated substances containing greater 

than 10 percent ethanol or greater than 

20 percent biodiesel or another 

regulated substance identified by 

implementing agencies. Owners and 

operators will be required to retain 

equipment or component records in 

order to demonstrate their systems are 

compatible with these regulated 

substances. Without records of the 

equipment or components, owners and 

operators will not be allowed to store 

regulated substances containing greater 

than 10 percent ethanol or greater than 

20 percent biodiesel in their UST 

systems. 

To demonstrate compatibility with 

regulated substances stored in UST 

systems, owners and operators of new 

and replaced equipment or components 

must retain records for the life of the 

equipment or component. This will 

ensure new and replaced equipment 

and components are compatible with 

the regulated substances stored. As 

equipment or components are replaced, 

records will be available for all UST 

system equipment or components, 

making it easier for owners and 

operators to demonstrate compatibility 

with new regulated substances. 

Owners and operators must 

demonstrate compatibility for the 

following UST system equipment or 

components: Tank or internal tank 

lining; piping; line leak detector; 

flexible connectors; drop tube; spill and 

overfill prevention equipment and 

components; submersible turbine pump 

equipment and components; sealants 

(including pipe dope and thread 

sealant); fittings; gaskets; bushings; 

couplings; boots; containment sumps 

(including submersible turbine sumps 

and under dispenser containment); 

release detection floats, sensors, and 

probes; fill and riser caps; and the 

product shear valve. These equipment 

or components are a subset of an UST 

system, as defined by § 280.12, which, 

if incompatible, would lead to a liquid 

release to the environment. 

EPA is clarifying that the 

requirements in this section also apply 

to both newly installed equipment or 

components and equipment where one 

or more components are replaced. For 

newly installed equipment comprised of 

multiple individual, smaller 

components and assembled by the 

manufacturer, some manufacturers 

provide a compatibility certification for 

the equipment as a whole. For example, 

a manufacturer may certify the entire 

submersible turbine pump as being 

compatible. The submersible turbine 

pump certification would include all 

components (gaskets, sealants, bushings, 

etc.) of the equipment assembled by the 

manufacturer. Therefore, an owner may 

obtain one certification for newly 

installed manufacturer-assembled 

equipment, as long as the manufacturer 

certifies the entire piece of equipment as 

compatible. However, over the lifetime 

of a typical UST system, equipment is 

likely to require maintenance, which 

may involve replacing components such 

as gaskets, sealants, and bushings. It is 

important for tank owners to use 

compatible replacement components, 

especially since these components are 

sometimes constructed of materials that 

are not compatible with biofuel blends. 

Therefore, components (such as gaskets, 

sealants, bushings, etc.) replaced after 

the equipment was originally installed 

will not be covered by the original 

manufacturer’s approval. Owners and 

operators will need to obtain 

manufacturer’s certification indicating 

the replaced component is compatible 

with the regulated substance stored in 

the UST system. 

These proposed changes will protect 

human health and the environment 

from potential additional releases as a 

result of incompatible UST systems. 

Also, the changes are not overly 

burdensome, nor do they require costly 

retrofits. These changes will give 

owners and operators flexibility, yet 

provide EPA with confidence that UST 

systems will be compatible with new 

fuel blends when owners and operators 

use one or more of the proposed 

methods to determine compatibility. 

The additional language also provides 

owners and operators with certainty on 

what is acceptable in demonstrating 

UST system compatibility with the 

substances stored. 

EPA is also proposing to delete two 

codes of practice listed in the 1988 UST 

regulation. EPA included codes of 

practice to help owners and operators 

demonstrate compliance with the 

compatibility requirement. EPA is now 

proposing methods for determining 

compatibility, so referencing codes of 

practice is unnecessary. 

In August 2010, American Petroleum 

Institute (API) published an updated 

version of API Recommended Practice 

1626. Today’s proposal incorporates 

several methods API recommends 

owners and operators storing blends of 

greater than 10 percent ethanol use to 

demonstrate UST system compatibility. 

If owners and operators follow API 

Recommended Practice 1626, Section 7 

requirements, for regulated substances 

blended with ethanol, they will meet 

today’s proposed § 280.32(b) changes. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• How many UST systems currently 

store petroleum not derived from crude 

oil (such as natural gasoline)? 

• Should EPA consider allowing 

professional engineers to make 

compatibility determinations? 

• Are there additional methods for 

effectively demonstrating compatibility? 

If yes, please provide details. 

• Are there other alternatives to 

demonstrating compatibility (such as 

using secondarily contained USTs) that 

tank owners and operators should be 

allowed to use, that are no less 

protective of human health and the 

environment? 

• Are the proposed criteria for 

manufacturer’s approval reasonable? 

• Should EPA consider tiering 

methods? For example, if an approval or 

listing from a nationally recognized, 

independent third party is available, 

then the manufacturer approval is not 

an option for that component? 

• Should EPA waive the 

compatibility requirement for UST 

systems with secondary containment 

and interstitial monitoring? Why or why 

not? 

• While this proposal requires owners 

and operators maintain records to 

demonstrate compatibility, we are not 

requiring owners and operators transfer 

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records to new owners and operators. 

Should EPA consider requiring records 

transfer? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

5. Improving Repairs 

What is EPA proposing? 

EPA is proposing to revise the 

definition of repair in § 280.12 to: 

• Clarify that all UST system 

components, including piping, spill 

prevention equipment, overfill 

prevention equipment, corrosion 

protection equipment, and release 

detection equipment are included under 

the repairs allowed section of the 

regulation, and 

• Remove the link that repairs are 

only associated with a release from an 

UST system by adding to the definition 

suspected release and equipment that 

has failed to function properly. 

For repairs to secondary containment 

areas of UST systems, overfill 

prevention equipment, and spill 

prevention equipment, EPA is 

proposing to add tests after a repair to 

the repairs allowed section (§ 280.33). 

The tests after repair requirements for 

these areas are the same as those for 

periodic spill and overfill tests 

discussed in sections B–2 and B–3. The 

tests for interstitial areas after a repair 

and periodic interstitial integrity (in 

section B–4) are the same, except tanks 

with continuous interstitial sensors 

must perform a vacuum, pressure, or 

liquid test following the repair. These 

tests must be conducted within 30 days 

of a repair. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

Clarification of UST system 

components in the definition of repair— 

EPA is proposing to add the following 

UST system components to the 

definition of repair: Piping; spill 

prevention equipment; overfill 

prevention equipment; corrosion 

protection equipment; and release 

detection equipment. By adding these 

UST system components, EPA is making 

it clear that these specific components 

are subject to the repairs allowed 

section of the regulation. This means 

owners and operators performing 

repairs on these UST system 

components must follow the repairs 

allowed section (§ 280.33). The 1988 

UST regulation definition of repair uses 

the generic term UST system component 

and provides less detail about what an 

UST system component is. 

Including repairs not associated with 

a confirmed release or suspected release 

from the UST system—It is common 

practice for owners and operators to fix 

UST components that have not caused 

a release or suspected release of product 

from the UST system. However, the 

repair definition in the 1988 UST 

regulation does not consider these nonrelease fixes as repairs. EPA is 

proposing to modify the repair 

definition to include the concept of 

repairing equipment that failed to 

function properly, delinking a repair 

with a release from the UST system. 

This proposed change will ensure repair 

activities not associated with a release 

are conducted properly. For example, 

under the 1988 UST regulation, fixing a 

cathodic protection system would not 

be considered a repair because the UST 

component likely has not yet caused a 

release of product from the UST system. 

In addition, EPA is proposing to include 

a suspected release as part of the 

definition, so repairs associated with 

suspected releases are covered under 

the repair definition. 

By removing the link between repair 

and release, EPA is proposing owners 

and operators meet the repairs allowed 

section (§ 280.33) when fixing UST 

system components that have not 

caused a release of product from the 

UST system. This means owners and 

operators will need to have repairs 

performed in accordance with a code of 

practice developed by a nationally 

recognized association or independent 

testing laboratory and test the 

equipment after the repair is completed. 

Tests after repairs—To ensure 

equipment is operating as intended after 

a repair, EPA is proposing to require 

tests within 30 days of repairing spill, 

overfill, and secondary containment 

equipment. Except for interstitial 

integrity tests in USTs with continuous 

interstitial sensors, the tests after repairs 

proposal uses periodic tests described in 

sections B–2, B–3, and B–4. For USTs 

with continuous interstitial sensors, 

owners and operators must conduct 

vacuum, pressure, or liquid tests to 

ensure the secondary containment area 

is operating as intended. EPA is 

proposing to require tests because 

sensors alone cannot immediately 

determine whether repairs were 

completed properly. Vacuum, pressure, 

and liquid tests will be able to ensure 

the adequacy of the repair by evaluating 

the interstitial area. Tests after repairs 

will only apply to those UST 

components being repaired and not to 

all components at the UST site. 

EPA is proposing that tests of spill, 

overfill, and interstitial areas after a 

repair occur within 30 days of the 

repair. EPA chose 30 days to be 

consistent with the time frame for the 

tightness testing requirement after 

repairing tanks and piping in § 280.33. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Should EPA consider changing the 

time frame for conducting an interstitial, 

spill, or overfill test from 30 days to 

before returning the UST system to 

service? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

6. Phase Out Vapor Monitoring and 

Groundwater Monitoring as Release 

Detection Methods 

What is EPA proposing? 

EPA is proposing to phase out vapor 

monitoring and groundwater monitoring 

as methods of release detection for tanks 

and piping in § 280.43. 

Owners and operators of UST systems 

installed before the effective date of the 

final UST regulation will have five years 

to comply with another release 

detection monitoring method in 40 CFR 

280, subpart D. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

Although EPA is proposing new and 

replaced tanks and piping use 

interstitial monitoring (see section A–2), 

UST systems installed before the 

effective date of the final UST regulation 

may continue to use internal or 

interstitial release detection methods 

listed in subpart D of the 1988 UST 

regulation. Automatic tank gauging and 

statistical inventory reconciliation are 

internal monitoring methods and are 

characterized by activities within the 

tank or piping to monitor any 

discrepancies. Groundwater monitoring 

and vapor monitoring are external 

monitoring methods and are 

characterized by monitoring external 

areas (specifically groundwater or soilvapor) that surround an UST system. An 

interstitial method monitors the space 

between tank or piping walls and 

detects a release before it reaches the 

environment. 

EPA is proposing to phase out the two 

external release detection methods— 

vapor monitoring and groundwater 

monitoring—because these methods 

detect releases well after they enter the 

environment. In addition, there are 

inherent problems with installing and 

confirming proper use of these methods. 

As methods of release detection, they 

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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 71743 

67E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

are less protective of the environment 

than others. Regulators inspecting UST 

systems report common problems they 

encounter when inspecting UST 

systems using vapor or groundwater 

monitoring methods, such as an 

insufficient number of wells or wells 

improperly located to sufficiently 

monitor for potential releases. 

Vapor monitoring problems pertain to 

confirming whether certain site 

conditions exist. In particular, 

surrounding soil should be sufficiently 

porous to readily allow diffusion into 

the excavation area; the ability to 

measure vapors should not be affected 

by groundwater, rainfall, or soil 

moisture; and background 

contamination should not interfere with 

monitoring methods. 

A commonly encountered 

groundwater monitoring problem is that 

groundwater, at times, can be more than 

20 feet from the ground surface, due to 

seasonal water table variations. 

According to the 1988 UST regulation, 

groundwater must never be more than 

20 feet from the ground surface and well 

slotting must be designed to allow entry 

of regulated substances on the water 

table into the well under both high and 

low groundwater conditions. 

Unfortunately, many wells are not 

installed appropriately resulting in the 

depth of groundwater requirement not 

being met. 

Many UST facilities do not have site 

assessments that confirm whether site 

conditions support use of vapor 

monitoring and groundwater monitoring 

release detection. In instances when site 

assessments are available, they are often 

not thorough enough to verify whether 

regulatory requirements are met. 

Without site assessments, regulators are 

unable to determine whether site 

conditions are met. Reassessing sites to 

verify if site conditions support use of 

vapor monitoring or groundwater 

monitoring is intrusive and costly. Some 

UST facilities switch between vapor 

monitoring and groundwater 

monitoring, depending on seasonal 

variations. This practice further 

complicates using these methods, such 

as whether groundwater rendered the 

vapor monitoring inoperable or whether 

the wells are designed for both methods. 

Even if optimal operating conditions are 

met in both of these external methods, 

by the time a release is detected, 

contamination has already significantly 

impacted the environment. 

In contrast, internal release detection 

methods have an advantage over 

external monitoring methods. Internal 

methods provide an early warning to 

owners and operators because they 

indicate unusual operating conditions, 

such as water in the tank or incremental 

loss of product. An early warning alerts 

owners and operators to take action and 

minimize releases to the environment. 

EPA estimates approximately 5 

percent of all active UST systems are 

using vapor monitoring or groundwater 

monitoring to comply with release 

monitoring requirements.67 Because of 

the time it may take for owners and 

operators to convert to another method 

of release detection, five years will 

allow sufficient time for UST system 

owners and operators to begin using 

another method of release detection. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Is five years for owners and 

operators using vapor monitoring and 

groundwater monitoring to switch to 

another method too short, too long, or 

an appropriate length? 

• Are there circumstances at existing 

facilities that would warrant a subset of 

UST systems to use vapor monitoring or 

groundwater monitoring beyond the 

proposed period of five years. If so, 

what are the circumstances? 

• Is EPA’s assumption of 5 percent 

accurate for the number of active UST 

systems using vapor monitoring or 

groundwater monitoring to comply with 

release detection requirements? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

7. Interstitial Monitoring Results, 

Including Interstitial Alarms, Under 

Subpart E 

What is EPA proposing? 

EPA is proposing clarifications of 

UST owners’ and operators’ 

responsibilities regarding interstitial 

monitoring results, including alarms, 

under 40 CFR part 280, subpart E. 

Specifically, EPA is proposing these 

changes: 

• Section 280.50(b)—add interstitial 

spaces of secondarily contained UST 

systems and provide examples of 

unusual operating conditions. 

• Section 280.50(c)—clarify that an 

alarm during release detection 

monitoring is subject to the reporting 

requirement. 

• Section 280.52(a)—require owners 

and operators of UST systems with 

secondary containment using interstitial 

monitoring follow integrity test 

requirements (proposed in section B–4) 

to confirm a suspected release, and 

clarify actions UST owners and 

operators must take if a test confirms a 

leak or indicates a release exists. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

The 1988 UST regulation adequately 

covers interstitial monitoring. 

Nonetheless, EPA is proposing these 

changes to reinforce that a leak into an 

interstitial space of a secondarily 

contained UST system is also a potential 

threat to the environment and must be 

investigated, addressed, and as 

necessary, reported. 

In section A–2, EPA is proposing 

interstitial monitoring for all new or 

replaced tanks and piping. As new 

systems are installed, interstitial 

monitoring will become more widely 

used as a method of release detection. 

With this in mind, EPA wants UST 

owners and operators to clearly 

understand how interstitial monitoring 

results, including interstitial alarms 

(and alarms associated with other types 

of release detection monitoring if 

interstitial monitoring is not used), must 

be handled. 

In the 1988 UST regulation, EPA 

intended that product or water in the 

interstice, and alarms signifying the 

presence of those conditions, are 

unusual operating conditions and must 

be investigated appropriately. However, 

EPA did not indicate how UST owners 

and operators were to address 

discrepancies with interstitial spaces. 

As a result, some UST owners and 

operators were uncertain about how best 

to respond to interstitial monitoring 

results and alarms associated with 

interstitial monitoring that indicate a 

release may have occurred. This section 

provides specific information to 

alleviate uncertainty for owners and 

operators. 

• Add interstitial spaces of 

secondarily contained UST systems and 

provide examples of unusual operating 

conditions 

Æ Two unusual operating condition 

examples—water in the interstitial 

space (presumably from a breach in the 

secondary wall) and product in the 

interstitial space (presumably from a 

breach in the primary wall)—are 

important along with other suspected 

release conditions listed in the 1988 

UST regulation. Water or product in the 

interstitial space indicates there is a 

problem with the UST system that 

needs to be resolved. As a result, EPA 

is specifying these conditions as 

unusual operating conditions and will 

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71744 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

68E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

require UST owners and operators 

investigate and address them. 

• Clarify that an alarm during release 

detection monitoring, which indicates a 

potential release or compromise of the 

interstitial space, is subject to the 

reporting requirement 

Æ UST owners and operators must 

appropriately address release detection 

monitoring alarms. For example, 

continuously monitored systems will 

trigger an alarm indicating a potential 

release or that the interstitial space has 

been compromised. UST owners and 

operators must appropriately address all 

alarms in the same manner. EPA is 

adding interstitial monitoring in subpart 

E to emphasize its importance because 

the proposed secondary containment 

requirement for new and replaced 

system discussed in section A–2 will 

increase the use of interstitial 

monitoring. UST owners and operators 

will not be required to report alarms 

from defective equipment or false 

alarms as suspected releases. Also, UST 

owners and operators will not have to 

report leaks that are contained in the 

interstitial space, but they must 

investigate and repair the problems. 

However, as required in § 280.43(g), 

groundwater, soil moisture, or rainfall 

must not render the testing or sampling 

method inoperative so that a release 

could go undetected for more than 30 

days. Finally, regulated substance in the 

interstitial space poses safety concerns 

and can also affect testing and sampling 

methods. For safety reasons, owners and 

operators must ensure the method of 

interstitial monitoring continues to 

operate and should always remove any 

regulated substance from the interstitial 

area. 

• Require owners and operators of 

UST systems with secondary 

containment using interstitial 

monitoring follow integrity test 

requirements (proposed in section B–4) 

to confirm a suspected release and 

clarify actions UST owners and 

operators must take if a test confirms a 

leak or indicates a release exists 

Æ Requiring UST owners and 

operators to follow integrity test 

requirements of the interstitial area will 

ensure both inner and outer walls are 

checked when investigating a suspected 

release. EPA also is taking the position 

that it is important to clarify actions 

UST owners and operators must take if 

a test confirms a leak or indicates a 

release exists. If a leak is confirmed, 

UST owners and operators must correct 

or address the problem. In addition to 

options listed in the 1988 UST 

regulation, EPA is proposing to include 

closure as another option. Nothing in 

this proposal changes the requirement 

in subpart F for UST owners and 

operators to take corrective action if a 

release occurred. 

What issues related to this change does 

EPA request comment or additional 

data on? 

EPA did not identify specific issues 

for comment. 

E. General Updates 

1. Incorporate Newer Technologies 

What is EPA proposing? 

EPA is proposing to include 

technologies developed since issuing 

the 1988 UST regulation and clarify the 

use of those technologies. EPA is 

proposing these changes: 

• Tanks—revise steel-fiberglassreinforced-plastic composite in 

§ 280.20(a)(3) to steel tank clad or 

jacketed with a non-corrodible material. 

UST owners and operators will be able 

to use jacketed tanks to meet EPA’s 

proposed requirement for secondary 

containment and interstitial monitoring 

described in section A–2. 

• Piping—revise fiberglass-reinforced 

plastic in § 280.20(b)(1) to noncorrodible material. This will allow UST 

owners and operators to install other 

piping, such as flexible plastic, that 

does not corrode. 

• Release detection—add two release 

detection options: Continuous in-tank 

leak detection (CITLD) and statistical 

inventory reconciliation (SIR). UST 

owners and operators will be able to use 

these additional options to meet release 

detection requirements in § 280.40, as 

long as the methods meet the following: 

Æ CITLD—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. 

Æ SIR—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. 

EPA is proposing to list three 

additional continuous interstitial 

monitoring methods in § 280.43(g): 

Liquid-filled, pressure, and vacuum 

interstitial monitoring. These methods 

must be capable of detecting a breach in 

both the inner and outer walls of the 

tank and piping. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

Since EPA promulgated the 1988 UST 

regulation, newer tank, piping, and 

release detection technologies have been 

developed and are being used. EPA is 

proposing this change to acknowledge 

newer UST related technologies and 

clarify the use of these technologies. 

Clad and Jacketed Tanks 

The 1988 UST regulation allows these 

tank technologies: Coated and 

cathodically protected steel; fiberglass 

reinforced plastic; steel-fiberglassreinforced-plastic composite; and metal 

without additional corrosion protection, 

provided that a corrosion expert 

determines the site is not corrosive 

enough to cause a release from corrosion 

during the tank’s life. The 1988 

regulation also allows use of other tank 

technologies that implementing 

agencies determine are no less 

protective of human health and the 

environment than those listed above. 

Additional non-corrodible materials are 

now used as claddings for steel tanks, 

and they are as effective at preventing 

corrosion as technologies in the 1988 

regulation. EPA considers a cladding to 

be a non-corrosive dielectric material, 

bonded to the steel tank with sufficient 

durability to prevent corrosion during 

the tank’s life. EPA did not include 

jacketed tanks in the 1988 regulation, 

even though they are no less protective 

of human health and the environment 

than technologies listed in the 

regulation. EPA considers jacketed to be 

a non-corrosive dielectric material that: 

Is constructed as secondary containment 

(jacketed) around a steel tank; has 

sufficient durability to prevent 

corrosion during the tank’s life; and 

prevents a regulated substance released 

from the primary steel tank wall from 

reaching the environment. EPA 

estimates 10 percent of regulated tanks 

today are jacketed with a non-corrodible 

material and 18 percent are clad with a 

non-corrodible material.68

Non-Corrodible Piping 

The 1988 UST regulation allows 

fiberglass-reinforced plastic piping as a 

non-corrodible piping option, as well as 

other piping technologies that 

implementing agencies determine are no 

less protective of human health and the 

environment than those in the 

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69E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical And Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

70National Work Group On Leak Detection 

Evaluation’s (NWGLDE) List Of Leak Detection 

Evaluations for Storage Tank Systems: http:// 

www.nwglde.org/. 

71UST Technical compendium, question and 

answer number 21: http://epa.gov/oust/compend/ 

rd.htm. 

regulation. Non-corrodible piping not 

made of fiberglass-reinforced plastic (in 

particular, flexible plastic piping) was 

installed beginning in the 1990s and has 

evolved over the past 20 years. Flexible 

plastic piping is made of various noncorrodible materials, such as 

polyethylene and polyurethane. EPA 

estimates at least 13 percent of regulated 

piping currently installed is made of 

non-corrodible materials that are not 

fiberglass-reinforced plastic.69 Revising 

fiberglass-reinforced piping to noncorrodible piping will allow UST 

owners and operators to install other 

types of non-corrodible piping, such as 

flexible plastic, without requiring 

implementing agencies to make a 

determination. 

Release Detection Technologies 

The 1988 UST regulation allows UST 

owners and operators to use other 

methods that meet release detection 

performance criteria listed at 

§ 280.43(h). Although CITLD and SIR 

are allowed under § 280.43(h), it is 

important to specify both by name. 

CITLD 

The 1988 UST regulation allows ATG 

systems as a recognized method of 

release detection. However, it is 

generally listed with performance 

requirements consistent with the 

method being used to perform a static 

test. ATG relies on system down time, 

absent product delivery or dispensing 

activities. In static testing mode, the 

ATG system analyzes product level and 

determines whether or not a leak is 

present during that down time. Yet for 

years, UST owners and operators used 

ATG systems as a means of continually 

monitoring tanks for potential releases. 

Continuous in-tank leak detection has 

evolved as a reliable means of providing 

release detection equivalent to other 

methods specified in § 280.41. Within 

this category of methods, EPA will also 

allow continuous in-tank methods 

where the system incrementally gathers 

measurements to determine the tank’s 

leak status within the 30-day monitoring 

period. Today’s proposal formally 

recognizes CITLD as a release detection 

method in § 280.43(d). Per § 280.41, a 

conclusive pass or fail result must be 

obtained within the 30-day monitoring 

period. All monitoring records must be 

maintained according to § 280.45. 

Another method of release detection is 

required in the event of an inconclusive 

result. UST owners and operators may 

perform an in-tank static test using the 

ATG system or another method in 

subpart D. 

SIR 

Today’s proposal adds SIR by name to 

the final UST regulation and clarifies its 

use. SIR must: 

• Report a quantitative result with 

calculated leak rate; 

• Be capable of detecting a leak rate 

of at least 0.2 gallon per hour with a 

probability of detection of not less than 

0.95 and a probability of false alarm of 

no greater than 0.05; and 

• Use a threshold that does not 

exceed one-half the minimum 

detectable leak rate. 

A quantitative result with a calculated 

leak rate is necessary to effectively 

perform release detection using SIR. 

Some SIR methods are qualitative based 

methods that simply provide a result of 

pass or fail without any additional 

information for UST owners and 

operators to gauge the validity of the 

reported results. Based on information 

in NWGLDE’s list,70 approximately 15 

percent of SIR methods listed are 

qualitative-based methods. Many state 

UST implementing agencies already 

only allow the use of quantitative 

methods. Today’s proposal will no 

longer allow qualitative SIR as an option 

for meeting the release detection 

requirement. 

Consistent with some of the release 

detection methods described in 

§ 280.43(h), EPA maintained the 

performance standard of 0.2 gallon per 

hour with a probability of detection of 

0.95 and a probability of false alarm of 

0.05. However, we are not requiring the 

additional standard of 150 gallons 

within a month per § 280.43(h). EPA 

included this additional standard in the 

1988 UST regulation to primarily 

address external methods. EPA added 

the standard because it is more difficult 

to demonstrate that external methods 

meet a small hourly leak rate than a 

larger, though equivalent, volume. SIR 

is an in-tank monitoring method and the 

0.2 gallon per hour standard with a 

probability of detection (Pd) of 0.95 and 

a probability of false alarm (Pfa) of 0.05 

is the applicable standard to use. 

SIR must also meet EPA’s established 

requirement for probability of detection 

and probability of false alarm. In a 

normal probability distribution, SIR 

data typically analyzed through the 

calculation of the reportable values of 

minimum detectable leak rate (MDL) 

and the leak declaration threshold (T) 

are related as follows: 

• MDL is always greater than T 

• Pd = (1–Pfa), then MDL = 2 times 

T (i.e., T = 1⁄2 MDL). 

Any analysis of data indicating a 

threshold value greater than one-half 

minimum detectable leak rate should be 

appropriately investigated as a 

suspected release. 

In this proposal, EPA is addressing 

the following issues associated with 

using SIR: 

• SIR is not the same as inventory 

control 

Æ For years, users, vendors, and 

regulators incorrectly linked SIR to the 

inventory control method described in 

§ 280.43(a). SIR is more sophisticated 

than inventory control and not subject 

to the same requirement to combine it 

with tank tightness testing and limit its 

use to 10 years. Note § 280.50(c)(2) 

states, ‘‘In the case of inventory control, 

a second month of data does not 

confirm the initial result.’’ This 

language allowed owners and operators 

to use a second month of inventory 

control data to confirm initial possible 

failure results. However, this allowance 

does not apply to SIR. 

• Results for release detection, 

including SIR, are required within the 

30-day monitoring period 

Æ EPA considered including a 

requirement that UST owners and 

operators obtain a record of SIR results 

within 30 days. However, we believe 

this requirement is adequately covered 

in 40 CFR part 280, subpart D of the 

1988 UST regulation. As § 280.41 states, 

‘‘Tanks * * * must be monitored for 

releases at least every 30 days using one 

of the methods listed in § 280.43(d) 

through (h) * * *’’. In today’s proposal, 

EPA is adding a subsection to formally 

recognize SIR. A definitive result of pass 

or fail that identifies the tank’s leak 

status is required within the 30-day 

monitoring period for all release 

detection methods, including SIR. 

• Owners and operators must use 

another method of release detection if 

SIR results are inconclusive results 

Æ For years, implementing agencies 

have been concerned about inconclusive 

results when using SIR for release 

detection. In 1993, EPA issued a policy 

regarding inconclusive SIR results,71

which says all methods used to meet 

release detection requirements in 

§ 280.41 must obtain a conclusive result 

of pass or fail within the 30-day 

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monitoring period. All monitoring 

records must be maintained according 

to § 280.45. For SIR, this means UST 

owners and operators must obtain a 

report determining release status within 

the 30-day monitoring period. Another 

method of release detection is required: 

when results are inconclusive; prior to 

sufficient data being gathered to 

generate an initial report at startup; or 

when a report is not available for any 

month of monitoring. 

• Initial SIR report at startup 

Æ SIR methods need to gather data 

over a period of time in order to 

determine whether the tank is leaking. 

In some cases, regulatory agencies have 

addressed significant lag times between 

when data is collected to when a tank 

status determination is available to 

owners and operators. NWGLDE’s list of 

third-party evaluated methods indicates 

the data collection period required for 

SIR methods ranges from 15 to 90 days. 

However, most methods require 

between 23 to 30 days to gather 

sufficient measurements that provide an 

accurate result. Any method that goes 

beyond a 30-day monitoring period is 

inconsistent with the established 

requirement and does not protect 

human health and the environment. It is 

imperative that UST owners and 

operators determine the status of their 

tanks within the established monitoring 

period to avoid increased risk of 

contamination. 

Æ EPA recognizes that a rolling 

collection of data may be used to 

analyze the leak status of the tank. For 

example, data from the previous 30-day 

monitoring period may be added to 

measurements taken within the current 

30-day monitoring period to determine 

whether or not the tank is leaking. 

However, the majority of data must 

come from the current 30-day period 

and another method of release detection 

must be used to monitor the tank during 

this startup period. Subsequent 

monitoring continuously rolls data 

forward and provides sufficient data in 

a timely manner to determine pass or 

fail. 

Interstitial Monitoring 

EPA is proposing to add three 

methods of interstitial monitoring— 

vacuum, pressure, and liquid-filled 

methods—in § 280.43(g)(4). Although 

these interstitial methods are covered 

under the general description provided 

in § 280.43(g), These methods should be 

included as distinct interstitial 

monitoring options. Each of these 

methods must be capable of detecting 

breaches in both the inner and outer 

walls of secondarily contained tanks 

and secondarily contained piping. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Should EPA require specific 

performance standards for vacuum, 

pressure, and liquid-filled interstitial 

monitoring? If so, what should the 

performance standards be and why? 

• Are there performance standards for 

release detection methods that should 

be added or removed? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

2. Updates to Codes of Practice Listed in 

the UST Regulation 

What Is EPA Proposing? 

EPA is proposing to update the codes 

of practice (also called standards or 

recommended practices) listed in the 

1988 UST regulation to reflect new 

codes, changes to code names, and new 

nationally recognized associations and 

independent testing laboratories. EPA 

proposes to update, add, or remove 

codes of practice to the following 

specific areas of the 1988 UST 

regulation: 

Section 280.11—Interim Prohibition for 

Deferred UST Systems 

Updated Codes: 

—NACE International Recommended 

Practice RP 0285, Corrosion Control of 

Underground Storage Tank Systems 

by Cathodic Protection 

Added Codes: 

—NACE International Standard Practice 

SP 0169, Control of External 

Corrosion on Underground or 

Submerged Metallic Piping Systems 

—American Petroleum Institute 

Recommended Practice 1632, 

Cathodic Protection of Underground 

Petroleum Storage Tanks and Piping 

Systems 

—Steel Tank Institute Recommended 

Practice R892, Recommended Practice 

for Corrosion Protection of 

Underground Piping Networks 

Associated with Liquid Petroleum 

Storage and Dispensing Systems 

Section 280.20(a)(1)—Fiberglass Tanks 

Updated Codes: 

—Underwriters Laboratories Standard 

1316, Glass-Fiber-Reinforced Plastic 

Underground Storage Tanks for 

Petroleum Products, Alcohols, and 

Alcohol-Gasoline Mixtures 

—Underwriters Laboratories of Canada 

S615, Standard for Reinforced Plastic 

Underground Tanks for Flammable 

and Combustible Liquids 

Removed Codes: 

—American Society of Testing and 

Materials Standard D4021–86, 

Standard Specification for GlassFiber-Reinforced Polyester 

Underground Petroleum Storage 

Tanks 

Section 280.20(a)(2)—Steel Tanks With 

Cathodic Protection 

Updated Codes: 

—Steel Tank Institute Specification stiP3® Specification and Manual for 

External Corrosion Protection of 

Underground Steel Storage Tanks 

—Underwriters Laboratories Standard 

1746, Standard for External Corrosion 

Protection Systems for Steel 

Underground Storage Tanks 

—Underwriters Laboratories of Canada 

S603, Standard for Steel Underground 

Tanks for Flammable and 

Combustible Liquids 

—Underwriters Laboratories of Canada 

S603.1, Standard for External 

Corrosion Protection Systems for Steel 

Underground Tanks for Flammable 

and Combustible Liquids 

—Underwriters Laboratories of Canada 

S631, Standard for Isolating Bushings 

for Steel Underground Tanks 

Protected with External Corrosion 

Protection Systems 

—NACE International Recommended 

Practice RP 0285, Corrosion Control of 

Underground Storage Systems by 

Cathodic Protection 

—Underwriters Laboratories Standard 

58, Standard for Steel Underground 

Tanks for Flammable and 

Combustible Liquids 

Added Codes: 

—Steel Tank Institute Standard F841, 

Standard for Dual Wall Underground 

Steel Storage Tanks 

Section 280.20(a)(3)—Clad or Jacketed 

Steel Tanks 

Updated Codes: 

—Underwriters Laboratories Standard 

1746, Standard for External Corrosion 

Protection Systems for Steel 

Underground Storage Tanks 

Added Codes: 

—Steel Tank Institute Specification 

F894, ACT–100® Specification for 

External Corrosion Protection of FRP 

Composite Steel USTs 

—Steel Tank Institute Specification 

F961, ACT–100–U® Specification for 

External Corrosion Protection of 

Composite Steel Underground Storage 

Tanks 

—Steel Tank Institute Specification 

F922, Steel Tank Institute 

Specification for Permatank®

Removed Codes: 

—Association for Composite Tanks 

ACT–100, Specification for the 

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Fabrication of FRP Clad Underground 

Storage Tanks 

Section 280.20(a)(6)—Secondary 

Containment Tanks (New Addition to 

the Regulation—See Section A–2) 

Added Codes: 

—Underwriters Laboratories Standard 

58, Standard for Steel Underground 

Tanks for Flammable and 

Combustible Liquids 

—Underwriters Laboratories Standard 

1316, Glass-Fiber-Reinforced Plastic 

Underground Storage Tanks for 

Petroleum Products, Alcohols, and 

Alcohol-Gasoline Mixtures 

—Underwriters Laboratories Standard 

1746, Standard for External Corrosion 

Protection Systems for Steel 

Underground Storage Tanks 

—Steel Tank Institute Standard F841, 

Standard for Dual Wall Underground 

Steel Storage Tanks 

—Steel Tank Institute Specification 

F922, Steel Tank Institute 

Specification for Permatank®

Section 280.20(b)(1)—Non-corrodible 

Piping 

Updated Codes: 

—Underwriters Laboratories Standard 

971, Standard for Non-Metallic 

Underground Piping for Flammable 

Liquids 

—Underwriters Laboratories of Canada 

Standard S660, Standard for NonMetallic Underground Piping for 

Flammable Liquids 

Removed Codes: 

—Underwriters Laboratories Standard 

567, Pipe Connectors for Flammable 

and Combustible and LP Gas 

—Underwriters Laboratories of Canada 

Standard CAN 4–S633–M81, Flexible 

Underground Hose Connectors 

Section 280.20(b)(2)—Steel Piping With 

Cathodic Protection 

Updated Codes: 

—American Petroleum Institute 

Recommended Practice 1632, 

Cathodic Protection of Underground 

Petroleum Storage Tanks and Piping 

Systems 

—NACE International Standard Practice 

SP 0169, Control of External 

Corrosion on Underground or 

Submerged Metallic Piping Systems 

Added Codes: 

—Underwriters Laboratories Subject 

971A, Outline of Investigation for 

Metallic Underground Fuel Pipe 

—Steel Tank Institute Recommended 

Practice R892, Recommended Practice 

for Corrosion Protection of 

Underground Piping Networks 

Associated with Liquid Petroleum 

Storage and Dispensing Systems 

—NACE International Recommended 

Practice RP 0285, Corrosion Control of 

Underground Storage Systems by 

Cathodic Protection 

Removed Codes: 

—National Fire Protection Association 

Standard 30, Flammable and 

Combustible Liquids Code 

—American Petroleum Institute 

Publication 1615, Installation of 

Underground Petroleum Storage 

Systems 

Section 280.20(b)(3)—Metal Piping 

Without Additional Corrosion 

Protection 

Removed Codes: 

—National Fire Protection Association 

Standard 30, Flammable and 

Combustible Liquids Code 

—National Association of Corrosion 

Engineers Standard RP–01–69, 

Control of External Corrosion on 

Submerged Metallic Piping Systems 

Section 280.20(b)(5)—Secondary 

Containment Piping (New Addition to 

the Regulation—See Section A–2) 

Added Codes: 

—Underwriters Laboratories Standard 

971, Standard for Non-Metallic 

Underground Piping for Flammable 

Liquids 

—Underwriters Laboratories Subject 

971A, Outline of Investigation for 

Metallic Underground Fuel Pipe 

Section 280.20(d)—Installation 

Updated Codes: 

—American Petroleum Institute 

Publication 1615, Installation of 

Underground Petroleum Storage 

System 

—Petroleum Equipment Institute 

Publication RP100, Recommended 

Practices for Installation of 

Underground Liquid Storage Systems 

Added Codes: 

—National Fire Protection Association 

Standard 30, Flammable and 

Combustible Liquids Code 

—National Fire Protection Association 

Standard 30A, Code for Motor Fuel 

Dispensing Facilities and Repair 

Garages 

Removed Codes: 

—American National Standards 

Institute Standard B31.3, Petroleum 

Refinery Piping 

—American National Standards 

Institute Standard B31.4, Liquid 

Petroleum Transportation Piping 

System 

Section 280.21—Lining Inspection 

Standards (New Addition to the 

Regulation—See Section E–3) 

Added Codes: 

—American Petroleum Institute 

Recommended Practice 1631, Interior 

Lining and Periodic Inspection of 

Underground Storage Tanks 

—National Leak Prevention Association 

Standard 631, Entry, Cleaning, 

Interior Inspection, Repair, and Lining 

of Underground Storage Tanks 

—Ken Wilcox Associates Recommended 

Practice, Recommended Practice for 

Inspecting Buried Lined Steel Tanks 

Using a Video Camera 

Section 280.21(e)—Upgrade 

Requirements for Previously Deferred 

UST Systems (New Addition to the 

Regulation—See Section C) 

Added Codes: 

—NACE International Recommended 

Practice RP 0285, Control of 

Underground Storage Tank Systems 

by Cathodic Protection 

—NACE International Standard Practice 

SP 0169, Control of External 

Corrosion on Underground or 

Submerged Metallic Piping Systems 

—National Leak Prevention Association 

Standard 631, Entry, Cleaning, 

Interior Inspection, Repair, and Lining 

of Underground Storage Tanks 

—American Society for Testing and 

Materials Standard G158, Standard 

Guide for Three Methods of Assessing 

Buried Steel Tanks 

Section 280.30—Spill and Overfill 

Control 

Updated Codes: 

—National Fire Protection Association 

Standard 385, Standard for Tank 

Vehicles for Flammable and 

Combustible Liquids 

—American Petroleum Institute 

Recommended Practice 1621, Bulk 

Liquid Stock Control at Retail Outlets 

Added Codes: 

—American Petroleum Institute 

Recommended Practice 1007, Loading 

and Unloading of MC 306/DOT 406 

Cargo Tank Motor Vehicles 

Removed Codes: 

—National Fire Protection Association 

Standard 30, Flammable and 

Combustible Liquids Code 

Section 280.31—Operation and 

Maintenance of Corrosion Protection 

Updated Codes: 

—NACE International Recommended 

Practice RP 0285, Control of 

Underground Storage Tank Systems 

by Cathodic Protection 

Added Codes: 

—NACE International Standard Practice 

SP 0169, Control of External 

Corrosion on Underground or 

Submerged Metallic Piping Systems 

—NACE International Test Method TM 

0101, Measurement Techniques 

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72E2, Incorporated, memoranda and analyses 

submitted under Contract EP–W–05–018, ‘‘U.S. 

Environmental Protection Agency. Underground 

Storage Tanks/Leaking Underground Storage Tanks 

Analytical and Technical Support.’’ These 

supporting materials can be found in the docket for 

the proposed rulemaking. 

Related to Criteria for Cathodic 

Protection on Underground or 

Submerged Metallic Tank Systems 

—NACE International Test Method 

TM0497, Measurement Techniques 

Related to Criteria for Cathodic 

Protection on Underground or 

Submerged Metallic Piping Systems 

—Steel Tank Institute Recommended 

Practice R051, Cathodic Protection 

Testing Procedures for sti-P3 USTs 

Section 280.32—Compatibility 

Removed Codes: 

—American Petroleum Institute 

Publication 1626, Storing and 

Handling Ethanol and GasolineEthanol Blends at Distribution 

Terminals and Service Stations 

—American Petroleum Institute 

Publication 1627, Storage and 

Handling of Gasoline-Methanol/ 

Cosolvent Blends at Distribution 

Terminals and Service Stations 

Section 280.33—Repairs 

Updated Codes: 

—National Fire Protection Association 

Standard 30, Flammable and 

Combustible Liquids Code 

—American Petroleum Institute 

Recommended Practice RP 2200, 

Repairing Crude Oil, Liquified 

Petroleum Gas, and Product Pipelines 

—American Petroleum Institute 

Recommended Practice RP 1631, 

Interior Lining and Periodic 

Inspection of Underground Storage 

Tanks 

—National Leak Prevention Association 

Standard 631, Entry, Cleaning, 

Interior Inspection, Repair, and Lining 

of Underground Storage Tanks 

Added Codes: 

—National Fire Protection Association 

Standard 326, Safeguarding of Tanks 

and Containers for Entry, Cleaning, or 

Repair 

—Steel Tank Institute Recommended 

Practice R972, Recommended Practice 

for the Addition of Supplemental 

Anodes to sti-P3® Tanks 

—NACE International Recommended 

Practice RP 0285, Control of 

Underground Storage Tank Systems 

by Cathodic Protection 

—Fiberglass Tank and Pipe Institute 

Recommended Practice T–95–02, 

Remanufacturing of Fiberglass 

Reinforced Plastic (FRP) Underground 

Storage Tanks 

Section 280.36—Secondary 

Containment Testing (New Addition to 

the Regulation—See Section B–4) 

Added Codes: 

—Steel Tank Institute Recommended 

Practice R012, Recommended Practice 

for Interstitial Tightness Testing of 

Existing Underground Double Wall 

Steel Tanks 

—Fiberglass Tank and Pipe Institute 

Protocol, Field Test Protocol for 

Testing the Annular Space of Installed 

Underground Fiberglass Double and 

Triple-Wall Tanks with Dry Annular 

Space 

Section 280.37—Walkthrough 

Inspections (New Addition to the 

Regulation—See Section B–1) 

Added Codes: 

—Petroleum Equipment Institute 

Recommended Practice RP 900, 

Recommended Practices for the 

Inspection and Maintenance of UST 

Systems 

Section 280.43(a)—Inventory Control 

Updated Codes: 

—American Petroleum Institute 

Recommended Practice RP 1621, Bulk 

Liquid Stock Control at Retail Outlets 

Section 280.43(g)—Interstitial 

Monitoring 

Removed Codes: 

—Steel Tank Institute Standard F841, 

Standard for Dual Wall Underground 

Steel Storage Tanks (moved to new 

section 280.20(a)(6)) 

Section 280.71—Permanent Closure 

Updated Codes: 

—American Petroleum Institute 

Recommended Practice RP 1604, 

Closure of Underground Petroleum 

Storage Tanks 

—American Petroleum Institute 

Recommended Practice RP 1631, 

Interior Lining and Periodic 

Inspection of Underground Storage 

Tanks 

—The National Institute for 

Occupational Safety and Health 

Publication 80–106, Criteria for a 

Recommended Standard * * * 

Working in Confined Space 

Added Codes: 

—American Petroleum Institute 

Recommended Practice 2016, 

Guidelines and Procedures for 

Entering and Cleaning Petroleum 

Storage Tanks 

—National Fire Protection Association 

Standard 326, Safeguarding of Tanks 

and Containers for Entry, Cleaning, or 

Repair 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing this change to 

update the codes of practice associated 

with regulated UST systems. The 1988 

UST regulation relies heavily on codes 

of practice developed by nationally 

recognized associations or independent 

testing laboratories. 

EPA reviewed information on more 

than 200 codes of practice from more 

than 25 code-making groups that have 

been developed or revised since the 

1988 regulation.72 As a result of this 

review, EPA proposes to add 18 codes 

of practice not previously listed in the 

1988 regulation, remove or move 12, 

and update all codes of practice in the 

1988 UST regulation (see the specific 

additions, updates, and removals listed 

above). EPA is proposing to add the 18 

codes of practice that were previously 

not listed because they are applicable to 

the UST regulation and did not exist 

when EPA originally promulgated the 

1988 UST regulation. EPA is proposing 

to remove or move the 12 codes of 

practice in the 1988 UST regulation for 

one of the following reasons: 

• The code of practice is out of date, 

no longer available, was withdrawn, or 

rescinded; 

• The code of practice did not 

provide any information appropriate to 

the section of the regulation where it 

was referenced; 

• The information in the code of 

practice did not adequately address the 

part of the regulation where it was 

referenced; or 

• The code of practice is no longer 

needed. 

For example, the Association for 

Composite Tanks ACT–100 tank 

standard was listed in § 280.20(a)(3) as 

a code of practice for meeting the clad 

tank requirement. EPA is removing this 

code of practice because both the 

association and code of practice no 

longer exist. 

In several cases, EPA is proposing to 

move a code of practice from one 

section of the 1988 UST regulation to 

another section. For example, EPA is 

proposing to move Steel Tank Institute 

Standard F841, Standard for Dual Wall 

Underground Steel Storage Tanks from 

§ 280.43(g)—interstitial monitoring to 

§ 280.20(a)(6)—secondary containment 

tanks. EPA is proposing this because we 

are adding secondary containment 

requirements to the performance 

standards for new UST systems portion 

of this proposed UST regulation. 

Note: EPA is aware of at least one code of 

practice (Petroleum Equipment Institute 

standard for testing of spill, overfill, 

interstitial areas, and release detection) 

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currently being developed that could be 

potentially relevant to this proposed UST 

regulation. Other standards may be 

developed before EPA publishes a final UST 

regulation. If so, EPA will consider including 

them in the final UST regulation. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Should other codes of practice be 

added to or removed from the UST 

regulation? If so, please provide EPA 

with information about the code and the 

specific location in the UST regulation 

where the code should be included or 

removed. 

• The regulations at § 280.20(d) 

require that all tanks and piping be 

properly installed in accordance with a 

code of practice developed by a 

nationally recognized association or 

independent testing laboratory and in 

accordance with manufacturer’s 

instructions. Since the installation 

codes of practice also address other UST 

system components such as spill and 

overfill, should EPA consider revising 

§ 280.20(d) such that all portions of the 

UST system must be installed according 

to a code of practice and according to 

manufacturer’s instructions? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

3. Updates to Remove Old Upgrade and 

Implementation Deadlines 

What is EPA proposing? 

EPA is proposing to revise the UST 

regulation to remove references to the 

1998 deadline and old phase-in 

schedules, while continuing to allow 

testing of corrosion protection and 

release detection. For those deferred 

UST systems EPA is proposing to 

regulate, we are proposing those 

systems be allowed to upgrade with 

spill, overfill, and corrosion protection. 

EPA is proposing the following specific 

revisions: 

Revise upgrading of existing UST 

systems in the 1988 UST regulation 

(§ 280.21). 

• Remove the 1998 upgrade deadline 

references, but continue to allow: 

Æ Testing of internally-lined USTs; 

Æ Tanks and piping with cathodic 

protection; and 

Æ Upgrades of deferred UST systems 

EPA is proposing to regulate, including 

wastewater treatment tank systems, 

airport hydrant systems, UST systems 

with field-constructed tanks, and UST 

systems that store fuel solely for use by 

emergency power generators. See 

section C for additional information on 

deferred UST systems. 

• Require UST systems not upgraded 

with corrosion protection, spill, or 

overfill prevention be permanently 

closed according to subpart G, unless 

the implementing agency determines an 

upgrade is appropriate or the UST 

system was deferred in the 1988 UST 

regulation. 

Revise release detection requirements 

in the 1988 UST regulation. 

• Section 280.40 

Æ Remove phase-in schedule for 

release detection probabilities; 

Æ Remove phase-in schedule for 

release detection monitoring; 

Æ Remove references to upgrade 

deadlines; 

Æ Remove references to existing 

USTs; and 

Æ Address deferred UST systems EPA 

is proposing to regulate, add language 

about implementing release detection 

monitoring for these systems in 

§ 280.40(c). 

• Section 280.41 

Æ Remove inventory control and 

annual tightness testing as a regulatory 

option; 

Æ Remove reference to upgrade 

deadlines; and 

Æ Make the inventory control and five 

year tightness testing language historical 

by putting language in this section in 

the past tense. 

• Section 280.42 

Æ Remove 1998 references and 

upgrade language for existing hazardous 

substance UST systems. 

EPA is proposing to remove the 

phase-in schedule in § 280.91 of subpart 

H to acknowledge that financial 

responsibility implementation deadlines 

are passed and remove references to 

§ 280.91 and the deadlines in § 280.90. 

In addition, EPA is proposing to revise 

§ 280.91 to reference the phase-in 

schedule for deferred UST systems EPA 

is proposing to regulate at § 280.10. 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing these changes to 

acknowledge that the 1998 deadline for 

upgrading UST systems with release 

prevention and the 1990s release 

detection and financial responsibility 

deadlines passed more than a decade 

ago. Owners and operators had more 

than two decades to upgrade their UST 

systems and meet the 1988 UST 

regulation. In addition, all UST facilities 

have been inspected at least once and 

are required to meet release detection, 

release prevention, and financial 

responsibility requirements. EPA is 

proposing owners and operators of 

upgraded UST systems continue 

conducting cathodic protection and 

internal lining testing consistent with 

how they previously performed these 

tests. 

For release detection, EPA is 

proposing to eliminate the phase-in for 

both release detection probabilities and 

release detection monitoring. EPA is 

proposing to eliminate these two phasein parts because the deadlines for 

implementing these requirements have 

passed. Owners and operators have been 

implementing these requirements for 

more than two decades. The last phasein period applied to systems installed 

between 1980 and 1988, giving owners 

and operators until 1993 to meet the 

subpart D requirements. Any new UST 

installed after 1993 had to meet release 

detection requirements when installed. 

To meet the release detection 

requirement, § 280.41 allows owners 

and operators of USTs less than 10 years 

old to use a combination of monthly 

inventory control with tank tightness 

testing every five years, until the UST 

has been installed for 10 years. When 

the UST is 10 years old, owners and 

operators must use another release 

detection method listed in subpart D. 

For new and replaced UST systems 

installed after the effective date of the 

final UST regulation, interstitial 

monitoring will be required. The new 

interstitial monitoring requirement will 

make inventory control and tank 

tightness testing obsolete as a release 

detection method 10 years after the UST 

regulation is finalized. 

For hazardous substance UST systems 

release detection, EPA is proposing to 

remove 1998 deadline and upgrade 

references. The 1988 UST regulation in 

§ 280.41 required existing UST systems 

meet the requirements for petroleum 

UST systems until 1998. After 1998, all 

new and existing hazardous substance 

UST systems must meet requirements 

for new hazardous substance UST 

systems. Since the 1998 deadline has 

passed, these changes will clarify the 

hazardous substance UST system 

requirements. 

For financial responsibility, EPA is 

proposing to remove the phase-in dates 

in § 280.91. These phase-in dates passed 

more than a decade ago and are no 

longer needed. In addition, § 280.90(b) 

and (e) contain references to § 280.91 

and compliance dates that need to be 

removed. 

UST systems with field constructed 

tanks, airport hydrant systems, and 

wastewater treatment tank systems may 

be upgraded according to § 280.21. 

However, EPA is proposing to no longer 

allow UST systems regulated under the 

1988 UST regulation to be upgraded if 

they have never met the upgrade 

requirements. Unless the implementing 

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agency determines that an UST system 

is acceptable to upgrade, non-upgraded 

UST systems must be permanently 

closed according to the closure 

requirements in subpart G. UST systems 

that have not been upgraded are older 

and have been in the ground for more 

than two decades. In addition, metal 

USTs and piping without corrosion 

protection pose a significant risk to 

human health and the environment 

because the metal in contact with soil 

corrodes. EPA is proposing that 

implementing agencies make case-bycase determinations on when to allow 

upgrades. EPA does not expect 

implementing agencies to allow 

continued use of USTs or piping not 

upgraded with corrosion protection. 

However, some implementing agencies 

may decide to allow owners and 

operators of UST systems with corrosion 

protection, but without spill or overfill 

prevention, to add spill or overfill 

prevention instead of requiring 

permanent closure. 

The proposed requirements in 

§ 280.21 will allow UST systems EPA is 

proposing to no longer defer to be 

upgraded. See section C for additional 

information on upgrading these UST 

systems. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Does removing the deadlines and 

making upgrades historical cause any 

unintended regulatory consequences? 

• Should EPA consider not allowing 

the implementing agency the flexibility 

of making a determination to allow an 

upgrade? 

Please provide reasoning or 

justification if you disagree with or 

propose something different from EPA’s 

proposal. 

4. Editorial and Technical Corrections 

What is EPA proposing? 

EPA is proposing these editorial 

corrections to the 1988 UST regulation: 

• Where ‘‘industry codes’’ and ‘‘codes 

and standards’’ are used, replace with 

‘‘codes of practice’’ 

• Revise to appropriately use the 

terms: part, subpart, section, and 

paragraph 

• Section 280.10(c)(3)—change ‘‘10 

CFR part 50 Appendix A’’ to ‘‘10 CFR 

part 50’’ 

• Section 280.20(a)(2), paragraph (C) 

in the note—change ‘‘G03.1’’ to ‘‘603.1’’ 

• Section 280.21(b)(2)(iii)—change 

‘‘by conducting two (2) tightness tests 

that meet the requirements of 

§ 280.43(c). The first tightness test must 

be conducted prior to installing the 

cathodic protection system. The second 

tightness test must be conducted 

between three (3) and six (6) months 

following the first operation of the 

cathodic protection system; or’’ to ‘‘by 

conducting two tightness tests that meet 

the requirements of § 280.43(c). The first 

tightness test must be conducted prior 

to installing the cathodic protection 

system. The second tightness test must 

be conducted between three and six 

months following the first operation of 

the cathodic protection system; or’’ 

• Section 280.20(c)(1)(ii)(C)—change 

‘‘operator’’ to ‘‘transfer operator’’ 

• Section 280.22(a)—change ‘‘Any 

owner who brings an underground 

storage tank system into use after May 

8, 1986, must within 30 days of bringing 

such tank into use, submit, in the form 

prescribed in Appendix I of this part, a 

notice of existence of such tank system 

to the state or local agency or 

department designated in Appendix II 

of this part to receive such notice.’’ to 

‘‘After May 8, 1986, an owner must 

submit notice of a tank system’s 

existence to the implementing agency 

within 30 days of bringing the 

underground storage tank system into 

use. Owners must use the form in 

Appendix I of this part.’’ 

• Section 280.22(g)—change ‘‘The 

form provided in Appendix III of this 

part may be used to comply with this 

requirement.’’ to ‘‘The statement 

provided in Appendix III of this part, 

when used on shipping tickets and 

invoices, may be used to comply with 

this requirement.’’ 

• Section 280.31—change ‘‘for as long 

as the UST system is used to store 

regulated substances’’ to ‘‘until the UST 

system is permanently closed or 

undergoes a change-in-service pursuant 

to § 280.71.’’ 

• Section 280.31—change ‘‘steel’’ to 

‘‘metal’’ 

• Section 280.33(c)—change 

‘‘fiberglass pipes’’ to ‘‘non-corrodible 

pipes’’ 

• Section 280.33(g)—change ‘‘for the 

remaining operating life of the UST 

system’’ to ‘‘until the UST system is 

permanently closed or undergoes a 

change-in-service pursuant to § 280.71.’’ 

• Section 280.34—change ‘‘Resource 

Conservation and Recovery Act’’ to 

‘‘Solid Waste Disposal Act’’ 

• Section 280.34(b)(2)—change cite 

from ‘‘280.31’’ to ‘‘280.31(d)’’ 

• Section 280.40(a)(3)—change 

‘‘probability of detection (Pd) of 0.95 

and probability of false alarm (Pfa) of 

0.05.’’ to ‘‘probability of detection of 

0.95 and probability of false alarm of 

0.05.’’ 

• Section 280.41(b)(2)—change 

‘‘conduct’’ to ‘‘conducted’’ 

• Section 280.42(a)(1)(ii)—change 

‘‘released from the tank system’’ to 

‘‘leaked from the primary containment’’ 

• Section 280.42(d)—delete 

‘‘jacketing of’’ from ‘‘* * * jacketing of 

double-walled pipe)* * *’’ 

• Section 280.43(b)(4)—change 

‘‘leak’’ to ‘‘release’’ 

• Section 280.43(b)(5)—delete 

‘‘manual’’ from ‘‘manual inventory 

control’’ 

• Section 280.52(a)(1)—change 

‘‘repair, replace, or upgrade the UST 

system’’ to ‘‘repair, replace, upgrade, or 

close the UST system’’ 

• Section 280.52(a)(1)—change 

‘‘leak’’ to ‘‘release’’ 

• Section 280.52(a)(2)—change 

‘‘leak’’ to ‘‘release’’ 

• Section 280.52(a)(3)—change 

‘‘leak’’ to ‘‘release’’ 

• Section 280.92—definition for 

provider of financial assurance—change 

‘‘§§ 280.95–280.103’’ to ‘‘§§ 280.95– 

280.107’’ 

• Section 280.92, § 280.95(b)(1)(iii), 

§ 280.95(c)(5), and § 280.95(d)—change 

‘‘Rural Electrification Administration’’ 

to ‘‘Rural Utilities Service’’ 

• Section 280.94(a)(1)—change 

‘‘§§ 280.95–280.103’’ to ‘‘§§ 280.95– 

280.107’’ 

• Section 280.95(b)(1)(ii)—change 

‘‘165.145’’ to ‘‘§ 265.145’’ 

• Section 280.95(c)(5)(i)—change 

‘‘form’’ to ‘‘from’’ 

• Section 280.95(d)—change ‘‘[insert: 

‘‘suddent accidential releases’’ and/or 

‘‘nonsudden accidential releases]’’ to 

‘‘[insert: ‘‘sudden accidental releases’’ or 

‘‘nonsudden accidental releases’’ or 

‘‘accidental releases’’]’’ 

• Section 280.95(d)—change 

‘‘Liabilitly’’ to ‘‘Liability’’ under Letter 

From Chief Financial Officer 

• Section 280.95(d)—change ‘‘lastest’’ 

to ‘‘latest’’ under Letter From Chief 

Financial Officer, Alternative I, Number 

11 

• Section 280.95(d)—remove ‘‘$’’ 

symbol for Number 8 under Alternative 

II of the Letter From Chief Financial 

Officer 

• Section 280.95(d)—add ‘‘$’’ symbol 

for Numbers 13 and 14 under 

Alternative II of the Letter From Chief 

Financial Officer 

• Section 280.96(b)—change 

‘‘§ 280.110(c)’’ to ‘‘§ 280.114(e)’’ 

• Section 280.96(c), Guarantee 

(Recital 3)—change three ‘‘40 CFR 

280.108’’ citations to ‘‘40 CFR 

§ 280.112’’ 

• Section 280.96(c), Guarantee 

(Recital 3)—change ‘‘accidential’’ to 

‘‘accidental’’ 

• Section 280.96(d)—change 

‘‘280.108’’ to ‘‘§ 280.112’’ 

• Section 280.97(a)—change 

‘‘§ 290.93’’ to ‘‘§ 280.93’’ 

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• Section 280.98(b)—change 

‘‘Resource Conservation and Recovery 

Act (RCRA)’’ to Solid Waste Disposal 

Act’’ 

• Section 280.98(b), Performance 

Bond, paragraph 4,—change ‘‘[* * * 

either ‘‘sudden’’ or ‘‘nonsudden’’ or 

‘‘sudden and nonsudden’’] accidental 

releases arising from’’ to ‘‘either 

‘‘sudden accidental releases’’ or 

‘‘nonsudden accidental releases’’ or 

‘‘accidental releases’’] arising from 

* * *’’ 

• Section 280.98(b)—change two ‘‘40 

CFR 280.108’’ citations to ‘‘40 CFR 

280.112’’ 

• Section 280.98(b)—add end 

brackets to ‘‘State of Incorporation’’ and 

‘‘Liability Limit’’ 

• Section 280.98(d)—change ‘‘40 CFR 

280.108’’ citation to ‘‘40 CFR 280.112’’ 

• Section 280.99(b)—change 

‘‘Resource Conservation and Recovery 

Act of 1976’’ to Solid Waste Disposal 

Act’’ 

• Section 280.99(b)—change 

‘‘persuant’’ to ‘‘pursuant’’ 

• Section 280.99(b)—change ‘‘curent’’ 

to ‘‘current’’ 

• Section 280.99(c)—change ‘‘40 CFR 

280.108’’ citation to ‘‘40 CFR 280.112’’ 

• Section 280.101(d)—change 

‘‘280.107(b)(5)’’ to ‘‘§ 280.111(b)(8)’’ 

• Section 280.103(b)(1), Trust 

Agreement, paragraph 2—change 

‘‘standpoint’’ to ‘‘[insert ‘‘standby’’ 

where trust agreement is standby trust 

agreement]’’ 

• Section 280.103(b)(1), Trust 

Agreement, section 4—add opening 

quotation mark for ‘‘Third-Party 

Liability Claims’’ 

• Section 280.103(b)(1), Trust 

Agreement, section 4—add opening 

quotation mark for ‘‘compensating third 

parties for bodily injury and property 

damage caused by’’ 

• Section 280.104(b)—change 

‘‘Moody’s rating of Aaa, A, A’’ to 

‘‘Moody’s rating of Aaa, Aa, A’’ 

• Section 280.104(b)—change 

‘‘refunded issues and’’ to ‘‘refunded 

issues, and’’ 

• Section 280.104(e), Letter From 

Chief Financial Officer—change 

‘‘[insert: ‘‘sudden accidental releases’’ 

and/or ‘‘nonsudden accidental 

releases’’]’’ to ‘‘[insert: ‘‘sudden 

accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental 

releases’’]’’. Note that this change occurs 

in two places in the letter. 

• Section 280.104(e), Letter From 

Chief Financial Officer, last paragraph— 

change ‘‘not backed by third-party credit 

enhancement or are insured by a 

municipal bond insurance company.’’ to 

‘‘not backed by third-party credit 

enhancement or insured by a municipal 

bond insurance company.’’ 

• Section 280.105(c)—change 

‘‘[insert: ‘‘sudden accidental releases’’ 

and/or ‘‘nonsudden accidental 

releases’’]’’ to ‘‘[insert: ‘‘sudden 

accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental 

releases’’]’’ 

• Section 280.105(c)—change 10(a) 

and 11(a) under Worksheet for 

Municipal Financial Test, Part II from 

‘‘Debt Service (from 4d)’’ to ‘‘Debt 

Service (from 4c)’’ 

• Section 280.106(a)(1)—change 

‘‘§ 280.104(c)’’ to ‘‘§ 280.104(d) and 

§ 280.104(e)’’ 

• Section 280.106(b)—change 

‘‘§ 280.114(c)’’ to ‘‘§ 280.114(e)’’ 

• Section 280.106(d), under Local 

Government Guarantee With Standby 

Trust Made by a State, recital 7d— 

change ‘‘loaded’’ to ‘‘loaned’’ 

• Section 280.106(e), under Local 

Government Guarantee Without 

Standby Trust Made by a State, recital 

7d—change ‘‘loaded’’ to ‘‘loaned’’ 

• Section 280.106(e), under Local 

Government Guarantee Without 

Standby Trust Made by a Local 

Government, recital 8d—change 

‘‘loaded’’ to ‘‘loaned’’ 

• Section 280.107(d)—change 

‘‘[insert: ‘‘sudden accidental releases’’ 

and/or ‘‘nonsudden accidental 

releases’’]’’ to ‘‘[insert: ‘‘sudden 

accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental 

releases’’]’’ 

• Section 280.107(d), third paragraph 

under Letter From Chief Financial 

Officer—change ‘‘ten’’ to ‘‘five’’ 

• Section 280.109(b)(3)—change 

‘‘§ 280.107(b)’’ to ‘‘§ 280.111(b)’’ 

• Section 280.111(b)(9)(ii)—change 

‘‘§ 280.107(a)(3)’’ to ‘‘§ 280.107(c)’’ 

• Section 280.111(b)(9)(iii)—change 

‘‘§ 280.107(a)(3)’’ to ‘‘§ 280.107(c)’’ 

• Section 280.111(b)(9)(iii)—change 

‘‘§ 280.107(a)(3)(i)’’ to ‘‘§ 280.107(c)(1)’’ 

• Section 280.111(b)(9)(iii)—change 

‘‘§ 280.107(a)(3)(ii)’’ to ‘‘§ 280.107(c)(2)’’ 

• Section 280.113—change 

‘‘properly’’ to ‘‘permanently’’ 

EPA is proposing these technical 

corrections to the 1988 UST regulation: 

• Section 280.12—revise exclusion 

(d) of the definition of UST to 

incorporate a revision in section 9001 of 

the SWDA as shown below 

‘‘(d) Pipeline facility (including 

gathering lines): 

(1) Which is regulated under chapter 

601 of Title 49, or 

(2) Which is an intrastate pipeline 

facility regulated under state laws as 

provided in chapter 601 of Title 49, 

and which is determined by the 

Secretary of Transportation to be 

connected to a pipeline or to be 

operated or intended to be capable of 

operating at pipeline pressure or as an 

integral part of a pipeline;’’ 

• Section 280.43(b)(1)—replace ‘‘a 

period of at least 36 hours’’ with ‘‘the 

minimum duration of test in the table 

below’’; this updates current UST 

capacity allowances when using manual 

tank gauging as a method of release 

detection 

Æ Section 280.43(b)(4)—replace 

existing table with the one below; this 

ensures information in the table is 

consistent with the change in 

§ 280.43(b)(1) 

Nominal tank capacity 

Minimum 

duration of 

test 

Weekly standard (one test) 

Monthly standard 

(four test 

average) 

550 gallons or less ................................................................. 36 hours ................................ 10 gallons .............................. 5 gallons. 

551–1,000 gallons (when tank diameter is 64’’) .................... 44 hours ................................ 9 gallons ................................ 4 gallons. 

551–1,000 gallons (when tank diameter is 48’’) .................... 58 hours ................................ 12 gallons .............................. 6 gallons. 

551–1,000 gallons (also requires periodic tank tightness 

testing).

36 hours ................................ 13 gallons .............................. 7 gallons. 

1,001–2,000 gallons (also requires periodic tank tightness 

testing).

36 hours ................................ 26 gallons .............................. 13 gallons. 

Æ Section 280.41(a)(2)—modify tank 

sizes in text so it is consistent with the 

table above. ‘‘Tanks with capacity of 550 

gallons or less and tanks with a capacity 

of 551 to 1000 gallons that meet the tank 

diameter criteria in § 280.43(b) may use 

manual tank gauging (conducted in 

accordance with § 280.43(b))’’; and 

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Æ Section 280.43(b)(5)—modify tank 

sizes in text so it is consistent with the 

table above. ‘‘Tanks of 550 gallons or 

less nominal capacity and tanks with a 

nominal capacity of 551 to 1000 gallons 

that meet the tank diameter criteria in 

the table in (b)(4) may use this as the 

sole method of release detection. All 

other tanks with a nominal capacity of 

551 to 2,000 gallons may use the 

method in place of manual inventory 

control in § 280.43(a). Tanks of greater 

than 2,000 gallons nominal capacity 

may not use this method to meet the 

requirements of this subpart.’’ 

• Section 280.43—remove the 

requirement for inventory control in the 

automatic tank gauging release detection 

method 

• Section 280.92—change the 

definition of accidental release from 

‘‘release of petroleum from an 

underground storage tank’’ to ‘‘release of 

petroleum arising from operating an 

underground storage tank’’ 

• Section 280.104(h)—add this 

subsection: ‘‘(h) If the local government 

owner or operator fails to obtain 

alternate assurance within 150 days of 

finding that it no longer meets the 

requirements of the bond rating test or 

within 30 days of notification by the 

Director of the implementing agency 

that it no longer meets the requirements 

of the bond rating test, the owner or 

operator must notify the Director of 

such failure within 10 days.’’ 

• Revise Appendix III to read: ‘‘Note. 

A federal law (the Solid Waste Disposal 

Act, as amended, requires owners of 

certain underground storage tanks to 

notify implementing agencies of the 

existence of their tanks. Notifications 

must be made within 30 days of 

bringing the tank into use. Consult 

EPA’s regulations at 40 CFR 280.22 to 

determine if you are affected by this 

law.’’ 

Why is EPA proposing this change? 

What background information is 

available about this change? 

EPA is proposing to make editorial 

and technical corrections to the 1988 

UST regulation. Proposed editorial 

corrections include: correcting 

misspellings; capitalizing words; 

removing unused acronyms; using 

conventional number formatting; and 

appropriately referring to parts, 

subparts, sections, and paragraphs. In 

addition, EPA is proposing technical 

corrections which include updating the 

regulation to incorporate statutory 

changes that occurred since the 1988 

regulation was promulgated and 

clarifying long-standing Agency 

policies. 

The editorial change to § 280.10(c)(3) 

makes the citation to Nuclear Regulatory 

Commission regulation more general, in 

the event requirements for emergency 

generator UST systems at nuclear power 

facilities are moved from Appendix A to 

some other part of the Nuclear 

Regulatory Commission regulation. 

The editorial change to § 280.22(a) 

makes the language easier to understand 

and consistent with the proposed new 

paragraphs of § 280.22(b) and 

§ 280.22(h). 

The editorial change to 

§ 280.20(c)(1)(ii)(C) clarifies that the 

transfer operator needs to be alerted. 

This change makes the language 

consistent with § 280.20(c)(1)(ii)(B). The 

editorial change to § 280.22(g) clarifies 

the content of and how to use Appendix 

III of the 1988 UST regulation to meet 

the notification requirement. 

The editorial changes to § 280.31 will 

eliminate any potential confusion with 

the temporary closure requirement and 

ensure all metal components comply 

with this section. Temporary closure 

requires owners and operators operate 

and maintain corrosion protection even 

when the UST system is emptied. The 

operation and maintenance of corrosion 

section indicates that releases due to 

corrosion must be prevented as long as 

the UST system is used to store 

regulated substances. While EPA has 

interpreted that the UST system is used 

to store regulated substances even if it 

is empty during temporary closure, this 

proposed change will clarify this 

position. In addition, UST systems have 

metal components, other than steel, 

protected from corrosion. Changing the 

word steel to metal at the beginning of 

this section will make it clear that the 

operation and maintenance 

requirements for corrosion protection 

apply to all metal components. 

The editorial change to § 280.33(g) 

will clarify when the operating life of an 

UST system ends. EPA does not define 

an operating life; rather, we describe 

permanent closure and change-inservice. With this change, EPA is 

proposing the operating life of an UST 

system ends when an owner or operator 

permanently closes the UST system or 

the UST system undergoes a change-inservice from regulated to unregulated. 

EPA is proposing a technical 

correction to revise the definition of 

UST as it relates to pipeline facilities. 

This revision directly incorporates a 

change made to Section 9001 of the 

Solid Waste Disposal Act after the 1988 

UST regulation was promulgated. 

EPA is proposing a technical 

correction to clarify that hazardous 

substance USTs must be able to contain 

regulated substances released from the 

UST system until the substances are 

detected and removed. Based on the 

1988 UST regulation definition of 

release, the statement implies that a 

regulated substance has reached the 

environment. Because a regulated 

substance should be contained in the 

UST system’s secondary containment, 

EPA is proposing to change the term 

released to leaked, indicating a leak 

occurred from the primary containment 

but did not reach the environment. 

Therefore, secondary containment 

would then contain the leak. The 

editorial change to § 280.42(d) removes 

confusion about whether piping that is 

already double-walled also needs to be 

jacketed. 

EPA is proposing technical 

corrections to § 280.43(d) which will 

codify long-standing Agency policies for 

using manual tank gauging and 

automatic tank gauging. These changes 

update UST capacity allowances when 

using manual tank gauging and remove 

the requirement for USTs using 

automatic tank gauging to conduct 

additional inventory control. Since 1990 

and 1989, EPA allowed these deviations 

from the 1988 UST regulation through 

policy for manual tank gauging and 

automatic tank gauging, respectively. 

EPA also stated these allowances in our 

publications: Manual Tank Gauging For 

Small Underground Storage Tanks; 

Musts For USTs: A Summary of Federal 

Regulations For Underground Storage 

Tank Systems; and Straight Talk On 

Tanks: Leak Detection Methods For 

Petroleum Underground Storage Tanks 

And Piping. With regard to manual tank 

gauging, note the expanded coverage of 

larger tanks is limited in some respects 

by the diameter of the tank as noted in 

the revised table. 

EPA is proposing to add closure as an 

option at § 280.52(a)(1) to provide 

owners and operators additional 

flexibility when suspected and 

confirmed releases occur. 

EPA is proposing an editorial 

correction of ‘‘leak’’ to ‘‘release’’ in 

§ 280.43(b)(4) and § 280.52(a)(1), (2), 

and (3) because release is defined as 

regulated substance reaching the 

environment in the 1988 UST 

regulation. 

EPA is updating references of ‘‘Rural 

Electrification Administration’’ (REA) to 

‘‘Rural Utilities Services’’ (RUS). Under 

the Federal Crop Insurance Reform and 

Department of Agriculture 

Reorganization Act of 1994, REA 

reorganized to RUS. 

EPA is proposing to amend the 

definition of ‘‘accidental release’’ under 

§ 280.92 so it matches the definition 

stated in the original preamble for the 

financial responsibility requirements 

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(53 FR 43334). EPA intended the 

definition in the preamble to be 

included in the 1988 UST regulation, 

but two important words were 

inadvertently omitted. By changing this, 

EPA is clarifying that owners and 

operators are required to have financial 

responsibility for releases arising from 

operating USTs (including releases due 

to filling USTs and releases occurring at 

dispensers). 

The editorial change to § 280.103(b)(1) 

will correct a typographical error [i.e., 

‘‘standpoint’’] and clarify the trust fund 

language. 

The editorial change to the last 

paragraph of the Letter to the Chief 

Financial Officer under § 280.104(e) 

clarifies that no credit enhancement of 

any type is permitted for revenue bonds, 

consistent with the preamble to the 

1988 UST regulation (58 FR 9033). 

The editorial addition of § 280.104(h) 

will make requirements for the local 

government bond rating test under 

§ 280.104 consistent with requirements 

of the financial test under § 280.95(g). 

EPA included this requirement for 

private owners and operators in the 

1988 UST regulation but inadvertently 

omitted it for local government owners 

and operators. 

The editorial change to the third 

paragraph of the Letter From Chief 

Financial Officer under § 280.107(d) 

will make the wording of the letter 

consistent with the amount of coverage 

required in § 280.107(b). 

EPA defines and discusses permanent 

closure, not proper closure, in the 1988 

UST regulation. This clarified that in 

§ 280.113, financial responsibility is 

required during temporary closure. 

The update to Appendix III removes 

old dates and clarifies the language in 

the statement for shipping tickets and 

invoices. 

What issues related to this change does 

EPA request comment or additional 

data on? 

• Are there other editorial corrections 

(such as typographical errors or 

inaccurate references) EPA should 

make? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

F. Alternative Options EPA Considered 

What options did EPA consider? 

In developing today’s proposed 

regulatory changes (hereafter the 

Preferred Option), EPA considered and 

evaluated variations of a subset of the 

proposed regulatory requirements using 

two alternative options (hereafter 

Option 1 and Option 2). The table below 

highlights differences between our 

Preferred Option and Options 1 and 2. 

Some of the proposed regulatory 

requirements do not vary across the 

options (for example, notification of 

ownership changes is required in all 

three). As a result, proposed regulatory 

changes discussed earlier in the 

preamble, but not listed here, mean 

those changes are in effect in all three 

options. Overall, Options 1 and 2 

consist of regulatory changes that are 

more and less stringent, respectively, 

than proposed changes in the Preferred 

Option. After reviewing comments, EPA 

may use one or more of these options in 

whole or in part to establish the final 

UST regulation. 

COMPARISON OF PREFERRED OPTION AND OPTIONS 1 AND 2 

Proposed requirement 

Options 

Preferred 1 2 

Walkthrough inspections ........................................................... Monthly ................................... Monthly ................................... Quarterly. 

Overfill prevention equipment tests ........................................... 3 year ...................................... 1 year ...................................... 3 year. 

Spill prevention equipment tests ............................................... 1 year ...................................... Require replacement every 3 

years (no testing).

1 year. 

Secondary containment tests .................................................... 3 year ...................................... 1 year ...................................... Not required. 

Elimination of flow restrictors in vent lines for all new tanks 

and when overfill devices are replaced.

Required ................................. Required ................................. No change. 

Operability tests for release detection methods ........................ 1 year ...................................... 1 year ...................................... 3 year. 

Change leak rate probabilities from 95/5 to 99/1 (Pd/Pfa) ....... Not required ............................ Required ................................. Not required. 

Eliminate groundwater and vapor monitoring as release detection methods.5-year phase-out ..................... Immediately ............................. No change. 

Remove deferrals for airport hydrant fuel distribution systems 

and UST systems with field-constructed tanks.

Regulate under alternative release detection requirements.Require them to meet same 

release detection requirements as conventional 

USTs.

Maintain deferrals. 

Below we explain Options 1 and 2, as 

well as our rationale for each. (Note that 

EPA conducted a regulatory impact 

analysis (RIA) for all three options. The 

results are discussed in the RIA 

document titled Assessment Of The 

Potential Costs, Benefits, And Other 

Impacts Of The Proposed Revisions To 

EPA’s Underground Storage Tank 

Regulations which is available in the 

docket for this proposed regulation.) 

What is EPA’s rationale for Option 1? 

In Option 1, EPA considered requiring 

annual tests of overfill prevention 

equipment and interstitial areas. EPA 

assessed the costs of conducting annual 

tests for these components and decided 

instead to propose overfill prevention 

equipment testing and interstitial 

integrity testing every three years. This 

will reduce the overall compliance cost 

burden on owners and operators 

without significantly compromising 

benefits of these tests. When compared 

to other components such as spill 

prevention equipment, both interstitial 

areas and overfill prevention equipment 

are less likely to fail or be damaged. 

Overfill prevention equipment is in the 

tank; interstitial areas for tanks and 

piping are typically buried several feet 

underground. Spill prevention 

equipment encounters frequent human 

and climate interaction, making it prone 

to frequent damage and failure. 

Secondary containment reduces the 

likelihood that a release into the 

environment will occur because a leak 

is contained if a breach of the inner wall 

occurs. As a result, less frequent 

periodic tests of overfill prevention 

equipment and interstitial areas would 

adequately ensure the integrity and 

functionality of equipment. In addition, 

a three year test requirement for these 

two components will match the 

inspection cycle, allowing inspectors to 

ensure tests are completed. Therefore, 

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testing overfill prevention equipment 

and interstitial areas every three years is 

sufficient. 

In Option 1, EPA considered 

mandatory replacement of spill 

prevention equipment every three years, 

regardless of the spill prevention 

equipment’s condition. As discussed 

earlier in the preamble, various sources 

indicated spill prevention equipment is 

a major source of confirmed releases 

and typically has a short lifespan. After 

EPA evaluated the cost of requiring spill 

prevention equipment replacement 

every three years, we determined the 

cost burden of this requirement on 

owners and operators would be 

significant. While developing today’s 

proposal, EPA made a conscious effort 

to limit removing or replacing existing 

UST system equipment (for example, 

eliminating the use of ball floats as a 

form of overfill prevention in new tanks 

instead of requiring removal in existing 

tanks) to minimize impacts on owners 

and operators, both in terms of reducing 

compliance costs and interrupting daily 

operations. As a result, EPA instead is 

proposing annual tests of spill 

prevention equipment. This balances 

the benefits of properly functioning spill 

prevention equipment with the 

potential costs imposed on owners and 

operators. 

When considering changes to existing 

release detection requirements, EPA 

evaluated the possibility of modifying 

the leak probability of detection (Pd) 

from 95 percent to 99 percent and the 

leak probability of false alarm (Pfa) from 

5 percent to 1 percent. EPA initially 

believed increasing the Pd rate for 

release detection equipment 

performance would be a relatively low 

cost action that would significantly 

increase identifying potential releases to 

the environment. EPA also believed that 

decreasing the Pfa rate would be a 

relatively low cost means of reducing 

the number of nuisance alarms owners 

and operators experience. Because they 

would have a higher confidence that 

alarms identify real problems, owners 

and operators would be more likely to 

respond. Even though most equipment 

in use today is capable of meeting more 

stringent probability rates, almost all 

release detection devices would require 

some modification to achieve these 

results. Even a relatively minor software 

upgrade could be a significant cost to 

owners and operators. In addition, 

release detection vendors would need to 

perform significant testing and 

verification to determine whether their 

equipment would meet the new Pd/Pfa 

rates. After considering the potential 

cost impacts, other proposed 

requirements, such as training owners 

and operators and requiring periodic 

walkthrough inspections, are sound 

alternatives for environmental 

protection. Therefore, EPA instead is 

proposing periodic operation and 

maintenance for existing release 

detection equipment to ensure its 

proper operation. 

EPA is proposing to eliminate 

groundwater and vapor monitoring as 

permissible methods of release 

detection. In Option 1, EPA considered 

an immediate ban of these two options 

as release detection methods because 

inspectors told us these methods are 

unsuitable and should be removed as 

soon as possible. Approximately 5 

percent of UST systems use 

groundwater or vapor monitoring for 

release detection, which means the 

affected population of users is relatively 

small. Yet EPA recognizes this would 

require retrofitting or replacing existing 

equipment. To accommodate owners 

and operators and provide them with 

sufficient lead time to meet this 

requirement, EPA today is proposing a 

five year phase out for owners and 

operators to select, install, and begin 

using another method of release 

detection. 

In evaluating release detection 

methods suitable for UST systems with 

field-constructed tanks and airport 

hydrant fuel distribution systems, EPA 

considered requiring these tanks and 

systems comply with the same release 

detection requirements conventional 

UST systems meet under 40 CFR part 

280, subpart D. After assessing costs, 

technical feasibility, and potential 

impacts to facility operations, EPA 

decided to propose a release detection 

regulatory structure specific to fieldconstructed tanks and airport hydrant 

fuel distribution piping, per § 280.46 

and § 280.47, respectively. It is 

sometimes impossible for very large 

tanks and piping volumes to achieve 

thresholds for current release detection 

methods. When a threshold is 

achievable, the time needed to reach it 

is often very long and impractical. The 

RIA indicates the total annual costs to 

meet conventional release detection 

requirements are $153 million, while 

total annual costs under the proposed 

alternative release detection 

requirements are $23 million. As a 

result, it is appropriate to propose 

release detection methods specific to 

these systems. This will effectively 

protect the environment by quickly 

detecting releases from these tanks and 

piping. 

What is EPA’s rationale for Option 2? 

In comparing costs with benefits of 

potential proposed changes, EPA 

weighed different frequencies for 

walkthrough inspections and periodic 

equipment testing. In Option 2, EPA 

assessed quarterly walkthrough 

inspections and not requiring interstitial 

integrity testing as ways to reduce 

potential cost impacts on owners and 

operators. While quarterly walkthrough 

inspections would reduce costs to 

owners and operators, EPA is taking the 

position that a period less frequent than 

monthly walkthrough inspections 

would considerably reduce benefits. 

High operator turnover, frequency of 

small leaks at dispensers and 

submersible turbine sumps, and 

frequency of deliveries all contribute to 

the need for monthly walkthrough 

inspections. With that in mind, EPA 

today is proposing monthly 

walkthrough inspections so owners and 

operators can consistently and routinely 

verify proper UST system component 

performance. This will ensure problems 

are detected before a release occurs or 

contaminates the environment. 

The 1988 UST regulation does not 

require owners and operators to ensure 

the integrity of secondarily contained 

areas, and EPA considered not requiring 

periodic interstitial integrity testing. 

Because of the Energy Policy Act 

secondary containment requirement for 

nearly all new and replaced tanks and 

piping, all UST systems will eventually 

be secondarily contained (including 

interstitial monitoring for release 

detection) and we should require 

periodic interstitial integrity testing to 

ensure leaks into secondary 

containment areas will be properly 

detected and contained. As described in 

Option 1, EPA considered annual 

interstitial integrity testing, but decided 

to propose a three year testing 

requirement, which will lower cost 

impacts of this requirement on owners 

and operators while retaining the 

environmental benefit of testing. 

To reduce total compliance costs of 

today’s proposal for owners and 

operators, EPA considered allowing 

continued use of flow restrictors in vent 

lines (that is, ball float valves) as an 

acceptable form of overfill prevention 

equipment. After considering 

stakeholders’ concerns, EPA is taking 

the position that vent line flow 

restrictors present problems for 

operability and safety reasons. As 

described previously, EPA is proposing 

to eliminate ball float valves as overfill 

prevention for all new tanks and when 

overfill prevention is replaced in 

existing tanks. 

EPA considered maintaining 

groundwater and vapor monitoring as 

acceptable forms of release detection in 

Option 2. All tanks and piping will 

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73Federal Register, Vol. 53, No. 185, September 

23, 1988, page 37216. 

eventually use secondary containment 

with interstitial monitoring as their 

release detection method, and as a 

result, groundwater and vapor 

monitoring will eventually not be used. 

Stakeholders raised concerns about 

these two release detection methods, 

more than other methods. For both 

groundwater and vapor monitoring, 

releases travel through the environment 

to sampling points before releases are 

discovered. Other release detection 

methods provide more immediate 

detection of releases. In addition, 

numerous concerns were raised about 

frequent misapplications and improper 

designs of monitoring wells for these 

two methods. Consequently, EPA today 

is proposing to phase out groundwater 

and vapor monitoring as release 

detection methods. This will address 

stakeholders’ concerns that UST 

systems using these two methods 

represent an unacceptable risk to the 

environment. 

V. Updates to State Program Approval 

Requirements 

What is EPA proposing? 

EPA is proposing these substantive 

changes to the 1988 state program 

approval (SPA) regulation (40 CFR part 

281) to make it consistent with certain 

Energy Policy Act requirements and 

certain proposed changes to the 1988 

UST technical regulation (40 CFR part 

280). 

• Section 281.30(a), § 281.33(c)(2), 

and § 281.33(d)(3)—require secondary 

containment for new or replaced tanks 

and piping and under-dispenser 

containment for new motor fuel 

dispenser systems for UST systems 

located within 1,000 feet of a potable 

drinking water well or community water 

system, unless a state requires 

manufacturer and installer financial 

responsibility according to § 9003(i)(2) 

of the Solid Waste Disposal Act. 

• Section 281.30(b)—eliminate flow 

restrictors for new or replaced overfill 

prevention. 

• Section 281.30(c)—add notification 

for ownership changes. 

• Section 281.31 and § 281.33(b) and 

(c)—delete upgrading requirements and 

eliminate phase-in schedule; add phasein schedule for previously deferred UST 

systems. 

• Section 281.32(e) and (f) and 

§ 281.33(a)(3)—add periodic testing of 

spill and overfill prevention equipment, 

secondary containment areas, and 

mechanical and electronic components; 

and operation and maintenance 

walkthrough inspections, as well as 

maintaining associated records. 

• Section 281.33(c)—limit use of 

monthly inventory control in 

combination with tank tightness testing 

conducted every five years for the first 

10 years after the tank is installed or 

upgraded, if the tank was installed prior 

to a state receiving SPA. 

• Section 281.33(e)—require 

hazardous substance USTs to only use 

secondary containment with interstitial 

monitoring. 

• Section 281.34(a)(1)—add 

‘‘interstitial space may have been 

compromised’’ to suspected releases. 

• Section 281.37—eliminate phase-in 

requirement for financial responsibility. 

• Section 281.39—require operator 

training according to § 9010 of the Solid 

Waste Disposal Act. 

• Section 281.41(a)—require states to 

have delivery prohibition in accordance 

with § 9012 of the SWDA. 

• Section 281.60—add requirement 

for the Administrator to initiate 

proceedings to withdraw program 

approval when an approved program 

fails to submit a revised application 

within three years of 40 CFR part 281 

changes that require a program revision, 

which will follow the proceedings 

procedures from the 1988 SPA 

regulation. 

EPA is not proposing to add the 

proposed compatibility requirement 

changes (see § 280.32) to 40 CFR part 

281. 

EPA is also proposing these technical 

changes to the SPA regulation. 

• Section 281.10—change ‘‘subpart’’ 

to ‘‘part’’. 

• Section 281.11(c), § 281.12(b)(2), 

§ 281.20(d), § 281.21(a)(2), § 281.23, 

§ 281.50(a), and formerly § 281.51— 

eliminate interim approval. 

• Section 281.12(a)(2)—change 

‘‘Indian lands’’ to ‘‘Indian country’’. 

• Formerly § 281.32(e)—eliminate 

requirement to maintain upgrade 

records. 

• Formerly § 281.38—eliminate 

reserved section for financial 

responsibility for USTs containing 

hazardous substances. 

• Move § 281.39 to § 281.38—Lender 

Liability. 

• Section 281.51, formerly § 281.52— 

add requirement for approved states to 

submit a revised application within 

three years of 40 CFR part 281 changes 

that require a program revision. 

• Section 281.61—move § 281.60(b) 

to § 281.61(b)(2). 

Why is EPA proposing this change? 

What background information is 

available about this change? 

The 1988 SPA regulation in 40 CFR 

part 281 sets criteria state UST programs 

must meet to receive EPA’s approval to 

operate in lieu of the federal UST 

program. The 1988 SPA regulation sets 

performance criteria states must meet to 

be considered no less stringent than the 

1988 UST regulation (hereafter 40 CFR 

part 280) and provides requirements for 

states to have adequate enforcement. It 

also details the components of a SPA 

application. 

EPA is proposing certain changes to 

the 1988 SPA regulation to make it 

consistent with today’s proposed 

changes to the 1988 UST technical 

regulation. By doing so, EPA will 

require states to adopt UST technical 

regulation changes when final, in order 

to obtain or retain SPA. EPA is 

proposing to keep the general format of 

the 1988 SPA regulation. We are not 

proposing to make the SPA regulation as 

explicit or prescriptive as the UST 

technical regulation. Finally, EPA is 

proposing technical corrections and 

adding a deadline for state program 

revisions whenever EPA makes 

substantive changes to the SPA 

regulation. 

Addressing Energy Policy Act 

Requirements and Proposed 40 CFR Part 

280 Changes 

How SPA Works 

EPA’s proposed UST technical 

regulation changes and Energy Policy 

Act requirements primarily impact the 

1988 SPA regulation in 40 CFR part 281, 

Subpart C—Criteria for No Less 

Stringent. Thirty-six states, plus the 

District of Columbia and Puerto Rico, 

have state program approval and run 

their own underground storage tank 

programs in lieu of the federal program. 

To ensure these jurisdictions, and any 

other states or territories obtaining SPA, 

adopt the 40 CFR part 280 changes 

when final, EPA must update Subpart C. 

To continue providing states with 

flexibility and not disrupt current state 

programs, EPA is proposing to revise the 

SPA regulation to make it consistent 

with, but not identical to, the 40 CFR 

part 280 changes. Instead, EPA is 

proposing changes to the SPA regulation 

in a less prescriptive manner than in the 

changes in 40 CFR part 280. EPA 

decided to continue this successful 

approach to implement the UST SPA 

program. 

The 1988 SPA regulation developed 

no less stringent criteria in the form of 

objectives.73 EPA is continuing this 

format so that, taken as a whole, state 

programs will be no less stringent than 

the federal requirements, even though 

they may deviate slightly from what is 

explicitly required in 40 CFR part 280. 

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For example, § 281.30 covers the no less 

stringent requirement for new UST 

system design, construction, and 

installation; it corresponds to § 280.20 

of the UST technical regulation, but is 

much less explicit about requirements. 

According to § 281.30 and to receive 

SPA, a state must require all new UST 

systems ‘‘* * * [b]e designed, 

constructed, and installed in a manner 

that will prevent releases for their 

operating life due to manufacturing 

defects, structural failure, or corrosion 

* * *’’. In contrast, § 280.20 is much 

more explicit about how tank owners 

and operators ensure their tanks and 

piping prevent releases. It states what is 

required to prevent releases and 

provides codes of practice to comply. 

Although § 281.30 is less explicit, it 

nonetheless ensures owners and 

operators in approved states install UST 

systems that prevent releases and 

provides states flexibility in achieving 

that goal. 

Proposed Goal Oriented Changes 

EPA is proposing these goal oriented 

changes to Subpart C—Criteria for No 

Less Stringent. By the term ‘‘goal 

oriented changes,’’ EPA means changes 

in which states have some flexibility as 

to how they will meet the goals of the 

particular SPA regulation section. They 

reflect certain 40 CFR part 280 proposed 

changes. 

• § 281.30(c)—add notification for 

ownership changes. 

• § 281.31 and § 281.33(b)—add a 

phase-in schedule for upgrading 

previously deferred UST systems. 

• § 281.32(e) and (f) and 

§ 281.33(a)(3)—add periodic testing of 

spill and overfill prevention equipment, 

secondary containment areas, and 

mechanical and electronic components; 

and operation and maintenance 

walkthrough inspections, as well as 

maintaining associated records. 

EPA’s proposed ownership change 

notification requires anyone who 

assumes ownership of an UST system to 

notify the implementing agency within 

30 days of assuming ownership and 

specifies what notification must 

include. Our proposed SPA regulation 

change in § 281.30(c) is much less 

prescriptive and indicates states require 

owners and operators to ‘‘* * * 

adequately notify the implementing 

state agency within a reasonable 

timeframe when assuming ownership of 

an UST system using a form designated 

by the state agency.’’ This provides 

states some flexibility in complying, 

including allowing them to continue 

relying on an annual tank registration 

program to meet this requirement. This 

is a reasonable way to ensure states 

know who owns USTs in their 

jurisdiction. EPA does not have an 

annual registration program, so we 

specify a timeframe in § 280.22 because 

we want to know who owns tanks in 

jurisdictions where we are the 

implementing agency. 

In § 280.21, EPA is proposing that 

previously deferred wastewater 

treatment tank systems, airport hydrant 

fuel distribution systems, and UST 

systems with field-constructed tanks 

meet specific upgrade requirements. 

This is one way of achieving the goal 

states need to meet in § 281.31. In 

§ 281.31, states will be required to 

ensure tanks are upgraded to prevent 

releases due to corrosion, spills, and 

overfills or be permanently closed. 

These more general requirements are 

sufficient for a state program to protect 

human health and the environment 

because they require UST systems to 

‘‘* * * prevent releases for their 

operating life * * *’’. EPA finds it is 

also adequate to upgrade previously 

deferred systems to this standard. 

Additionally, EPA is proposing 

previously deferred UST systems be 

upgraded within three years of a state 

submitting its SPA application for 

approval or revision. In the past, EPA 

experienced problems with requiring 

states to have a particular requirement 

by a certain date in order to receive 

SPA. States applying for SPA after a 

deadline passed often have difficulty 

implementing or obtaining a retroactive 

requirement. A retroactive or deadline 

leads to complications with little added 

benefit. 

In today’s proposal, EPA is adding 

various operation and maintenance 

requirements. In 40 CFR part 280, EPA 

is proposing specific frequencies and 

procedures for testing spill and overfill 

prevention equipment, secondary 

containment integrity testing, release 

detection equipment testing, and 

operation and maintenance walkthrough 

inspections. In § 281.32, EPA is 

proposing states require these tests in a 

manner and frequency that ensures 

proper functionality of equipment, 

includes proper operation and 

maintenance of the UST system, and 

prevents releases for the life of the 

equipment and UST system. This 

approach allows states who have these 

requirements, despite different 

frequencies or manners, to receive SPA, 

as long as their requirements 

sufficiently ensure properly functioning 

non-releasing UST systems. EPA is also 

proposing to update § 281.32(g) by 

adding these tests to the recordkeeping 

requirements of SPA. 

Proposed Energy Policy Act Changes 

In today’s SPA regulation proposal, 

EPA is addressing Energy Policy Act 

requirements more generally than in 

today’s UST technical regulation 

proposal, yet they are slightly different 

than the goal oriented approach above. 

The Energy Policy Act amends the Solid 

Waste Disposal Act and requires states 

that receive federal Subtitle I money to 

adopt operator training requirements, 

delivery prohibition, and additional 

measures to protect groundwater from 

contamination. In the additional 

measures to protect groundwater 

provision, states must meet either 

secondary containment and interstitial 

monitoring for new or replaced tanks 

and piping within 1,000 feet of a potable 

drinking water well or community water 

system, or manufacturer and installer 

financial responsibility and installer 

certification. The secondary 

containment requirement includes 

under-dispenser containment on any 

new motor fuel dispenser system within 

1,000 feet of a potable drinking water 

well or community water system. 

EPA developed guidelines for states to 

implement Energy Policy Act 

requirements; many states and 

territories implemented the Energy 

Policy Act requirements according to 

these guidelines. In order to establish 

similar requirements in Indian country 

and in states and territories that do not 

adopt Energy Policy Act requirements, 

EPA is adding secondary containment 

and operator training to today’s 40 CFR 

part 280 proposal. In proposing those 

requirements, EPA does not want to 

supersede programs states developed to 

meet Energy Policy Act requirements. 

Requiring states to alter newly 

implemented provisions would be a 

disservice to them, as well as UST 

owners and operators. Therefore, EPA is 

proposing to address in today’s SPA 

regulation proposal the secondary 

containment, manufacturer and installer 

financial responsibility and installer 

certification, delivery prohibition, and 

operator training requirements that 

appear in the Energy Policy Act. So, 

states already meeting these Energy 

Policy Act requirements need not 

change their programs to receive SPA. 

EPA is proposing additional measures 

to protect groundwater and operator 

training requirements in Subpart C 

(§ 281.22(d)(3), § 281.30(a), 

§ 281.33(c)(2), and § 281.39). Delivery 

prohibition is in Subpart D—Adequate 

Enforcement of Compliance 

(§ 281.41(a)). Because delivery 

prohibition is an enforcement tool, EPA 

is proposing to require states have 

authority to prohibit deliveries 

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according to Energy Policy Act, rather 

than make this a no less stringent 

requirement. 

EPA is not proposing to add delivery 

prohibition to 40 CFR part 280 because 

delivery prohibition is primarily an 

enforcement tool for implementing 

agencies; it is not a requirement for 

owners and operators. Because the 

Energy Policy Act gives EPA clear 

delivery prohibition enforcement 

authority, we do not need to add 

delivery prohibition to the UST 

technical regulation. However, the only 

way to ensure states have that same 

authority is to require states to have 

authority to implement delivery 

prohibition as a prerequisite for SPA, as 

proposed in § 281.41(a). 

Proposed Specific Changes 

EPA is proposing specific changes 

below to Subpart C—Criteria for No Less 

Stringent. They reflect proposed 40 CFR 

part 280 changes. This specific 

approach is the only way for states to 

adopt this group of proposed changes. 

The goal of these proposed sections 

remains intact, yet the specific changes 

ensure states adopt the 40 CFR part 280 

changes when final, and are able to 

receive SPA. 

• § 281.30(b)—eliminate flow 

restrictors for new or replaced overfill 

prevention 

• § 281.31—delete upgrading 

requirements 

• § 281.33(c)—limit use of monthly 

inventory control in combination with 

tank tightness testing conducted every 

five years for the first 10 years after the 

tank is installed or upgraded, if the tank 

was installed prior to a state receiving 

SPA 

• § 281.33(e)—require hazardous 

substance USTs to only use secondary 

containment with interstitial monitoring 

• § 281.34(a)(1)—add ‘‘* * * 

interstitial space may have been 

compromised * * *’’ to suspected 

releases 

• § 281.37—eliminate phase-in 

requirement for financial responsibility 

EPA is proposing in § 281.30(b) states 

wishing to receive SPA not allow 

installation of flow restrictors 

(commonly referred to as ball floats) in 

vent lines for overfill protection. The 

existing goal of § 281.30(b) is for states 

to require that UST systems have spill 

and overfill prevention equipment. In 

the proposed language, EPA maintains 

the overall goal to prevent spills and 

overfills; however, owners and 

operators can no longer install ball 

floats to achieve that goal. 

The deadlines for upgrades and for 

owners and operators to obtain financial 

responsibility have passed. As a result, 

EPA is proposing to eliminate these 

UST technical regulation deadlines in 

the SPA regulation. In § 281.31 and 

§ 281.33(b), EPA is removing UST 

upgrades, except for previously deferred 

USTs. In § 281.37, we are eliminating 

the financial responsibility phase-in 

schedule. Please note EPA is proposing 

states allow upgrades prior to 

submitting their approval or revision 

applications for SPA, rather than only 

until December 22, 1998. EPA is taking 

this action due to states’ previous 

problems with implementing a 

retroactive requirement when applying 

for SPA after the upgrade deadline. 

In § 281.33(c), EPA is proposing 

monthly inventory control in 

combination with tank tightness testing 

conducted every five years for the first 

10 years after a tank is installed or 

upgraded, only if a tank was installed 

prior to a state receiving SPA. This 

reflects a proposed change in 40 CFR 

part 280 and avoids another problem in 

the 1988 SPA regulation. First, EPA is 

proposing to eliminate this method. 

Second, EPA is proposing to tie the date 

for eliminating this method to a state’s 

submission of its SPA application for 

approval or revision. As discussed 

earlier, EPA is taking the position that 

it is better to tie deadlines in the SPA 

regulation to states’ submission of SPA 

applications, rather than specific dates. 

In today’s notice, EPA is proposing 

states wishing to receive SPA will no 

longer be able to allow installation of 

non-secondarily contained hazardous 

substance UST systems. This is 

consistent with EPA’s proposed change 

in § 280.42(e); an equivalent and 

specific proposed change to the SPA 

regulation is the only way to ensure 

states adopt it. For consistency with 

proposed changes in the UST technical 

regulation and to ensure states wishing 

to receive SPA adopt this change, in 

§ 281.34(a)(1), EPA is proposing to add 

‘‘* * * interstitial space may have been 

compromised * * *’’ to suspected 

releases conditions. 

Proposed UST Technical Regulation 

Changes Not Addressed in Proposed 

SPA Regulation 

EPA is not proposing to address in the 

proposed SPA regulation (§ 281.32) the 

methods for determining compatibility. 

Today’s proposed compatibility 

proposal in § 281.32 allows owners and 

operators to use any method for 

determining compatibility approved by 

an implementing agency, as long as the 

method is no less protective of human 

health and the environment. It is 

unnecessary to change the SPA 

regulation because the proposed UST 

technical regulation in § 281.32 will 

provide states with discretion to ensure 

compatibility. Also, the proposed UST 

technical regulation change delineates 

how owners and operators can 

demonstrate they are storing substances 

in UST systems made of or lined with 

materials that are compatible with the 

substances stored. This is more 

prescriptive than the general format of 

the SPA regulation, and thus is not 

appropriate for the SPA regulation. 

Addressing SPA Revision Process 

EPA is proposing to add a 

requirement for approved states to 

submit a revised application within 

three years of SPA regulation changes 

that require a program revision under 

§ 281.51. Approved states are required 

to revise their programs and submit 

revised applications whenever the 

federal program changes or EPA’s 

Administrator requests a revised 

application based on changes to a state’s 

program. Given today’s proposed 

significant changes, it is necessary to 

develop a timeframe which will ensure 

approved states meet SPA regulation 

changes in a reasonable time. 

After discussions with states and 

reviews of other EPA programs, EPA is 

taking the position that three years is a 

reasonable time for approved states to 

submit revised applications resulting 

from SPA regulation changes. Also, EPA 

will work with states to ensure they 

meet this three-year deadline. EPA’s 

proposed language in § 281.51 is 

intended only to require a state program 

revision within three years if EPA 

makes changes that necessitate state 

program changes. For instance, EPA 

changes to Subpart C—Criteria for No 

Less Stringent would likely require a 

state program revision, unless EPA is 

only making minor editorial changes. 

While most states will be able to meet 

the three-year deadline for program 

revision, EPA is aware that some states 

may need additional time. EPA will 

notify states that have not revised their 

program within three years. EPA will 

ask those states to demonstrate their 

level of effort, show progress to date, 

and provide dates when they will 

achieve major milestones for revising 

their programs and submitting a revised 

application. EPA will consider these 

factors before initiating program 

approval withdrawal. 

Additional Proposed Changes to SPA 

Regulation 

EPA is proposing these additional 

SPA regulation changes; they are not a 

direct result of proposed 40 CFR part 

280 changes. Rather, the majority are 

corrections to the 1988 SPA regulation. 

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71758 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

• § 281.10—change ‘‘subpart’’ to 

‘‘part’’ 

• § 281.11(c), § 281.12(b)(2), § 281.23, 

and formerly § 281.51—eliminate 

interim approval 

• § 281.12(a)(2)—change ‘‘Indian 

lands’’ to ‘‘Indian country’’ 

• § 281.32(e)—eliminate requirement 

to maintain upgrade records 

• Formerly § 281.38—eliminate 

reserved section for financial 

responsibility for USTs containing 

hazardous substances 

• Move § 281.39 to § 281.38—Lender 

Liability 

• § 281.61—move § 281.60(b) to 

§ 281.61(b)(2) 

The SPA regulation incorrectly uses 

the term subpart in § 281.10, and 

therefore EPA is proposing to correctly 

change this to part. EPA has been using 

the term Indian country instead of 

Indian lands for years. We are proposing 

to incorporate this term, which does not 

alter the meaning, in the SPA 

regulation. EPA is proposing to remove 

the reserved financial responsibility for 

USTs containing hazardous substances 

section (formerly § 281.38); move the 

lender liability section from § 281.39 to 

§ 281.38; and include the new operator 

training section in § 281.39. Because 

operator training needs to be in subpart 

C, which has no remaining section 

numbers, this eliminates the need to 

renumber subpart D. Also, the reserved 

financial responsibility for hazardous 

substances section is unnecessary since 

there is no corresponding requirement 

in 40 CFR part 280. 

EPA is proposing to delete the interim 

SPA approval language (in § 281.11(c) 

and § 281.51). In more than 20 years of 

the UST program, no state has sought 

interim approval; it is more beneficial to 

receive full approval all at once, rather 

than in steps. Also, because 36 states 

plus the District of Columbia and Puerto 

Rico have SPA, interim SPA approval is 

unnecessary at this time. 

EPA is proposing to eliminate the 

requirement to maintain upgrade 

records for the operational life of an 

UST facility. This requirement in 

§ 281.32(e) of the 1988 SPA regulation 

does not exist in 40 CFR part 280. In 

addition, EPA is proposing to no longer 

allow upgrades. 

EPA is also proposing to move 

§ 281.60(b) to § 281.61(b). This 

paragraph explains the procedure EPA 

will follow to withdraw approval. This 

paragraph is better suited for § 281.61, 

which explains the procedures for 

withdrawing approval, as opposed to 

§ 281.60, which explains the criteria for 

withdrawal. 

What issues related to this change does 

EPA request comment or additional 

data on? 

EPA requests comments on: 

• Is three years an appropriate 

timeframe for requiring a SPA state to 

submit a revised application? Please 

provide justification. 

• Should EPA address the proposed 

procedures for determining 

compatibility of § 280.32 into the SPA 

regulation? 

Please provide reasoning or justification 

if you disagree with or propose 

something different from EPA’s 

proposal. 

VI. Overview of Estimated Costs and 

Benefits 

EPA prepared an analysis of the 

potential incremental costs and benefits 

associated with this action. This 

analysis is contained in the regulatory 

impact analysis (RIA) document titled 

Assessment of the Potential Costs, 

Benefits, and Other Impacts of the 

Proposed Revisions to EPA’s 

Underground Storage Tank Regulations, 

which is available in the docket for this 

proposal. RIA estimated regulatory 

implementation and compliance costs, 

and benefits for three regulatory options 

as described above in section V, 

subsection F. On an annualized basis, 

the estimated regulatory compliance 

costs for the three options in today’s 

proposed action are $210 million 

(Preferred Option), $520 million (Option 

1), and $130 million (Option 2). 

Separately, this analysis assessed the 

potential benefits of the proposed 

regulation. As discussed in the RIA, a 

substantial portion of the beneficial 

impacts associated with the proposed 

regulation are avoided cleanup costs as 

a result of preventing releases and 

reducing the severity of releases. 

Today’s action is expected to have 

annual cost savings related to avoided 

costs of $300–$740 million per year 

under the Preferred Option, $310–$770 

million per year under Option 1, and 

$110–$590 million per year under 

Option 2. 

We recognize that the estimated 

number of avoided releases and releases 

reduced in severity is based on expert 

judgment. Moreover, the cost savings 

estimates reflect cost data from only a 

small number of state programs (e.g., 

such as New Hampshire). We solicit 

public input on the accuracy of the 

expected reduction in releases due to 

the proposed requirements provided by 

the experts, as well as remediation cost 

data for releases of different sizes and 

types. Please provide relevant data and 

studies on this topic. EPA solicits 

comment on the methodology and 

results from the RIA, as well as any data 

that the public feels would be useful in 

a revised analysis including specifically 

cost estimates for remediation and 

EPA’s methods for estimating prevented 

releases under the proposed rule. 

VII. Statutory and Executive Orders 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under section 3(f)(1) of Executive 

Order (EO) 12866 (58 FR 51735, October 

4, 1993), this action is an ‘‘economically 

significant regulatory action’’ because it 

is likely to have an annual effect on the 

economy of $100 million or more. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under EO 12866 and 

EO 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 1360.11. 

Today’s proposed regulation contains 

mandatory information collection 

requirements. The labor burden and 

associated costs for these requirements 

are estimated in the ICR supporting 

statement for today’s proposed action. 

The supporting statement identifies and 

estimates the burden for each of the 

changes to the regulations that include 

recordkeeping or reporting 

requirements. Proposed changes 

include: Adding secondary containment 

requirements for new and replaced 

tanks and piping; adding operator 

training requirements; adding periodic 

operation and maintenance 

requirements for UST systems; 

removing certain deferrals; adding new 

release prevention and detection 

technologies; and updating state 

program approval requirements to 

incorporate these new changes. 

Based on the same data and cost 

calculations applied in the Regulatory 

Impact Assessment (RIA) for today’s 

action, but using the burden estimations 

for ICRs, the ICR supporting statement 

estimates an average annual labor hour 

burden of 2.3 million hours and $135 

million for the proposed regulation. One 

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time capital and hourly costs are 

included in these estimates based on a 

three year annualization period. Burden 

is defined at 5 CFR 1320.3(b). The total 

universe of respondents for this ICR is 

comprised of 223,558 facilities and 56 

states and territories. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR Part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this rule, which 

includes this ICR, under Docket ID 

number EPA–HQ–UST–2011–0301. 

Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES

section at the beginning of this notice 

for where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street NW., Washington, DC 20503, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after November 18, 2011, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by December 19, 2011. The final rule 

will respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, a small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed regulation 

on small entities, EPA certifies that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. The small 

entities directly regulated by this 

proposed rule are small businesses and 

small governmental jurisdictions. We 

have determined that at most 1 percent 

of potentially affected small firms in the 

retail motor fuel sector (NAICS 447) will 

experience an impact over 1 percent of 

revenues but less than 3 percent of 

revenues. No small firms have impacts 

above 3 percent of revenues. In 

addition, we estimate that no small 

governmental jurisdictions would be 

impacted at 1 percent or 3 percent of 

revenues. This certification is based on 

the small entities analysis contained in 

the RIA for today’s proposal. 

Although this proposed regulation 

will not have a significant economic 

impact on a substantial number of small 

entities, EPA nonetheless tried to reduce 

the impact of this regulation on the 

regulated community in general, which 

is primarily comprised of small 

businesses. EPA conducted extensive 

outreach in order to determine which 

changes to make to the 1988 regulations. 

EPA worked with representatives of 

owners and operators and reached out 

specifically to small businesses. In 

addition, EPA considered the impacts of 

each potential regulatory change and 

worked to limit changes that required 

retrofits, since changes requiring 

retrofits would place a high financial 

burden on small businesses. Finally, 

EPA maintained numerous options for 

compliance in order to provide small 

entities with as much flexibility as 

possible. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

This rule contains a Federal mandate 

that may result in expenditures of $100 

million or more for the private sector in 

any one year. Accordingly, EPA 

prepared under section 202 of the 

UMRA a written statement (an appendix 

to the RIA), which is summarized 

below. 

As estimated in the RIA, on an 

annualized basis, the total estimated 

regulatory compliance costs for the 

three options in today’s proposed action 

are $210 million (Preferred Option), 

$520 million (Option 1), and $130 

million (Option 2). Of this amount, 

annualized costs to state/local 

governments total $9 million under the 

Preferred Option, $19 million under 

Option 1, and $6 million under Option 

2. These costs consist of estimated 

regulatory compliance costs for state/ 

local governments that currently own or 

operate UST systems and annualized 

costs of $120,000 for states to 

implement the proposed rule. EPA 

estimates total annualized costs to 

owners and operators of tribally owned 

UST systems are $0.7 million under the 

Preferred Option. The estimated 

annualized cost to the private sector 

range is approximately $180 million 

under the Preferred Option, $350 

million under Option 1, and $120 

million under Option 2. While the 

proposed regulation may result in 

expenditures of $100 million or more 

for the private sector, thereby triggering 

section 202 of the UMRA, this rule is 

not subject to the requirements of 

section 204 of UMRA because EPA does 

not believe state, local, and tribal 

governments will incur aggregate costs 

of over $100 million per year. 

Consistent with section 205, EPA 

identified and considered a reasonable 

number of regulatory alternatives. 

Today’s proposed regulation identifies a 

number of regulatory options, and the 

RIA estimates the annual cost across the 

three considered options may range 

between $130 million and $520 million. 

Section 205 of the UMRA requires 

federal agencies to select the least costly 

or most cost-effective regulatory 

alternative unless the Agency publishes 

with the final rule an explanation of 

why such alternative was not adopted. 

As discussed earlier in the preamble, as 

part of EPA’s deliberative process for 

today’s proposed rule, EPA considered 

and evaluated variations of a subset of 

the proposed requirements using two 

alternative options (Options 1 and 2). 

The preferred option provides the 

greatest difference between beneficial 

impact and costs of any of the options. 

The requirements proposed under the 

Preferred Option provide for greater 

protection of human health and the 

environment and better addresses 

stakeholder concerns, compared to the 

lower cost and proposed requirements 

of Option 2. 

This rule is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

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71760 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

74United States Department of Health and Human 

Services, Public Health Service, Agency for Toxic 

Substances and Disease Registry, ‘‘Toxicological 

Profile for Polycyclic Aromatic Hydrocarbons,’’ 

August 1995. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in EO 

13132. Under the proposed rule, total 

costs to all affected states and local 

governments (including direct 

compliance costs, notification costs, and 

state program costs) are approximately 

$9 million. This is not considered to be 

a substantial compliance cost under 

federalism requirements. Thus, EO 

13132 does not apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed action from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA concluded that this action will 

have tribal implications to the extent 

that tribally-owned entities with UST 

systems on Indian country would be 

affected. However, it will neither 

impose substantial direct compliance 

costs on tribal governments, nor 

preempt tribal law. Total annualized 

costs for tribally-owned UST systems in 

Indian country are estimated to be $0.7 

million. 

EPA consulted with tribal officials 

early in the process of developing this 

proposed regulation to welcome 

meaningful and timely input into its 

development. EPA began its 

consultation with Tribes on possible 

changes to the UST regulation shortly 

after the passage of the Energy Policy 

Act of 2005. The Energy Policy Act 

directed EPA to coordinate with Tribes 

to develop and implement an UST 

program strategy in Indian country to 

supplement the program’s existing 

approach. EPA and Tribes worked 

collaboratively to develop a tribal 

strategy. 

There are certain key provisions of the 

Energy Policy Act that apply to states 

receiving federal Subtitle I money, but 

do not apply in Indian country. 

Nonetheless, EPA’s goal is to establish 

in Indian country similar federal 

requirements to these Energy Policy Act 

provisions as an important step in 

achieving more consistent program 

results in release prevention. Both EPA 

and Tribes recognize the importance of 

having policies that can help ensure 

parity in program implementation 

between states and in Indian country. 

In addition to our early consultation 

with Tribes, EPA also reached out again 

to Tribes as we started the official 

rulemaking process and throughout the 

development of this proposed 

regulation. EPA sent letters to leaders of 

over 500 Tribes as well as to Tribal 

regulatory staff to invite their 

participation in the development of the 

regulation. EPA heard from both Tribal 

officials who work as regulators as well 

as representatives of owners and 

operators of UST systems in Indian 

country. The Tribal regulators raised 

concerns about ensuring parity of 

environmental protection between states 

and Indian country. 

EPA finds that today’s proposed 

changes to the UST regulation are 

needed to ensure parity between UST 

systems in states and in Indian country. 

This regulation is also needed to ensure 

equipment is not just installed but is 

working properly to protect the 

environment from potential releases. 

EPA specifically solicits additional 

comment on this proposed action from 

Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

And Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

the Agency does not believe the 

environmental health risks or safety 

risks addressed by this action present a 

disproportionate risk to children. EPA’s 

risk assessment for this proposed 

rulemaking examines potential impacts 

to groundwater and subsequent 

chemical transport, exposure and risk. 

While the risk assessment did not 

specifically measure exposure to 

children, the general exposure scenarios 

reflect four exposure pathways that have 

the most significant potential for human 

health impacts. These are: (1) Ingestion 

of chemicals in groundwater that have 

migrated from the source area to 

residential drinking water wells; (2) 

inhalation of volatile chemicals when 

showering with contaminated 

groundwater; (3) dermal contact with 

chemicals while bathing or showering 

with contaminated groundwater; and (4) 

inhalation of vapors that may migrate 

upward from contaminated groundwater 

into overlying buildings. 

Adults and children can potentially 

be exposed through all four exposure 

pathways considered. For adults, 

inhalation of vapors while showering is 

the most significant exposure pathway; 

for children, ingestion is the most 

significant pathway, because they are 

assumed to take baths and are, therefore, 

not exposed via shower vapor 

inhalation. As a result of the longer 

exposure from showering, adults are the 

more sensitive receptors for cancer 

effects compared to children, 

particularly those under five who are 

assumed to take more baths and fewer 

showers.74

While the screening level risk 

assessment is limited in that it only 

examines benzene impacts, the 

proposed rule would likely reduce other 

contaminant exposures to children in a 

similar pattern and would not create 

significant adverse impacts on 

children’s health. 

The screening level population 

analysis performed to examine EO 

12898 shows that children under 18 

years and children under five years are 

slightly less likely to be found in the 

vicinity of UST facilities. This suggests 

that the impacts of the proposed rule 

will not have a disproportionate impact 

on children’s health. Moreover, because 

all regulatory options proposed today 

would increase regulatory stringency 

and reduce the number and size of 

releases, EPA does not expect the 

proposed regulation to have any 

disproportionate adverse impact on 

children. The public is invited to submit 

comments or identify peer-reviewed 

studies and data that assess effects of 

early life exposure to petroleum 

products. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

The following summarizes EPA’s 

assessment of the energy impacts that 

the proposed rulemaking will have on 

energy supply, distribution, and use. 

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75The 2008 prices per gallon for all grades of 

retail motor gasoline and No. 2 diesel fuel (all 

concentrations of sulfur) were $3.32 and $3.15, 

respectively, as reported by the Bureau of 

Transportation Statistics in Table 3–8: Sales Price 

of Transportation Fuel to End-Users in National 

Transportation Statistics 2010 (at http:// 

www.bts.gov/publications/ 

national_transportation_statistics/pdf/entire.pdf). 

We weight these prices according to prime supplier 

sales volumes in 2009 published by the Energy 

Information Administration, which summed to 

362,798.5 thousands of gallons per day for gasoline 

and 132,489.3 thousands of gallons per day for all 

grades of diesel fuel (at http://www.eia.gov/dnav/ 

pet/pet_cons_prim_dcu_nus_a.htm). 

76Note that the affected populations identified in 

the screening analysis summarized here are simply 

defined by specific demographics surrounding UST 

locations. These affected populations are not 

necessarily equivalent to communities that others 

have specifically identified as ‘‘environmental 

justice communities.’’ 

The proposed regulation consists of 

additional regulatory requirements that 

apply to the owners and operators of 

underground storage tanks. To the 

extent that the proposed regulation 

affects the motor fuel sector, it does so 

at the retail motor fuel sales level, rather 

than the level of refineries or 

distributors, who supply the retail 

stations with motor fuel. Therefore, we 

do not expect the proposed regulation to 

have a significant adverse impact on 

energy supply or distribution. 

The additional regulatory 

requirements contained in the proposed 

regulation may increase compliance 

costs for owners and operators of retail 

motor fuel stations. If owners and 

operators of retail motor fuel stations 

affected by the proposed regulation can 

pass through their increased compliance 

costs, energy use may be affected via 

higher energy prices caused by the 

proposed regulation. However, we do 

not expect a significant change in retail 

gasoline prices to result from this 

proposed regulation for the following 

reasons: (1) Economic analyses of retail 

fuel prices have revealed that demand 

for gasoline is highly sensitive to price 

(elastic) within localized geographic 

areas. As a result, if one motor fuel 

retailer in an area passes through 

increases in compliance costs by 

increasing gasoline prices, while 

another does not, the one with higher 

prices is at a competitive disadvantage; 

and (2) retail motor fuel stations often 

have associated stores and/or services, 

such as car washes, repair operations, 

and convenience outlets, on which they 

can more successfully pass through 

increases in compliance costs. 

Furthermore, when considered in the 

context of total fuel consumption in the 

United States, the proposed rule would 

represent only a very small fraction of 

motor fuel prices even if it was fully 

passed through to consumers. 

According to the Bureau of 

Transportation Statistics, the United 

States consumed approximately 171 

billion gallons of motor fuel (including 

gasoline and diesel) in 2008 at an 

average price of $3.27.75 This implies 

that U.S. consumers spent $558 billion 

in 2008 on motor fuel. The overall cost 

of the proposed regulation is 

approximately $210 million, less than 

one-tenth of 1 percent of the amount 

spent by end users on motor fuel in 

2008. In comparison, an increase of 1 

cent in the average price of motor fuel 

in 2008 would have increased the total 

cost to consumers by approximately 

$1.7 billion. Given these circumstances, 

the proposed regulations should not 

have a measurable impact on retail 

motor fuel prices. As a result, EPA does 

not expect the proposed regulations to 

have a significant adverse impact on 

energy prices or use. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113 (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed regulation involves 

technical standards. EPA is proposing to 

use voluntary consensus standards, 

called codes of practice identified in 

section E–2 of the preamble. These 

codes of practice meet the objectives of 

today’s proposed regulation by 

establishing criteria for the design, 

construction, and maintenance of 

underground storage tanks. 

EPA welcomes comments on this 

aspect of the proposed regulation and, 

specifically, invites the public to 

identify potentially applicable voluntary 

consensus standards and to explain why 

such standards should be used in this 

regulation. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

To inform us about the socioeconomic 

characteristics of communities 

potentially affected by the proposed 

regulation, EPA conducted a screening 

analysis to examine whether there is a 

statistically significant disparity 

between socioeconomic characteristics 

of populations located near UST 

facilities and those that are not.76 As 

discussed in the RIA, the results 

indicate that minority and low-income 

populations are slightly more likely to 

be located near UST facilities. An 

environmental justice analysis would 

then require an assessment of whether 

there would be disproportionate and 

adverse impacts on these populations. 

However, because all regulatory options 

considered in this proposed regulation 

would increase regulatory stringency 

and reduce the number and size of 

releases, EPA does not anticipate the 

proposed regulation to have any 

disproportionately high and adverse 

human health or environmental effects 

on these minority or low-income 

communities or any community. 

List of Subjects 

40 CFR Part 280 

Environmental protection, 

Administrative practice and procedures, 

Confidential business information, 

Groundwater, Hazardous materials, 

Petroleum, Reporting and recordkeeping 

requirements, Underground storage 

tanks, Water pollution control, Water 

supply. 

40 CFR Part 281 

Environmental protection, 

Administrative practice and procedures, 

Hazardous substances, Petroleum, State 

program approval, Underground storage 

tanks. 

Dated: October 25, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, Title 40 Chapter I of Code of 

Federal Regulations is proposed to be 

amended as follows. 

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71762 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

PART 280—TECHNICAL STANDARDS 

AND CORRECTIVE ACTION 

REQUIREMENTS FOR OWNERS AND 

OPERATORS OF UNDERGROUND 

STORAGE TANKS (UST) 

1. The authority citation for part 280 

is revised to read as follows: 

Authority: 42 U.S.C. 6912, 6991, 6991(a), 

6991(b), 6991(c), 6991(d), 6991(e), 6991(f), 

6991(g), 6991(h), 6991(i). 

2. Revise § 280.10 to read as follows: 

§ 280.10 Applicability. 

(a) The requirements of this part 

apply to all owners and operators of an 

UST system as defined in § 280.12 

except as otherwise provided in 

paragraphs (b) and (c) of this section. 

(1) Previously deferred UST systems. 

UST systems previously deferred from 

subparts B, C, D, E, G and H (airport 

hydrant fuel distribution systems, UST 

systems with field-constructed tanks, 

and wastewater treatment tank systems) 

and UST systems previously deferred 

from subpart D (UST systems that store 

fuel solely for use by emergency power 

generators) must begin meeting the 

requirements of this part as follows: 

(i) UST systems installed on or before 

[effective date of rule] must meet the 

schedule in the following table. 

Type of UST system Subpart or Section Effective date 

UST systems that store fuel solely for use by 

emergency power generators.

D ....................................................................... [1 Year after effective date of rule]. 

Airport hydrant fuel distribution systems; UST 

systems with field-constructed tanks; and 

wastewater treatment tank systems.

B (except § 280.22) and C ...............................

D .......................................................................

§ 280.22 of subpart B, E, G and H ..................

[3 Years after effective date of rule]. 

See the phase in schedule in § 280.40(c). 

[effective date of rule]. 

(ii) UST systems installed after 

[effective date of rule] must meet all 

requirements at installation. 

(2) Any UST system listed in 

paragraph (c) of this section must meet 

the requirements of § 280.11. 

(b) The following UST systems are 

excluded from the requirements of this 

part: 

(1) Any UST system holding 

hazardous wastes listed or identified 

under Subtitle C of the Solid Waste 

Disposal Act, or a mixture of such 

hazardous waste and other regulated 

substances. 

(2) Any wastewater treatment tank 

system that is part of a wastewater 

treatment facility regulated under 

Section 402 or 307(b) of the Clean Water 

Act. 

(3) Equipment or machinery that 

contains regulated substances for 

operational purposes such as hydraulic 

lift tanks and electrical equipment 

tanks. 

(4) Any UST system whose capacity is 

110 gallons or less. 

(5) Any UST system that contains a de 

minimis concentration of regulated 

substances. 

(6) Any emergency spill or overflow 

containment UST system that is 

expeditiously emptied after use. 

(c) Deferrals. Subparts B, C, D, E, and 

G of this part do not apply to: 

(1) Aboveground tanks associated 

with: 

(i) Airport hydrant fuel distribution 

systems; and 

(ii) UST systems with fieldconstructed tanks; 

(2) Any UST systems containing 

radioactive material that are regulated 

under the Atomic Energy Act of 1954 

(42 USC 2011 and following); and 

(3) Any UST system that is part of an 

emergency generator system at nuclear 

power generation facilities regulated by 

the Nuclear Regulatory Commission 

under 10 CFR part 50. 

3. In § 280.11 revise the Note at the 

end of the section to read as follows: 

§ 280.11 Interim prohibition for deferred 

UST systems. 

* * * * * 

Note to paragraphs (a) and (b): The 

following codes of practice may be used as 

guidance for complying with this section: 

(A) NACE International Recommended 

Practice RP 0285, ‘‘Corrosion Control of 

Underground Storage Systems by Cathodic 

Protection’’; 

(B) NACE International Standard Practice 

SP 0169, ‘‘Control of External Corrosion on 

Underground or Submerged Metallic Piping 

Systems’’; 

(C) American Petroleum Institute 

Recommended Practice 1632, ‘‘Cathodic 

Protection of Underground Petroleum Storage 

Tanks and Piping Systems’’; or 

(D) Steel Tank Institute Recommended 

Practice R892, ‘‘Recommended Practice for 

Corrosion Protection of Underground Piping 

Networks Associated with Liquid Petroleum 

Storage and Dispensing Systems’’. 

4. Section 280.12 is amended as follows: 

a. By adding in alphabetical order 

definitions for ‘‘Airport hydrant fuel 

distribution system,’’ ‘‘Class A 

operator,’’ ‘‘Class B operator,’’ ‘‘Class C 

operator,’’ ‘‘Dispenser system,’’ 

‘‘Replaced,’’ ‘‘Secondary containment,’’ 

‘‘Training program,’’ and ‘‘Underdispenser containment,’’ and 

b. By revising the definitions for 

‘‘Motor fuel,’’ ‘‘Regulated substance,’’ 

‘‘Repair,’’ and ‘‘Underground storage 

tank.’’ 

§ 280.12 Definitions. 

* * * * * 

Airport hydrant fuel distribution 

system means an UST system that is a 

combination of one or more tanks 

directly connected to underground 

hydrant piping used to fuel aircraft. 

These systems do not have a dispenser 

at the end of the piping run, but rather 

have a hydrant (fill stand). If an 

aboveground storage tank (AST) is 

feeding an intermediary tank or tanks, 

this definition does not include the 

AST, but does include all underground 

piping entering and leaving the 

intermediary tank(s) and the 

intermediary tank(s). Intermediary tanks 

are those tanks directly connected to the 

hydrant piping. 

* * * * * 

Class A operator means the individual 

who has primary responsibility to 

operate and maintain the UST system in 

accordance with applicable 

requirements and standards established 

by the implementing agency. The Class 

A operator typically manages resources 

and personnel, such as establishing 

work assignments, to achieve and 

maintain compliance with regulatory 

requirements. 

Class B operator means the individual 

who has day-to-day responsibility for 

implementing applicable regulatory 

requirements and standards established 

by the implementing agency. The Class 

B operator typically implements in-field 

aspects of operation, maintenance, and 

associated recordkeeping for the UST 

system. 

Class C operator means the employee 

responsible for initially addressing 

emergencies presented by a spill or 

release from an UST system. The Class 

C operator typically controls or 

monitors the dispensing or sale of 

regulated substances. 

* * * * * 

Dispenser system means equipment 

located aboveground that meters the 

amount of regulated substances 

transferred to a point of use outside the 

UST system, such as a motor vehicle. 

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This system includes the equipment 

necessary to connect the dispenser to 

the underground storage tank system. 

* * * * * 

Motor fuel means petroleum or a 

petroleum-based substance that is 

typically used in the operation of a 

motor engine, such as motor gasoline, 

aviation gasoline, No. 1 or No. 2 diesel 

fuel, or any blend containing one or 

more of these substances (for example: 

motor gasoline blended with alcohol). 

* * * * * 

Regulated substance means 

(a) Any substance defined in section 

101(14) of the Comprehensive 

Environmental Response, Compensation 

and Liability Act (CERCLA) of 1980 (but 

not including any substance regulated 

as a hazardous waste under subtitle C), 

and 

(b) Petroleum, including crude oil or 

any fraction thereof that is liquid at 

standard conditions of temperature and 

pressure (60 degrees Fahrenheit and 

14.7 pounds per square inch absolute). 

The term ‘‘regulated substance’’ 

includes but is not limited to petroleum 

and petroleum-based substances 

comprised of a complex blend of 

hydrocarbons, such as motor fuels, jet 

fuels, distillate fuel oils, residual fuel 

oils, lubricants, petroleum solvents, and 

used oils. 

* * * * * 

Repair means to restore a tank, pipe, 

spill prevention equipment, overfill 

prevention equipment, corrosion 

protection equipment, release detection 

equipment or other UST system 

component that has caused a release or 

a suspected release of product from the 

UST system or has failed to function 

properly. 

Replaced means 

(a) For a tank—to remove a tank and 

install another tank. 

(b) For piping—to remove 50 percent 

or more of piping and install other 

piping, excluding connectors, connected 

to a single tank. For tanks with multiple 

piping runs, this definition applies 

independently to each piping run. 

* * * * * 

Secondary containment or 

Secondarily contained means a release 

prevention and release detection system 

for a tank and/or piping. These systems 

have an inner and outer barrier with an 

interstitial space that is monitored for 

leaks. 

* * * * * 

Training program means any program 

established by the implementing agency 

that provides information to and 

evaluates the knowledge of a Class A, 

Class B, or Class C operator regarding 

requirements and standards for UST 

systems. 

Under-dispenser containment or UDC 

means containment underneath a 

dispenser system designed to prevent 

dispenser system leaks from reaching 

soil or groundwater. 

* * * * * 

Underground storage tank or UST 

means any one or combination of tanks 

(including underground pipes 

connected thereto) that is used to 

contain an accumulation of regulated 

substances, and the volume of which 

(including the volume of underground 

pipes connected thereto) is 10 percent 

or more beneath the surface of the 

ground. This term does not include any: 

(a) Farm or residential tank of 1,100 

gallons or less capacity used for storing 

motor fuel for noncommercial purposes; 

(b) Tank used for storing heating oil 

for consumptive use on the premises 

where stored; 

(c) Septic tank; 

(d) Pipeline facility (including 

gathering lines): 

(1) Which is regulated under U.S.C. 

chapters 601 and 603, or 

(2) Which is an intrastate pipeline 

facility regulated under state laws as 

provided in U.S.C. 49 chapters 601 and 

603,and which is determined by the 

Secretary of Transportation to be 

connected to a pipeline, or to be 

operated or intended to be capable of 

operating at pipeline pressure, or as an 

integral part of a pipeline; 

(e) Surface impoundment, pit, pond, 

or lagoon; 

(f) Storm-water or wastewater 

collection system; 

(g) Flow-through process tank; 

(h) Liquid trap or associated gathering 

lines directly related to oil or gas 

production and gathering operations; or 

(i) Storage tank situated in an 

underground area (such as a basement, 

cellar, mineworking, drift, shaft, or 

tunnel) if the storage tank is situated 

upon or above the surface of the floor. 

The term underground storage tank or 

UST does not include any pipes 

connected to any tank which is 

described in paragraphs (a) through (i) 

of this definition. 

* * * * * 

5. Revise Subpart B to read as follows: 

Subpart B—UST Systems: Design, 

Construction, Installation and 

Notification 

Sec. 

280.20 Performance standards for new UST 

systems. 

280.21 Upgrading of existing UST systems. 

280.22 Notification requirements. 

Subpart B—UST Systems: Design, 

Construction, Installation and 

Notification 

§ 280.20 Performance standards for new 

UST systems. 

In order to prevent releases due to 

structural failure, corrosion, or spills 

and overfills for as long as the UST 

system is used to store regulated 

substances, all owners and operators of 

new UST systems must meet the 

following requirements. 

(a) Tanks. Each tank must be properly 

designed and constructed, and any 

portion underground that routinely 

contains product must be protected 

from corrosion, in accordance with a 

code of practice developed by a 

nationally recognized association or 

independent testing laboratory as 

specified in paragraphs (a)(1) through 

(a)(5) of this section. In addition, all 

new or replaced tanks where 

installation began after [effective date of 

rule] must be secondarily contained in 

accordance with paragraph (a)(6) of this 

section: 

(1) The tank is constructed of 

fiberglass-reinforced plastic; or 

Note to paragraph (a)(1): The following 

codes of practice may be used to comply with 

paragraph (a)(1) of this section: 

(A) Underwriters Laboratories Standard 

1316, ‘‘Glass-Fiber-Reinforced Plastic 

Underground Storage Tanks for Petroleum 

Products, Alcohols, and Alcohol-Gasoline 

Mixtures’’; or 

(B) Underwriter’s Laboratories of Canada 

S615, ‘‘Standard for Reinforced Plastic 

Underground Tanks for Flammable and 

Combustible Liquids’’. 

(2) The tank is constructed of steel 

and cathodically protected in the 

following manner: 

(i) The tank is coated with a suitable 

dielectric material; 

(ii) Field-installed cathodic protection 

systems are designed by a corrosion 

expert; 

(iii) Impressed current systems are 

designed to allow determination of 

current operating status as required in 

§ 280.31(c); and 

(iv) Cathodic protection systems are 

operated and maintained in accordance 

with § 280.31 or according to guidelines 

established by the implementing 

agency; or 

Note to paragraph (a)(2): The following 

codes of practice may be used to comply with 

paragraph (a)(2) of this section: 

(A) Steel Tank Institute Specification 

‘‘sti-P3® Specification and Manual for 

External Corrosion Protection of 

Underground Steel Storage Tanks’’; 

(B) Underwriters Laboratories Standard 

1746, ‘‘Standard for External Corrosion 

Protection Systems for Steel Underground 

Storage Tanks’’; 

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(C) Underwriters Laboratories of Canada 

S603, ‘‘Standard for Steel Underground 

Tanks for Flammable and Combustible 

Liquids,’’ and S603.1, ‘‘Standard for External 

Corrosion Protection Systems for Steel 

Underground Tanks for Flammable and 

Combustible Liquids,’’ and S631, ‘‘Standard 

for Isolating Bushings for Steel Underground 

Tanks Protected with External Corrosion 

Protection Systems’’; 

(D) Steel Tank Institute Standard F841, 

‘‘Standard for Dual Wall Underground Steel 

Storage Tanks’’; or 

(E) NACE International Recommended 

Practice RP 0285, ‘‘Corrosion Control of 

Underground Storage Systems by Cathodic 

Protection,’’ and Underwriters Laboratories 

Standard 58, ‘‘Standard for Steel 

Underground Tanks for Flammable and 

Combustible Liquids’’. 

(3) The tank is constructed of steel 

and clad or jacketed with a noncorrodible material; or 

Note to paragraph (a)(3): The following 

codes of practice may be used to comply with 

paragraph (a)(3) of this section: 

(A) Underwriters Laboratories Standard 

1746, ‘‘Standard for External Corrosion 

Protection Systems for Steel Underground 

Storage Tanks’’; 

(B) Steel Tank Institute Specification F894, 

‘‘ACT–100® Specification for External 

Corrosion Protection of FRP Composite Steel 

USTs’’; 

(C) Steel Tank Institute Specification F961, 

‘‘ACT–100–U® Specification for External 

Corrosion Protection of Composite Steel 

Underground Storage Tanks’’; or 

(D) Steel Tank Institute Specification F922, 

‘‘Steel Tank Institute Specification for 

Permatank®’’. 

(4) The tank is constructed of metal 

without additional corrosion protection 

measures provided that: 

(i) The tank is installed at a site that 

is determined by a corrosion expert not 

to be corrosive enough to cause it to 

have a release due to corrosion during 

its operating life; and 

(ii) Owners and operators maintain 

records that demonstrate compliance 

with the requirements of paragraph 

(a)(4)(i) of this section for the remaining 

life of the tank; or 

(5) The tank construction and 

corrosion protection are determined by 

the implementing agency to be designed 

to prevent the release or threatened 

release of any stored regulated 

substance in a manner that is no less 

protective of human health and the 

environment than paragraphs (a)(1) 

through (4) of this section; or 

(6) The tank is secondarily contained. 

Secondary containment must be 

periodically tested in accordance with 

§ 280.36. Secondarily contained tanks 

must meet the following: 

(i) Be able to contain regulated 

substances leaked from the primary 

containment until they are detected and 

removed; and 

(ii) Be able to prevent the release of 

regulated substances to the environment 

at any time during the operational life 

of the UST system. 

Note to paragraph (a)(6): The following 

codes of practice may be used to comply with 

paragraph (a)(6) of this section: 

(A) Underwriters Laboratories Standard 58, 

‘‘Standard for Steel Underground Tanks for 

Flammable and Combustible Liquids’’; 

(B) Underwriters Laboratories Standard 

1316, ‘‘Glass-Fiber-Reinforced Plastic 

Underground Storage Tanks for Petroleum 

Products, Alcohols, and Alcohol-Gasoline 

Mixtures’’; 

(C) Underwriters Laboratories Standard 

1746, ‘‘Standard for External Corrosion 

Protection Systems for Steel Underground 

Storage Tanks’’; 

(D) Steel Tank Institute Standard F841, 

‘‘Standard for Dual Wall Underground Steel 

Storage Tanks’’; or 

(E) Steel Tank Institute Specification F922, 

‘‘Steel Tank Institute Specification for 

Permatank®’’. 

(b) Piping. The piping that routinely 

contains regulated substances and is in 

contact with the ground must be 

properly designed, constructed, and 

protected from corrosion in accordance 

with a code of practice developed by a 

nationally recognized association or 

independent testing laboratory as 

specified in paragraphs (b)(1) through 

(b)(4) of this section. In addition, except 

for suction piping that meets the 

requirements of 280.41(b)(1)(ii)(A) 

through (E) and piping associated with 

field-constructed tanks and airport 

hydrant fuel distribution systems, all 

new or replaced piping where 

installation began after [effective date of 

rule] must be secondarily contained in 

accordance with paragraph (b)(5) of this 

section. The entire piping run must be 

replaced when 50 percent or more of a 

piping run is replaced. 

(1) The piping is constructed of a noncorrodible material; or 

Note to paragraph (b)(1): The following 

codes of practice may be used to comply with 

paragraph (b)(1) of this section: 

(A) Underwriters Laboratories Standard 

971, ‘‘Standard for Non-Metallic 

Underground Piping for Flammable Liquids’’; 

or 

(B) Underwriters Laboratories of Canada 

Standard S660, ’’ Standard for Non-Metallic 

Underground Piping for Flammable Liquids’’. 

(2) The piping is constructed of steel 

and cathodically protected in the 

following manner: 

(i) The piping is coated with a 

suitable dielectric material; 

(ii) Field-installed cathodic protection 

systems are designed by a corrosion 

expert; 

(iii) Impressed current systems are 

designed to allow determination of 

current operating status as required in 

§ 280.31(c); and 

(iv) Cathodic protection systems are 

operated and maintained in accordance 

with § 280.31 or guidelines established 

by the implementing agency; or 

Note to paragraph (b)(2): The following 

codes of practice may be used to comply with 

paragraph (b)(2) of this section: 

(A) American Petroleum Institute 

Recommended Practice 1632, ‘‘Cathodic 

Protection of Underground Petroleum Storage 

Tanks and Piping Systems’’; 

(B) Underwriters Laboratories Subject 

971A, ‘‘Outline of Investigation for Metallic 

Underground Fuel Pipe’’; 

(C) Steel Tank Institute Recommended 

Practice R892, ‘‘Recommended Practice for 

Corrosion Protection of Underground Piping 

Networks Associated with Liquid Petroleum 

Storage and Dispensing Systems’’; 

(D) NACE International Standard Practice 

SP 0169, ‘‘Control of External Corrosion on 

Underground or Submerged Metallic Piping 

Systems’’; or 

(E) NACE International Recommended 

Practice RP 0285, ‘‘Corrosion Control of 

Underground Storage Systems by Cathodic 

Protection’’. 

(3) The piping is constructed of metal 

without additional corrosion protection 

measures provided that: 

(i) The piping is installed at a site that 

is determined by a corrosion expert to 

not be corrosive enough to cause it to 

have a release due to corrosion during 

its operating life; and 

(ii) Owners and operators maintain 

records that demonstrate compliance 

with the requirements of paragraph 

(b)(3)(i) of this section for the remaining 

life of the piping; or 

(4) The piping construction and 

corrosion protection are determined by 

the implementing agency to be designed 

to prevent the release or threatened 

release of any stored regulated 

substance in a manner that is no less 

protective of human health and the 

environment than the requirements in 

paragraphs (b)(1) through (3) of this 

section; or 

(5) The piping is secondarily 

contained. Secondary containment must 

be periodically tested in accordance 

with § 280.36. Secondarily contained 

piping must meet the following: 

(i) Be able to contain regulated 

substances leaked from the primary 

containment until they are detected and 

removed; and 

(ii) Be able to prevent the release of 

regulated substances to the environment 

at any time during the operational life 

of the UST system. 

Note to paragraph (b)(5): The following 

codes of practice may be used to comply with 

paragraph (b)(5) of this section: 

(A) Underwriters Laboratories Standard 

971, ‘‘Standard for Non-Metallic 

Underground Piping for Flammable Liquids’’; 

or 

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(B) Underwriters Laboratories Subject 

971A, ‘‘Outline of Investigation for Metallic 

Underground Fuel Pipe’’. 

(c) Spill and overfill prevention 

equipment. 

(1) Except as provided in paragraphs 

(c)(2) and (c)(3) of this section, to 

prevent spilling and overfilling 

associated with product transfer to the 

UST system, owners and operators must 

use the following spill and overfill 

prevention equipment: 

(i) Spill prevention equipment that 

will prevent release of product to the 

environment when the transfer hose is 

detached from the fill pipe (for example, 

a spill catchment basin); and 

(ii) Overfill prevention equipment 

that will: 

(A) Automatically shut off flow into 

the tank when the tank is no more than 

95 percent full; or 

(B) 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; or 

(C) Restrict flow 30 minutes prior to 

overfilling, alert the transfer operator 

with a high level alarm one minute 

before overfilling, or automatically shut 

off flow into the tank so that none of the 

fittings located on top of the tank are 

exposed to product due to overfilling. 

(2) Owners and operators are not 

required to use the spill and overfill 

prevention equipment specified in 

paragraph (c)(1) of this section if: 

(i) Alternative equipment is used that 

is determined by the implementing 

agency to be no less protective of human 

health and the environment than the 

equipment specified in paragraph 

(c)(1)(i) or (ii) of this section; or 

(ii) The UST system is filled by 

transfers of no more than 25 gallons at 

one time. 

(3) Flow restrictors used in vent lines 

may not be used to comply with 

paragraph (c)(1)(ii) of this section when 

overfill prevention is installed or 

replaced after [effective date of rule]. 

(4) Spill and overfill prevention 

equipment must be periodically tested 

in accordance with § 280.35. 

(d) Installation. All tanks and piping 

must be properly installed in 

accordance with a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory and in accordance with the 

manufacturer’s instructions. 

Note to paragraph (d): Tank and piping 

system installation practices and procedures 

described in the following codes of practice 

may be used to comply with the 

requirements of paragraph (d) of this section: 

(A) American Petroleum Institute 

Publication 1615, ‘‘Installation of 

Underground Petroleum Storage System’’; 

(B) Petroleum Equipment Institute 

Publication RP100, ‘‘Recommended Practices 

for Installation of Underground Liquid 

Storage Systems’’; or 

(C) National Fire Protection Association 

Standard 30, ‘‘Flammable and Combustible 

Liquids Code’’ and Standard 30A, ‘‘Code for 

Motor Fuel Dispensing Facilities and Repair 

Garages’’. 

(e) Certification of installation. All 

owners and operators must ensure that 

one or more of the following methods of 

certification, testing, or inspection is 

used to demonstrate compliance with 

paragraph (d) of this section by 

providing a certification of compliance 

on the UST notification form in 

accordance with § 280.22. 

(1) The installer has been certified by 

the tank and piping manufacturers; or 

(2) The installer has been certified or 

licensed by the implementing agency; or 

(3) The installation has been 

inspected and certified by a registered 

professional engineer with education 

and experience in UST system 

installation; or 

(4) The installation has been 

inspected and approved by the 

implementing agency; or 

(5) All work listed in the 

manufacturer’s installation checklists 

has been completed; or 

(6) The owner and operator have 

complied with another method for 

ensuring compliance with paragraph (d) 

of this section that is determined by the 

implementing agency to be no less 

protective of human health and the 

environment. 

(f) Dispenser Systems. Each UST 

system must be equipped with underdispenser containment for any new 

dispenser system installed. 

(1) A dispenser system is considered 

new when both the dispenser and the 

equipment needed to connect the 

dispenser to the underground storage 

tank system are installed at an UST 

facility. The equipment necessary to 

connect the dispenser to the 

underground storage tank system 

includes check valves, shear valves, 

unburied risers or flexible connectors, 

or other transitional components that 

are beneath the dispenser and connect 

the dispenser to the underground 

piping. 

(2) Under-dispenser containment 

must be liquid-tight on its sides, bottom, 

and at any penetrations. Underdispenser containment must allow for 

visual inspection and access to the 

components in the containment system 

or be continuously monitored for leaks 

from the dispenser system. 

§ 280.21 Upgrading of existing UST 

systems. 

In accordance with subpart G of this 

part, owners and operators must 

permanently close any UST system that 

does not meet the new UST system 

performance standards in § 280.20 or 

has not been upgraded in accordance 

with paragraphs (b) through (d) of this 

section. This does not apply to 

previously deferred UST systems 

described in paragraph (e) of this 

section and where an upgrade is 

determined to be appropriate by the 

implementing agency. 

(a) Alternatives allowed. All existing 

UST systems must comply with one of 

the following requirements: 

(1) New UST system performance 

standards under § 280.20; 

(2) The upgrading requirements in 

paragraphs (b) through (d) of this 

section; or 

(3) Closure requirements under 

subpart G of this part, including 

applicable requirements for corrective 

action under subpart F. 

(b) Tank upgrading requirements. 

Steel tanks must be upgraded to meet 

one of the following requirements in 

accordance with a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory: 

(1) Interior lining. Tanks upgraded by 

internal lining must meet the following: 

(i) The lining was installed in 

accordance with the requirements of 

§ 280.33, and 

(ii) Within 10 years after lining, and 

every 5 years thereafter, the lined tank 

is internally inspected and found to be 

structurally sound with the lining still 

performing in accordance with original 

design specifications. If the internal 

lining is no longer performing in 

accordance with original design 

specifications and cannot be repaired in 

accordance with a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory, then the lined tank must be 

permanently closed in accordance with 

subpart G of this part. 

(2) Cathodic protection. Tanks 

upgraded by cathodic protection must 

meet the requirements of 

§ 280.20(a)(2)(ii), (iii), and (iv) and the 

integrity of the tank must have been 

ensured using one of the following 

methods: 

(i) The tank was internally inspected 

and assessed to ensure that the tank was 

structurally sound and free of corrosion 

holes prior to installing the cathodic 

protection system; or 

(ii) The tank had been installed for 

less than 10 years and is monitored 

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monthly for releases in accordance with 

§ 280.43(d) through (i); or 

(iii) The tank had been installed for 

less than 10 years and was assessed for 

corrosion holes by conducting two 

tightness tests that meet the 

requirements of § 280.43(c). The first 

tightness test must have been conducted 

prior to installing the cathodic 

protection system. The second tightness 

test must have been conducted between 

three and six months following the first 

operation of the cathodic protection 

system; or 

(iv) The tank was assessed for 

corrosion holes by a method that is 

determined by the implementing agency 

to prevent releases in a manner that is 

no less protective of human health and 

the environment than paragraphs 

(b)(2)(i) through (iii) of this section. 

(3) Internal lining combined with 

cathodic protection. Tanks upgraded by 

both internal lining and cathodic 

protection must meet the following: 

(i) The lining was installed in 

accordance with the requirements of 

§ 280.33; and 

(ii) The cathodic protection system 

meets the requirements of 

§ 280.20(a)(2)(ii), (iii), and (iv). 

Note to paragraph (b): The following 

historical codes of practice were listed as 

options for complying with paragraph (b) of 

this section: 

(A) American Petroleum Institute 

Publication 1631, ‘‘Recommended Practice 

for the Interior Lining of Existing Steel 

Underground Storage Tanks’’; 

(B) National Leak Prevention Association 

Standard 631, ‘‘Spill Prevention, Minimum 

10 Year Life Extension of Existing Steel 

Underground Tanks by Lining Without the 

Addition of Cathodic Protection’’; 

(C) National Association of Corrosion 

Engineers Standard RP–02–85, ‘‘Control of 

External Corrosion on Metallic Buried, 

Partially Buried, or Submerged Liquid 

Storage Systems’’; and 

(D) American Petroleum Institute 

Publication 1632, ‘‘Cathodic Protection of 

Underground Petroleum Storage Tanks and 

Piping Systems’’. 

Note to paragraph (b)(1)(ii): The following 

codes of practice may be used to comply with 

the periodic lining inspection requirement of 

this section: 

(A) American Petroleum Institute 

Recommended Practice 1631, ‘‘Interior 

Lining and Periodic Inspection of 

Underground Storage Tanks’’; 

(B) National Leak Prevention Association 

Standard 631, ‘‘Entry, Cleaning, Interior 

Inspection, Repair, and Lining of 

Underground Storage Tanks’’; or 

(C) Ken Wilcox Associates Recommended 

Practice, ‘‘Recommended Practice for 

Inspecting Buried Lined Steel Tanks Using a 

Video Camera’’. 

(c) Piping upgrading requirements. 

Metal piping that routinely contains 

regulated substances and is in contact 

with the ground must be cathodically 

protected in accordance with a code of 

practice developed by a nationally 

recognized association or independent 

testing laboratory and must meet the 

requirements of § 280.20(b)(2)(ii), (iii), 

and (iv). 

Note to paragraph (c): The codes of 

practice listed in the note following 

§ 280.20(b)(2) may be used to comply with 

this requirement. 

(d) Spill and overfill prevention 

equipment. To prevent spilling and 

overfilling associated with product 

transfer to the UST system, all existing 

UST systems must comply with new 

UST system spill and overfill 

prevention equipment requirements 

specified in § 280.20(c). 

(e) Upgrade requirements for 

previously deferred UST systems. 

Previously deferred wastewater 

treatment tank systems, airport hydrant 

fuel distribution systems, and UST 

systems with field-constructed tanks 

where installation commenced on or 

before [effective date of rule] must meet 

the following requirements according to 

the time table in subpart A or be 

permanently closed pursuant to subpart 

G of this part. 

(1) Corrosion protection. UST system 

components in contact with the ground 

that routinely contain regulated 

substances must meet one of the 

following: 

(i) The new UST system performance 

standards for tanks at § 280.20(a) and for 

piping at § 280.20(b); or 

(ii) Be constructed of metal and 

cathodically protected according to a 

code of practice developed by a 

nationally recognized association or 

independent testing laboratory and 

meets the following: 

(A) Cathodic protection must meet the 

requirements of § 280.20(a)(2)(ii), (iii) 

and (iv) for tanks, and § 280.20(b)(2)(ii), 

(iii), and (iv) for piping. 

(B) Tanks greater than 10 years old 

without cathodic protection must be 

assessed to ensure the tank is 

structurally sound and free of corrosion 

holes prior to adding cathodic 

protection. The assessment must be by 

internal inspection or another method 

determined by the implementing agency 

to adequately assess the tank for 

structural soundness and corrosion 

holes. 

Note to paragraph (e): The following codes 

of practice may be used to comply with this 

paragraph: 

(A) NACE International Recommended 

Practice RP 0285, ‘‘Control of Underground 

Storage Tank Systems by Cathodic 

Protection’’; 

(B) NACE International Standard Practice 

SP 0169, ‘‘Control of External Corrosion on 

Underground or Submerged Metallic Piping 

Systems’’; 

(C) National Leak Prevention Association 

Standard 631, ‘‘Entry, Cleaning, Interior 

Inspection, Repair, and Lining of 

Underground Storage Tanks’’; or 

(D) American Society for Testing and 

Materials Standard G158, ‘‘Standard Guide 

for Three Methods of Assessing Buried Steel 

Tanks’’. 

(2) Spill and overfill prevention 

equipment. To prevent spilling and 

overfilling associated with product 

transfer to the UST system, all 

previously deferred UST systems must 

comply with new UST system spill and 

overfill prevention equipment 

requirements specified in § 280.20(c). 

§ 280.22 Notification requirements. 

(a) After May 8, 1986, an owner must 

submit notice of a tank system’s 

existence to the implementing agency 

within 30 days of bringing the 

underground storage tank system into 

use. Owners must use the form in 

Appendix I of this part. 

Note to paragraph (a): Owners and 

operators of UST systems that were in the 

ground on or after May 8, 1986, unless taken 

out of operation on or before January 1, 1974, 

were required to notify the designated state 

or local agency in accordance with the 

Hazardous and Solid Waste Amendments of 

1984, Public Law 98–616, on a form 

published by EPA on November 8, 1985 (50 

FR 46602) unless notice was given pursuant 

to section 103(c) of CERCLA. Owners and 

operators who have not complied with the 

notification requirements may use portions I 

through VI of the notification form contained 

in Appendix I of this part. 

(b) Within 30 days of acquisition, any 

person who assumes ownership of a 

regulated underground storage tank 

system, except as described in 

paragraph (a) of this section, must 

submit a notice of the ownership change 

to the implementing agency, using the 

form in Appendix II of this part. 

(c) In states where state law, 

regulations, or procedures require 

owners to use forms that differ from 

those set forth in Appendix I and 

Appendix II of this part to fulfill the 

requirements of this section, the state 

forms may be submitted in lieu of the 

forms set forth in Appendix I and 

Appendix II of this part. If a state 

requires that its form be used in lieu of 

the form presented in Appendix I and 

Appendix II of this part, such form 

must, at a minimum, collect the 

information prescribed in Appendix I 

and Appendix II of this part. 

(d) Owners required to submit notices 

under paragraph (a) or (b) of this section 

must provide notices to the appropriate 

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implementing agency for each tank they 

own. Owners may provide notice for 

several tanks using one notification 

form, but owners who own tanks 

located at more than one place of 

operation must file a separate 

notification form for each separate place 

of operation. 

(e) All owners and operators of new 

UST systems must certify in the 

notification form compliance with the 

following requirements: 

(1) Installation of tanks and piping 

under § 280.20(e); 

(2) Cathodic protection of steel tanks 

and piping under § 280.20(a) and (b); 

(3) Financial responsibility under 

subpart H of this part; and 

(4) Release detection under §§ 280.41 

and 280.42. 

(f) All owners and operators of new 

UST systems must ensure that the 

installer certifies in the notification 

form that the methods used to install the 

tanks and piping complies with the 

requirements in § 280.20(d). 

(g) Beginning October 24, 1988, any 

person who sells a tank intended to be 

used as an underground storage tank 

must notify the purchaser of such tank 

of the owner’s notification obligations 

under paragraph (a) of this section. The 

statement provided in Appendix III of 

this part, when used on shipping tickets 

and invoices, may be used to comply 

with this requirement. 

(h) Within 30 days of [Effective date 

of rule], all owners of previously 

deferred UST systems must submit a 

notice of tank system existence to the 

implementing agency, using the form in 

Appendix I of this part. 

6. In § 280.30 revise the Note to read 

as follows: 

§ 280.30 Spill and overfill control. 

* * * * * 

Note: The transfer procedures described in 

National Fire Protection Association 

Standard 385, ‘‘Standard for Tank Vehicles 

for Flammable and Combustible Liquids’’ or 

American Petroleum Institute Recommended 

Practice 1007, ‘‘Loading and Unloading of 

MC 306/DOT 406 Cargo Tank Motor 

Vehicles’’ may be used to comply with 

paragraph (a) of this section. Further 

guidance on spill and overfill prevention 

appears in American Petroleum Institute 

Recommended Practice 1621, ‘‘Bulk Liquid 

Stock Control at Retail Outlets’’. 

* * * * * 

7. In § 280.31 revise the introductory 

text and the Note to read as follows: 

§ 280.31 Operation and maintenance of 

corrosion protection. 

All owners and operators of metal 

UST systems with corrosion protection 

must comply with the following 

requirements to ensure that releases due 

to corrosion are prevented until the UST 

system is permanently closed or 

undergoes a change-in-service pursuant 

to § 280.71: 

* * * * * 

Note to paragraph (b): The following codes 

of practice may be used to comply with 

paragraph (b) of this section: 

(A) NACE International Test Method TM 

0101, ‘‘Measurement Techniques Related to 

Criteria for Cathodic Protection on 

Underground or Submerged Metallic Tank 

Systems’’; 

(B) NACE International Test Method 

TM0497, ‘‘Measurement Techniques Related 

to Criteria for Cathodic Protection on 

Underground or Submerged Metallic Piping 

Systems’’; 

(C) Steel Tank Institute Recommended 

Practice R051, ‘‘Cathodic Protection Testing 

Procedures for sti-P3 USTs’’; 

(D) NACE International Recommended 

Practice RP 0285, ‘‘Control of Underground 

Storage Tank Systems by Cathodic 

Protection’’; or 

(E) NACE International Standard Practice 

SP 0169, ‘‘Control of External Corrosion on 

Underground or Submerged Metallic Piping 

Systems’’. 

* * * * * 

8. Amend § 280.32 to revise paragraph 

(a) and to add paragraphs (b) and (c) to 

read as follows: 

§ 280.32 Compatibility. 

* * * * * 

(a) Owners and operators must use an 

UST system made of or lined with 

materials that are compatible with the 

substance stored in the UST system. 

(b) Owners and operators storing any 

regulated substance containing greater 

than 10 percent ethanol or greater than 

20 percent biodiesel, or any other 

regulated substance identified by the 

implementing agency, must use one or 

more of the following methods to 

demonstrate UST system compatibility 

with these regulated substances: 

(1) Certification or listing of UST 

system components by a nationally 

recognized, independent testing 

laboratory for use with the regulated 

substance stored; 

(2) Equipment or component 

manufacturer approval. The 

manufacturer’s approval must be in 

writing, indicate an affirmative 

statement of compatibility, specify the 

range of biofuel blends the component 

is compatible with, and be from the 

equipment or component manufacturer; 

or 

(3) Another method determined by 

the implementing agency to be no less 

protective of human health and the 

environment than the methods listed in 

paragraphs (b)(1) or (b)(2) of this 

section. 

(c) Owners and operators must 

maintain the following records (in 

accordance with § 280.34) for the life of 

the equipment or component: 

(1) Documentation of compliance 

with paragraph (b) of this section, as 

applicable; and 

(2) Records of all equipment or 

components installed or replaced after 

[effective date of rule]. At a minimum, 

each record must include the date of 

installation or replacement, 

manufacturer, and model. 

9. Revise § 280.33 to read as follows: 

§ 280.33 Repairs allowed. 

Owners and operators of UST systems 

must ensure that repairs will prevent 

releases due to structural failure or 

corrosion as long as the UST system is 

used to store regulated substances. The 

repairs must meet the following 

requirements: 

(a) Repairs to UST systems must be 

properly conducted in accordance with 

a code of practice developed by a 

nationally recognized association or an 

independent testing laboratory. 

Note to paragraph (a): The following codes 

of practice may be used to comply with 

paragraph (a) of this section: 

(A) National Fire Protection Association 

Standard 30, ‘‘Flammable and Combustible 

Liquids Code’’; 

(B) American Petroleum Institute 

Recommended Practice RP 2200, ‘‘Repairing 

Crude Oil, Liquified Petroleum Gas, and 

Product Pipelines’’; 

(C) American Petroleum Institute 

Recommended Practice RP 1631, ‘‘Interior 

Lining and Periodic Inspection of 

Underground Storage Tanks’’; 

(D) National Fire Protection Association 

Standard 326, ‘‘Safeguarding of Tanks and 

Containers for Entry, Cleaning, or Repair’’; 

(E) National Leak Prevention Association 

Standard 631, ‘‘Entry, Cleaning, Interior 

Inspection, Repair, and Lining of 

Underground Storage Tanks’’; 

(F) Steel Tank Institute Recommended 

Practice R972, ‘‘Recommended Practice for 

the Addition of Supplemental Anodes to stiP3® Tanks’’; 

(G) NACE International Recommended 

Practice RP 0285, ‘‘Control of Underground 

Storage Tank Systems by Cathodic 

Protection’’; or 

(H) Fiberglass Tank and Pipe Institute 

Recommended Practice T–95–02, 

‘‘Remanufacturing of Fiberglass Reinforced 

Plastic (FRP) Underground Storage Tanks’’. 

(b) Repairs to fiberglass-reinforced 

plastic tanks may be made by the 

manufacturer’s authorized 

representatives or in accordance with a 

code of practice developed by a 

nationally recognized association or an 

independent testing laboratory. 

(c) Metal pipe sections and fittings 

that have released product as a result of 

corrosion or other damage must be 

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replaced. Non-corrodible pipes and 

fittings may be repaired in accordance 

with the manufacturer’s specifications. 

(d) Repaired tanks and piping must be 

tightness tested in accordance with 

§ 280.43(c) and § 280.44(b) within 30 

days following the date of the 

completion of the repair except as 

provided in paragraphs (d)(1) through 

(4), of this section: 

(1) The repaired tank is internally 

inspected in accordance with a code of 

practice developed by a nationally 

recognized association or an 

independent testing laboratory; or 

(2) The repaired portion of the UST 

system is monitored monthly for 

releases in accordance with a method 

specified in § 280.43(d) through (i); 

(3) UST systems with secondary 

containment must be tested as specified 

in § 280.36 within 30 days following the 

completion of any repair. Tanks using 

interstitial sensors must be tested using 

a vacuum, pressure, or liquid method in 

accordance with one of the criteria 

listed in § 280.36(a)(1)(ii) following any 

repair; or 

(4) Another test method is used that 

is determined by the implementing 

agency to be no less protective of human 

health and the environment than those 

listed above. 

(e) Within 6 months following the 

repair of any cathodically protected 

UST system, the cathodic protection 

system must be tested in accordance 

with § 280.31(b) and (c) to ensure that 

it is operating properly. 

(f) Within 30 days following any 

repair to spill or overfill prevention 

equipment, the repaired spill or overfill 

prevention equipment must be tested in 

accordance with § 280.35 to ensure it is 

operating properly. 

(g) UST system owners and operators 

must maintain records (in accordance 

with § 280.34) of each repair until the 

UST system is permanently closed or 

undergoes a change-in-service pursuant 

to § 280.71. 

10. Revise § 280.34 to read as follows: 

§ 280.34 Reporting and recordkeeping. 

Owners and operators of UST systems 

must cooperate fully with inspections, 

monitoring and testing conducted by the 

implementing agency, as well as 

requests for document submission, 

testing, and monitoring by the owner or 

operator pursuant to section 9005 of 

Subtitle I of the Solid Waste Disposal 

Act, as amended. 

(a) Reporting. Owners and operators 

must submit the following information 

to the implementing agency: 

(1) Notification for all UST systems 

(§ 280.22), which includes certification 

of installation for new UST systems 

(§ 280.20(e)) and notification when any 

person assumes ownership of an UST 

system (§ 280.22(b)); 

(2) Reports of all releases including 

suspected releases (§ 280.50), spills and 

overfills (§ 280.53), and confirmed 

releases (§ 280.61); 

(3) Corrective actions planned or 

taken including initial abatement 

measures (§ 280.62), initial site 

characterization (§ 280.63), free product 

removal (§ 280.64), investigation of soil 

and ground-water cleanup (§ 280.65), 

and corrective action plan (§ 280.66); 

and 

(4) A notification before permanent 

closure or change-in-service (§ 280.71). 

(b) Recordkeeping. Owners and 

operators must maintain the following 

information: 

(1) A corrosion expert’s analysis of 

site corrosion potential if corrosion 

protection equipment is not used 

(§ 280.20(a)(4); § 280.20(b)(3)). 

(2) Documentation of operation of 

corrosion protection equipment 

(§ 280.31(d)); 

(3) Documentation of compatibility 

for UST systems (§ 280.32(c)); 

(4) Records for all UST system 

equipment installed or replaced after 

[effective date of rule] (§ 280.32(c)); 

(5) Documentation of UST system 

repairs (§ 280.33(g)); 

(6) Documentation of compliance for 

spill and overfill prevention equipment 

(§ 280.35(c)); 

(7) Documentation of compliance for 

tanks, piping, and containment sumps 

using interstitial monitoring 

(§ 280.36(c)); 

(8) Documentation of periodic 

walkthrough inspections (§ 280.37(b)); 

(9) Recent compliance with release 

detection requirements (§ 280.45); 

(10) Results of the site investigation 

conducted at permanent closure 

(§ 280.74); and 

(11) Documentation of operator 

training (§ 280.245). 

(c) Availability and Maintenance of 

Records. Owners and operators must 

keep the records required either: 

(1) At the UST site and immediately 

available for inspection by the 

implementing agency; or 

(2) At a readily available alternative 

site and be provided for inspection to 

the implementing agency upon request. 

(3) In the case of permanent closure 

records required under § 280.74, owners 

and operators are also provided with the 

additional alternative of mailing closure 

records to the implementing agency if 

they cannot be kept at the site or an 

alternative site as indicated above. 

11. Add § 280.35 to Subpart C to read 

as follows: 

§ 280.35 Periodic testing of spill and 

overfill prevention equipment. 

(a) Owners and operators of UST 

systems with spill and overfill 

prevention equipment must meet the 

following requirements to ensure the 

equipment is operating properly and 

will prevent releases to the 

environment: 

(1) Spill prevention equipment (such 

as a catchment basin, spill bucket, or 

other spill containment device) must 

prevent releases to the environment by 

meeting one of the following: 

(i) The spill prevention equipment 

has two walls and the space between the 

walls is monitored continuously to 

ensure the integrity of the inner and 

outer walls is maintained; or 

(ii) The spill prevention equipment is 

tested at installation and at least once 

every 12 months to ensure the spill 

prevention equipment is liquid tight by 

using vacuum, pressure, or liquid 

testing in accordance with one of the 

following criteria: 

(A) Requirements developed by the 

manufacturer (Note: Owners and 

operators may use this option only if the 

manufacturer has developed testing 

requirements); 

(B) Code of practice developed by a 

nationally recognized association or 

independent testing laboratory; or 

(C) Requirements determined by the 

implementing agency to be no less 

protective of human health and the 

environment than the requirements 

listed in paragraphs (a)(1)(ii)(A) and (B) 

of this section; and 

(2) Overfill prevention equipment 

must be tested at installation and at 

least once every three years. At a 

minimum, testing must ensure that 

overfill prevention equipment is set to 

activate at the correct level specified in 

§ 280.20(c) and will activate when 

regulated substance reaches that level. 

Testing must be conducted in 

accordance with one of the criteria in 

paragraph (a)(1)(ii) of this section. 

(b) Owners and operators must begin 

meeting these requirements as follows: 

(1) For UST systems in use on or 

before [Effective date of rule]: 

(i) Not later than [One year after 

effective date of rule] for spill 

prevention equipment; and 

(ii) For overfill prevention equipment, 

not later than the phase-in schedule in 

the following table: 

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PHASE-IN SCHEDULE FOR OVERFILL PREVENTION EQUIPMENT TESTING

Criteria Date by which first test must be 

conducted 

One or more USTs at the facility were installed on or before 12/22/1988 ..................................... [1 year after effective date of rule]. 

No USTs at the facility were installed on or before 12/22/1988 and at least one UST at the facility was installed on or before 12/22/1998.[2 years after effective date of rule]. 

All USTs at the facility were installed after 12/22/1998 ................................................................... [3 years after effective date of rule]. 

(2) For UST systems brought into use 

after [Effective date of rule], these 

requirements apply at installation. 

(c) Owners and operators must 

maintain the following records (in 

accordance with § 280.34) for spill and 

overfill prevention equipment: 

(1) All records of spill prevention 

equipment testing and overfill 

prevention equipment testing must be 

maintained for three years; and 

(2) For spill prevention equipment not 

tested every 12 months, documentation 

showing that the spill prevention 

equipment has two walls and is 

monitored continuously. Owners and 

operators must maintain this 

documentation for as long as the spill 

prevention equipment is monitored 

continuously, and for three additional 

years after continuous monitoring ends. 

12. Add § 280.36 to Subpart C to read 

as follows: 

§ 280.36 Periodic testing of secondary 

containment. 

(a) Owners and operators of UST 

systems with secondary containment 

using interstitial monitoring must 

ensure the integrity of all interstitial 

areas (including all containment sumps 

used for interstitial monitoring). 

(1) Tanks must meet one of the 

following: 

(i) The interstitial space is 

continuously monitored; or 

(ii) The interstitial space is not 

continuously monitored and the 

integrity of the interstitial space is 

ensured at least once every three years 

by using vacuum, pressure, or liquid 

testing in accordance with one of the 

following criteria: 

(A) Requirements developed by the 

manufacturer (Note: Owners and 

operators may use this option only if the 

manufacturer has developed integrity 

testing requirements); 

(B) Code of practice developed by a 

nationally recognized association or 

independent testing laboratory; or 

(C) Requirements determined by the 

implementing agency to be no less 

protective of human health and the 

environment than the requirements 

listed in paragraphs (a)(1)(ii)(A) and (B) 

of this section; 

(2) Piping must meet one of the 

following: 

(i) The interstitial space is 

continuously monitored using vacuum, 

pressure, or a liquid-filled interstitial 

space; or 

(ii) The interstitial space is monitored 

using an interstitial monitoring method 

not listed in paragraph (a)(2)(i) of this 

section and the integrity of the 

interstitial space is ensured at least once 

every three years by using vacuum, 

pressure, or liquid testing in accordance 

with one of the criteria listed in 

paragraph (a)(1)(ii) of this section; and 

(3) Containment sumps must meet 

one of the following: 

(i) The containment sump has two 

walls and the space between the walls 

is continuously monitored; or 

(ii) The containment sump is tested at 

least every three years to ensure the 

containment sump is liquid tight by 

using vacuum, pressure, or liquid 

testing in accordance with one of the 

criteria listed in paragraph (a)(1)(ii) of 

this section. 

Note to paragraphs (a)(1)(ii), (a)(2)(ii), and 

(a)(3)(ii): The following codes of practice may 

be used to comply with paragraphs (a)(1)(ii), 

(a)(2)(ii), and (a)(3)(ii) of this section: 

(A) Steel Tank Institute Recommended 

Practice R012, ‘‘Recommended Practice for 

Interstitial Tightness Testing of Existing 

Underground Double Wall Steel Tanks’’; or 

(B) Fiberglass Tank and Pipe Institute 

Protocol, ‘‘Field Test Protocol for Testing the 

Annular Space of Installed Underground 

Fiberglass Double and Triple-Wall Tanks 

with Dry Annular Space’’. 

(b) Owners and operators of UST 

systems using interstitial monitoring 

must begin meeting this requirement as 

follows: 

(1) For UST systems in use on or 

before [Effective date of rule], not later 

than the phase-in schedule in the 

following table: 

PHASE-IN SCHEDULE FOR INTERSTITIAL AREA TESTING

Criteria Date by which first test must be 

conducted 

One or more USTs at the facility were installed on or before 12/22/1988 ..................................... [1 year after effective date of rule]. 

No USTs at the facility were installed on or before 12/22/1988 and at least one UST at the facility was installed on or before 12/22/1998.[2 years after effective date of rule]. 

All USTs at the facility were installed after 12/22/1998 ................................................................... [3 years after effective date of rule]. 

(2) For UST systems brought into use 

after [Effective date of rule], these 

requirements apply at installation. 

(c) Owners and operators must 

maintain the following records (in 

accordance with § 280.34) for the time 

frames indicated for each tank, piping, 

and containment sump that uses 

interstitial monitoring: 

(1) Records of interstitial space testing 

must be maintained for three years; or 

(2) As appropriate, records 

demonstrating: the tank is using 

continuous interstitial monitoring; the 

piping is using continuous interstitial 

monitoring with vacuum, pressure, 

liquid-filled interstitial space; and the 

containment sump has two walls and 

uses continuous interstitial monitoring. 

Owners and operators must maintain 

these records for as long as the tank, 

piping, or containment sump uses one 

of these continuous methods of 

interstitial monitoring, and for three 

additional years after continuous 

monitoring ends. 

13. Add § 280.37 to Subpart C to read 

as follows: 

§ 280.37 Periodic operation and 

maintenance walkthrough inspections. 

(a) To properly operate and maintain 

UST systems, owners and operators 

must meet one of the following: 

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71770 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

(1) Conduct a walkthrough inspection 

at least once every 30 days that, at a 

minimum and as appropriate to the 

facility, checks the following equipment 

as specified: 

(i) Spill prevention equipment—open 

and visually check for any damage; 

remove any liquid or debris; check each 

fill cap to make sure it is securely on the 

fill pipe; and for spill prevention 

equipment with continuous interstitial 

monitoring, check for a leak in the 

interstitial area, 

(ii) Sumps—open and visually check 

for any damage, leaks to the 

containment area, or releases to the 

environment; remove any liquid (in 

contained sumps) or debris; and for 

sumps with continuous interstitial 

monitoring, check for a leak in the 

interstitial area, 

(iii) Dispenser cabinets—open and 

visually check for any damage, leaks to 

the containment area, or releases to the 

environment; remove any liquid (in 

dispensers with under-dispenser 

containment) or debris; and for underdispenser containment with continuous 

interstitial monitoring, check for a leak 

in the interstitial area, 

(iv) Monitoring/observation wells— 

check covers to make sure they are 

secured, 

(v) Cathodic protection—check to 

make sure impressed current cathodic 

protection rectifiers are on and 

operating; and ensure records of three 

year cathodic protection testing and 60 

day impressed current system 

inspections are reviewed and current, 

and 

(vi) Release detection systems—check 

to make sure the release detection 

system is on and operating with no 

alarms or other unusual operating 

conditions present; check any devices 

such as tank gauge sticks, groundwater 

bailers, and hand-held vapor monitoring 

devices for operability and 

serviceability; and ensure records of 

release detection testing are reviewed 

monthly and current; or 

(2) Conduct operation and 

maintenance walkthrough inspections at 

least once every 30 days according to a 

standard code of practice developed by 

a nationally recognized association or 

independent testing laboratory that are 

comparable to (a)(1) of this section; or 

(3) Conduct operation and 

maintenance walkthrough inspections 

developed by the implementing agency 

that are comparable to paragraph (a)(1) 

of this section. 

(b) Owners and operators must 

maintain records (in accordance with 

§ 280.34) of operation and maintenance 

walkthrough inspections for one year. 

The record must include a listing of 

each area checked, whether each area 

checked was acceptable or needed to 

have any action taken, and a description 

of any actions taken to correct an issue. 

Note to paragraph (a)(2): The following 

code of practice may be used to comply with 

paragraph (a)(2) of this section: 

(A) Petroleum Equipment Institute 

Recommended Practice RP 900, 

‘‘Recommended Practices for the Inspection 

and Maintenance of UST Systems’’. 

14. Revise Subpart D to read as 

follows: 

Subpart D—Release Detection 

Sec. 

280.40 General requirements for all UST 

systems. 

280.41 Requirements for petroleum UST 

systems. 

280.42 Requirements for hazardous 

substance UST systems. 

280.43 Methods of release detection for 

tanks. 

280.44 Methods of release detection for 

piping. 

280.45 Release detection recordkeeping. 

280.46 Alternative methods of release 

detection for field-constructed tanks. 

280.47 Alternative methods of release 

detection for bulk piping. 

Subpart D—Release Detection 

§ 280.40 General requirements for all UST 

systems. 

(a) Owners and operators of UST 

systems must provide a method, or 

combination of methods, of release 

detection that: 

(1) Can detect a release from any 

portion of the tank and the connected 

underground piping that routinely 

contains product; 

(2) Is installed and calibrated in 

accordance with the manufacturer’s 

instructions; 

(3) Beginning on [One year after 

effective date of rule], is operated and 

maintained, and electronic and 

mechanical components are tested for 

proper operation, in accordance with 

one of the following: Manufacturer’s 

instructions; a code of practice 

developed by a nationally recognized 

association or independent testing 

laboratory; or requirements developed 

by the implementing agency. A test of 

the proper operation must be performed 

at least annually and, at a minimum and 

as applicable to the facility, cover the 

following components and criteria: 

(i) Automatic tank gauge and other 

controllers: Test alarm; verify system 

configuration; test battery backup; 

(ii) Probes and sensors: Inspect for 

residual buildup, ensure floats move 

freely; ensure shaft is not damaged; 

ensure cables are free of kinks, bends, 

and breaks; test alarm operability and 

communication with controller; 

(iii) Line leak detector: Test operation 

to meet criteria in § 280.44(a) by 

simulating a leak; inspect leak sensing 

o-ring; and 

(iv) Vacuum pumps and pressure 

gauges: Ensure proper communication 

with sensors and controller. 

(4) Meets the performance 

requirements in § 280.43, § 280.44, 

§ 280.46, or § 280.47, as applicable, with 

any performance claims and their 

manner of determination described in 

writing by the equipment manufacturer 

or installer. In addition, the methods 

listed in § 280.43(b); § 280.43(c); 

§ 280.43(d); § 280.43(h); 

§ 280.43(i);§ 280.44(a); § 280.44(b); 

§ 280.46; and § 280.47, must be capable 

of detecting the leak rate or quantity 

specified for that method in the 

corresponding section of the rule with a 

probability of detection of 0.95 and a 

probability of false alarm of 0.05. 

(b) When a release detection method 

operated in accordance with the 

performance standards in § 280.43, 

§ 280.44, § 280.46, or § 280.47 indicates 

a release may have occurred, owners 

and operators must notify the 

implementing agency in accordance 

with subpart E. 

(c) Owners and operators of Airport 

hydrant fuel distribution systems, UST 

systems with field-constructed tanks, 

and wastewater treatment tank systems 

must comply with the release detection 

requirements of this Subpart according 

to the following table: 

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SCHEDULE FOR PHASE-IN OF RELEASE DETECTION FOR AIRPORT HYDRANT FUEL DISTRIBUTION SYSTEMS, UST SYSTEMS

WITH FIELD-CONSTRUCTED TANKS, AND WASTEWATER TREATMENT TANK SYSTEMS

Type of UST system Time frame (after [effective date of rule]) Description of requirement 

Bulk piping associated with airport hydrant fuel 

distribution systems and field-constructed 

tanks using § 280.47(a) for piping release detection.

Within three years ............................................

Between years three and six ...........................

Conduct one bulk piping tightness test according to § 280.47(a) using the maximum 

detectable leak rates for semiannual testing. For bulk piping segments not capable 

of meeting the up to 3.0 gallon per hour 

leak rate, owners and operators may use a 

leak rate of up to 6.0 gallons per hour. 

Between years six and seven .......................... Conduct one bulk piping tightness test according to § 280.47(a) using the maximum 

detectable leak rates for semiannual testing. 

After year seven ............................................... Conduct bulk piping tightness testing according to § 280.47(a). 

Bulk piping associated with airport hydrant fuel 

distribution systems and field-constructed 

tanks not using § 280.47(a) for piping release 

detection.

Within three years ............................................ Perform release detection according to this 

subpart. 

Underground tanks associated with hydrant fuel 

distribution systems and field-constructed 

tanks.

Within three years ............................................ Perform release detection according to this 

subpart. 

Wastewater treatment tank systems .................. Within three years ............................................ Perform release detection according to this 

subpart. 

(d) Any UST system that cannot apply 

a method of release detection that 

complies with the requirements of this 

subpart must complete the closure 

procedures in subpart G. For previously 

deferred UST systems described in 

subpart A, this requirement applies after 

the effective date for subpart D 

described in § 280.10(a)(1). 

§ 280.41 Requirements for petroleum UST 

systems. 

Owners and operators of petroleum 

UST systems must provide release 

detection for tanks and piping as 

follows: 

(a) Tanks. Tanks must be monitored 

for releases as follows: 

(1) Tanks installed on or before 

[effective date of rule] must be 

monitored for releases at least every 30 

days using one of the methods listed in 

§ 280.43(d) through (i) except that: 

(i) UST systems that meet the 

performance standards in § 280.20 or 

§ 280.21, and the monthly inventory 

control requirements in § 280.43(a) or 

(b), may use tank tightness testing 

(conducted in accordance with 

§ 280.43(c)) at least every 5 years until 

10 years after the tank was installed or 

upgraded under § 280.21(b), whichever 

is later; 

(ii) Tanks with capacity of 550 gallons 

or less and tanks with a capacity of 551 

to 1,000 gallons that meet the tank 

diameter criteria in § 280.43(b) may use 

manual tank gauging (conducted in 

accordance with § 280.43(b)); 

(iii) Field-constructed tanks greater 

than 50,000 gallons may use the 

alternative release detection 

requirements in § 280.46; and 

(iv) Tanks using § 280.43(e) or 

§ 280.43(f) to monitor for releases, must 

begin using one of the methods listed in 

§ 280.43(d), (g), (h), or (i) not later than 

[Five years after effective date of rule]. 

(2) Tanks installed after [effective date 

of rule] must be monitored for releases 

at least every 30 days in accordance 

with § 280.43(g). 

(b) Piping. Underground piping that 

routinely contains regulated substances 

must be monitored for releases in a 

manner that meets one of the following 

requirements: 

(1) Piping installed on or before 

[effective date of rule] must meet one of 

the following: 

(i) Pressurized piping. Underground 

piping that conveys regulated 

substances under pressure must: 

(A) Be equipped with an automatic 

line leak detector conducted in 

accordance with § 280.44(a); and 

(B) Have an annual line tightness test 

conducted in accordance with 

§ 280.44(b) or have monthly monitoring 

conducted in accordance with 

§ 280.44(c). 

(ii) Suction piping. Underground 

piping that conveys regulated 

substances under suction must either 

have a line tightness test conducted at 

least every 3 years and in accordance 

with § 280.44(b), or use a monthly 

monitoring method conducted in 

accordance with § 280.44(c). No release 

detection is required for suction piping 

that is designed and constructed to meet 

the following standards: 

(A) The below-grade piping operates 

at less than atmospheric pressure; 

(B) The below-grade piping is sloped 

so that the contents of the pipe will 

drain back into the storage tank if the 

suction is released; 

(C) Only one check valve is included 

in each suction line; 

(D) The check valve is located directly 

below and as close as practical to the 

suction pump; and 

(E) A method is provided that allows 

compliance with paragraphs (b)(2)(ii)– 

(iv) of this section to be readily 

determined. 

(iii) Bulk piping. Underground piping 

associated with airport hydrant fuel 

distribution systems and fieldconstructed tanks must meet one of the 

following release detection 

requirements: 

(A) The requirements in paragraphs 

(b)(1)(i) or (ii) of this section; or 

(B) The alternative release detection 

requirements in § 280.47. 

(2) Piping installed or replaced after 

[effective date of rule] must meet one of 

the following: 

(i) Pressurized piping must be 

monitored for releases at least every 30 

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days in accordance with § 280.43(g) and 

be equipped with an automatic line leak 

detector in accordance with § 280.44(a). 

(ii) Suction piping must be monitored 

for releases at least every 30 days in 

accordance with § 280.43(g). No release 

detection is required for suction piping 

that meets paragraphs (b)(1)(ii)(A) 

through (E) of this section. 

(iii) Underground bulk piping 

associated with airport hydrant fuel 

distribution systems and fieldconstructed tanks must meet the 

requirements in paragraph (b)(1) of this 

section. 

§ 280.42 Requirements for hazardous 

substance UST systems. 

Owners and operators of hazardous 

substance UST systems must provide 

containment that meets the following 

requirements and monitor these systems 

using § 280.43(g) at least every 30 days: 

(a) Secondary containment systems 

must be designed, constructed and 

installed to: 

(1) Contain regulated substances 

leaked from the primary containment 

until they are detected and removed; 

(2) Prevent the release of regulated 

substances to the environment at any 

time during the operational life of the 

UST system; and 

(3) Be checked for evidence of a 

release at least every 30 days. 

Note to paragraph (a): The provisions of 40 

CFR 265.193, Containment and Detection of 

Releases, may be used to comply with these 

requirements for tanks installed on or before 

[effective date of rule]. 

(b) Double-walled tanks must be 

designed, constructed, and installed to: 

(1) Contain a release from any portion 

of the inner tank within the outer wall; 

and 

(2) Detect the failure of the inner wall. 

(c) External liners (including vaults) 

must be designed, constructed, and 

installed to: 

(1) Contain 100 percent of the 

capacity of the largest tank within its 

boundary; 

(2) Prevent the interference of 

precipitation or ground-water intrusion 

with the ability to contain or detect a 

release of regulated substances; and 

(3) Surround the tank completely (i.e., 

it is capable of preventing lateral as well 

as vertical migration of regulated 

substances). 

(d) Underground piping must be 

equipped with secondary containment 

that satisfies the requirements of this 

section (e.g., trench liners, doublewalled pipe). In addition, underground 

piping that conveys regulated 

substances under pressure must be 

equipped with an automatic line leak 

detector in accordance with § 280.44(a). 

(e) For hazardous substance UST 

systems installed on or before [Effective 

date of rule] other methods of release 

detection may be used if owners and 

operators: 

(1) Demonstrate to the implementing 

agency that an alternate method can 

detect a release of the stored substance 

as effectively as any of the methods 

allowed in §§ 280.43(b) through (i) can 

detect a release of petroleum; 

(2) Provide information to the 

implementing agency on effective 

corrective action technologies, health 

risks, and chemical and physical 

properties of the stored substance, and 

the characteristics of the UST site; and, 

(3) Obtain approval from the 

implementing agency to use the 

alternate release detection method 

before the installation and operation of 

the new UST system. 

§ 280.43 Methods of release detection for 

tanks. 

Each method of release detection for 

tanks used to meet the requirements of 

§ 280.41, except field-constructed tanks 

installed on or before [Effective date of 

rule] with capacities greater than 50,000 

gallons that meet § 280.46, must be 

conducted in accordance with the 

following: 

(a) Inventory control. Product 

inventory control (or another test of 

equivalent performance) must be 

conducted monthly to detect a release of 

at least 1.0 percent of flow-through plus 

130 gallons on a monthly basis in the 

following manner: 

(1) Inventory volume measurements 

for regulated substance inputs, 

withdrawals, and the amount still 

remaining in the tank are recorded each 

operating day; 

(2) The equipment used is capable of 

measuring the level of product over the 

full range of the tank’s height to the 

nearest one-eighth of an inch; 

(3) The regulated substance inputs are 

reconciled with delivery receipts by 

measurement of the tank inventory 

volume before and after delivery; 

(4) Deliveries are made through a drop 

tube that extends to within one foot of 

the tank bottom; 

(5) Product dispensing is metered and 

recorded within the local standards for 

meter calibration or an accuracy of 6 

cubic inches for every 5 gallons of 

product withdrawn; and 

(6) The measurement of any water 

level in the bottom of the tank is made 

to the nearest one-eighth of an inch at 

least once a month. 

Note to paragraph (a): Practices described 

in the American Petroleum Institute 

Recommended Practice RP 1621, ‘‘Bulk 

Liquid Stock Control at Retail Outlets’’ may 

be used, where applicable, as guidance in 

meeting the requirements of this paragraph. 

(b) Manual tank gauging. Manual tank 

gauging must meet the following 

requirements: 

(1) Tank liquid level measurements 

are taken at the beginning and ending of 

a period of at least 36 hours during 

which no liquid is added to or removed 

from the tank; 

(2) Level measurements are based on 

an average of two consecutive stick 

readings at both the beginning and 

ending of the period; 

(3) The equipment used is capable of 

measuring the level of product over the 

full range of the tank’s height to the 

nearest one-eighth of an inch; 

(4) A release is suspected and subject 

to the requirements of subpart E if the 

variation between beginning and ending 

measurements exceeds the weekly or 

monthly standards in the following 

table: 

Nominal tank capacity Minimum duration of test Weekly standard 

(one test) 

Monthly standard 

(four test average) 

550 gallons or less .................................................... 36 hours .......................... 10 gallons ........................ 5 gallons. 

551–1,000 gallons (when tank diameter is 64’’) ....... 44 hours .......................... 9 gallons .......................... 4 gallons. 

551–1,000 gallons (when tank diameter is 48’’) ....... 58 hours .......................... 12 gallons ........................ 6 gallons. 

551–1,000 gallons (also requires periodic tank tightness testing).36 hours .......................... 13 gallons ........................ 7 gallons. 

1,001–2,000 gallons (also requires periodic tank 

tightness testing).

36 hours .......................... 26 gallons ........................ 13 gallons. 

(5) Tanks of 550 gallons or less 

nominal capacity and tanks with a 

nominal capacity of 551 to 1,000 gallons 

that meet the tank diameter criteria in 

the table in paragraph (b)(4) of this 

section may use this as the sole method 

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of release detection. All other tanks with 

a nominal capacity of 551 to 2,000 

gallons may use the method in place of 

inventory control in § 280.43(a). Tanks 

of greater than 2,000 gallons nominal 

capacity may not use this method to 

meet the requirements of this Subpart. 

(c) Tank tightness testing. Tank 

tightness testing (or another test of 

equivalent performance) must be 

capable of detecting a 0.1 gallon per 

hour leak rate from any portion of the 

tank that routinely contains product 

while accounting for the effects of 

thermal expansion or contraction of the 

product, vapor pockets, tank 

deformation, evaporation or 

condensation, and the location of the 

water table. 

(d) Automatic tank gauging. 

Equipment for automatic tank gauging 

that tests for the loss of product and 

conducts inventory control must meet 

the following requirements: 

(1) The automatic product level 

monitor test can detect a 0.2 gallon per 

hour leak rate from any portion of the 

tank that routinely contains product; 

and 

(2) The test must be performed with 

the system operating in one of the 

following modes: 

(i) In-tank static testing conducted on 

a periodic basis; or 

(ii) Continuous in-tank leak detection 

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. 

(e) Vapor monitoring. Testing or 

monitoring for vapors within the soil 

gas of the excavation zone must meet 

the following requirements: 

(1) The materials used as backfill are 

sufficiently porous (e.g., gravel, sand, 

crushed rock) to readily allow diffusion 

of vapors from releases into the 

excavation area; 

(2) The stored regulated substance, or 

a tracer compound placed in the tank 

system, is sufficiently volatile (e.g., 

gasoline) to result in a vapor level that 

is detectable by the monitoring devices 

located in the excavation zone in the 

event of a release from the tank; 

(3) The measurement of vapors by the 

monitoring device is not rendered 

inoperative by the ground water, 

rainfall, or soil moisture or other known 

interferences so that a release could go 

undetected for more than 30 days; 

(4) The level of background 

contamination in the excavation zone 

will not interfere with the method used 

to detect releases from the tank; 

(5) The vapor monitors are designed 

and operated to detect any significant 

increase in concentration above 

background of the regulated substance 

stored in the tank system, a component 

or components of that substance, or a 

tracer compound placed in the tank 

system; 

(6) In the UST excavation zone, the 

site is assessed to ensure compliance 

with the requirements in paragraphs 

(e)(1) through (4) of this section and to 

establish the number and positioning of 

monitoring wells that will detect 

releases within the excavation zone 

from any portion of the tank that 

routinely contains product; and 

(7) Monitoring wells are clearly 

marked and secured to avoid 

unauthorized access and tampering. 

(f) Ground-water monitoring. Testing 

or monitoring for liquids on the ground 

water must meet the following 

requirements: 

(1) The regulated substance stored is 

immiscible in water and has a specific 

gravity of less than one; 

(2) Ground water is never more than 

20 feet from the ground surface and the 

hydraulic conductivity of the soil(s) 

between the UST system and the 

monitoring wells or devices is not less 

than 0.01 cm/sec (e.g., the soil should 

consist of gravels, coarse to medium 

sands, coarse silts or other permeable 

materials); 

(3) The slotted portion of the 

monitoring well casing must be 

designed to prevent migration of natural 

soils or filter pack into the well and to 

allow entry of regulated substance on 

the water table into the well under both 

high and low ground-water conditions; 

(4) Monitoring wells shall be sealed 

from the ground surface to the top of the 

filter pack; 

(5) Monitoring wells or devices 

intercept the excavation zone or are as 

close to it as is technically feasible; 

(6) The continuous monitoring 

devices or manual methods used can 

detect the presence of at least one-eighth 

of an inch of free product on top of the 

ground water in the monitoring wells; 

(7) Within and immediately below the 

UST system excavation zone, the site is 

assessed to ensure compliance with the 

requirements in paragraphs (f)(1) 

through (5) of this section and to 

establish the number and positioning of 

monitoring wells or devices that will 

detect releases from any portion of the 

tank that routinely contains product; 

and 

(8) Monitoring wells are clearly 

marked and secured to avoid 

unauthorized access and tampering. 

(g) Interstitial monitoring. Interstitial 

monitoring between the UST system 

and a secondary barrier immediately 

around or beneath it may be used, but 

only if the system is designed, 

constructed and installed to detect a 

leak from any portion of the tank that 

routinely contains product and also 

meets one of the following 

requirements: 

(1) For double-walled UST systems, 

the sampling or testing method can 

detect a release through the inner wall 

in any portion of the tank that routinely 

contains product; 

(2) For UST systems with a secondary 

barrier within the excavation zone, the 

sampling or testing method used can 

detect a release between the UST system 

and the secondary barrier; 

(i) The secondary barrier around or 

beneath the UST system consists of 

artificially constructed material that is 

sufficiently thick and impermeable (at 

least 10¥6 cm/sec for the regulated 

substance stored) to direct a release to 

the monitoring point and permit its 

detection; 

(ii) The barrier is compatible with the 

regulated substance stored so that a 

release from the UST system will not 

cause a deterioration of the barrier 

allowing a release to pass through 

undetected; 

(iii) For cathodically protected tanks, 

the secondary barrier must be installed 

so that it does not interfere with the 

proper operation of the cathodic 

protection system; 

(iv) The ground water, soil moisture, 

or rainfall will not render the testing or 

sampling method used inoperative so 

that a release could go undetected for 

more than 30 days; 

(v) The site is assessed to ensure that 

the secondary barrier is always above 

the ground water and not in a 25-year 

flood plain, unless the barrier and 

monitoring designs are for use under 

such conditions; and, 

(vi) Monitoring wells are clearly 

marked and secured to avoid 

unauthorized access and tampering. 

(3) For tanks with an internally fitted 

liner, an automated device can detect a 

release between the inner wall of the 

tank and the liner, and the liner is 

compatible with the substance stored. 

(4) For UST systems using continuous 

vacuum, pressure, or liquid-filled 

methods of interstitial monitoring, the 

method must be capable of detecting a 

breach in both the inner and outer walls 

of the tank and/or piping. 

(h) Statistical inventory 

reconciliation. Statistically based testing 

or monitoring methods must meet the 

following requirements: 

(1) Report a quantitative result with a 

calculated leak rate; 

(2) Be capable of detecting a leak rate 

of 0.2 gallon per hour; and 

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(3) Use a threshold that does not 

exceed one-half the minimum detectible 

leak rate. 

(i) Other methods. Any other type of 

release detection method, or 

combination of methods, can be used if: 

(1) It can detect a 0.2 gallon per hour 

leak rate or a release of 150 gallons 

within a month with a probability of 

detection of 0.95 and a probability of 

false alarm of 0.05; or 

(2) The implementing agency may 

approve another method if the owner 

and operator can demonstrate that the 

method can detect a release as 

effectively as any of the methods 

allowed in paragraphs (c) through (h) of 

this section. In comparing methods, the 

implementing agency shall consider the 

size of release that the method can 

detect and the frequency and reliability 

with which it can be detected. If the 

method is approved, the owner and 

operator must comply with any 

conditions imposed by the 

implementing agency on its use to 

ensure the protection of human health 

and the environment. 

§ 280.44 Methods of release detection for 

piping. 

Each method of release detection for 

piping used to meet the requirements of 

§ 280.41, except bulk piping that meets 

§ 280.47, must be conducted in 

accordance with the following: 

(a) Automatic line leak detectors. 

Methods which alert the operator to the 

presence of a leak by restricting or 

shutting off the flow of regulated 

substances through piping or triggering 

an audible or visual alarm may be used 

only if they detect leaks of 3 gallons per 

hour at 10 pounds per square inch line 

pressure within 1 hour. An annual test 

of the operation of the leak detector 

must be conducted in accordance with 

§ 280.40(a)(3). 

(b) Line tightness testing. A periodic 

test of piping may be conducted only if 

it can detect a 0.1 gallon per hour leak 

rate at one and one-half times the 

operating pressure. 

(c) Applicable tank methods. Except 

as described in § 280.41(a), any of the 

methods in § 280.43(e) through (i) may 

be used if they are designed to detect a 

release from any portion of the 

underground piping that routinely 

contains regulated substances. 

§ 280.45 Release detection recordkeeping. 

All UST system owners and operators 

must maintain records in accordance 

with § 280.34 demonstrating compliance 

with all applicable requirements of this 

subpart. These records must include the 

following: 

(a) All written performance claims 

pertaining to any release detection 

system used, and the manner in which 

these claims have been justified or 

tested by the equipment manufacturer 

or installer, must be maintained for 5 

years, or for another reasonable period 

of time determined by the implementing 

agency, from the date of installation; 

(b) The results of any sampling, 

testing, or monitoring must be 

maintained for at least 1 year, or for 

another reasonable period of time 

determined by the implementing 

agency, except as follows: 

(1) The results of annual operation 

tests conducted in accordance with 

§ 280.40(a)(3) must be maintained for 

three years. At a minimum, the results 

must list each component tested, 

indicate whether each component tested 

meets criteria in § 280.40(a)(3) or needs 

to have action taken, and describe any 

action taken to correct an issue; and 

(2) The results of tank tightness 

testing or bulk tank tightness testing 

conducted in accordance with 

§ 280.43(c) or § 280.46 must be retained 

until the next test is conducted; and 

(c) Written documentation of all 

calibration, maintenance, and repair of 

release detection equipment 

permanently located on-site must be 

maintained for at least one year after the 

servicing work is completed, or for 

another reasonable time period 

determined by the implementing 

agency. Any schedules of required 

calibration and maintenance provided 

by the release detection equipment 

manufacturer must be retained for 5 

years from the date of installation. 

§ 280.46 Alternative methods of release 

detection for field-constructed tanks. 

Owners and operators of fieldconstructed tanks with a capacity 

greater than 50,000 gallons may use one 

or a combination of the following 

alternative methods of release detection: 

(a) Conduct an annual bulk tank 

tightness test that can detect a 0.5 gallon 

per hour leak rate; 

(b) Use an automatic tank gauging 

system to perform release detection at 

least every 30 days that can detect a leak 

rate less than or equal to one gallon per 

hour. This method must be combined 

with a bulk tank tightness test that can 

detect a 0.2 gallon per hour leak rate 

performed at least every three years; 

(c) Use an automatic tank gauging 

system to perform release detection at 

least every 30 days that can detect a leak 

rate less than or equal to two gallons per 

hour. This method must be combined 

with a bulk tank tightness test that can 

detect a 0.2 gallon per hour leak rate 

performed at least every two years; or 

(d) Another method approved by the 

implementing agency if the owner and 

operator can demonstrate that the 

method can detect a release as 

effectively as any of the methods 

allowed in paragraphs (a) through (c) of 

this section. In comparing methods, the 

implementing agency shall consider the 

size of release that the method can 

detect and the frequency and reliability 

of detection. If the method is approved, 

the owner and operator must comply 

with any conditions imposed by the 

implementing agency on its use. 

§ 280.47 Alternative methods of release 

detection for bulk piping. 

Owners and operators of underground 

piping associated with airport hydrant 

fuel distribution systems and fieldconstructed tanks may use one or a 

combination of the following alternative 

methods of release detection: 

(a) Perform a semiannual or annual 

bulk line tightness test at or above 

operating pressure in accordance with 

the table below. Bulk piping segments 

≥100,000 gallons not capable of meeting 

the maximum 3.0 gallon per hour leak 

rate for the semiannual test may be 

tested at a leak rate up to 6.0 gallons per 

hour according to the schedule in 

§ 280.40(c): 

MAXIMUM DETECTABLE LEAK RATE PER TEST SECTION VOLUME

Test section volume 

(gallons) 

Semiannual test 

maximum detectable leak rate 

(gallons per hour) 

Annual test 

maximum detectable leak rate 

(gallons per hour) 

<50,000 ...................................................................................................................................................... 1.0 0 .5 

≥50,000 to <75,000 ................................................................................................................................... 1.5 0 .75 

≥75,000 to <100,000 ................................................................................................................................. 2.0 1 .0 

≥100,000 .................................................................................................................................................... 3.0 1 .5 

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(b) Perform continuous interstitial 

monitoring designed to detect a release 

from any portion of the underground 

piping that routinely contains product 

in accordance with § 280.43(g); 

(c) Use an automatic line leak detector 

that alerts the operator to the presence 

of a leak by restricting or shutting off 

flow of regulated substances through 

piping or triggering an audible or visual 

alarm. This method may be used only if 

it can detect a leak of three gallons per 

hour at 10 pounds per square inch line 

pressure within one hour or equivalent. 

When using this method, the following 

must also be met: 

(1) Perform interstitial monitoring, 

designed to detect a release from any 

portion of the underground piping that 

routinely contains product, in 

accordance with § 280.43(g) at least 

every three months; and 

(2) Conduct an annual test of the 

operation of the leak detector in 

accordance with § 280.40(a)(3); or 

(d) Another method approved by the 

implementing agency if the owner and 

operator can demonstrate that the 

method can detect a release as 

effectively as any of the methods 

allowed in paragraphs (a) through (c) of 

this section. In comparing methods, the 

implementing agency shall consider the 

size of release that the method can 

detect and the frequency and reliability 

of detection. If the method is approved, 

the owner and operator must comply 

with any conditions imposed by the 

implementing agency on its use. 

15. In § 280.50 revise paragraphs (b) 

and (c) to read as follows: 

§ 280.50 Reporting of suspected releases. 

* * * * * 

(b) Unusual operating conditions 

observed by owners and operators (such 

as the erratic behavior of product 

dispensing equipment, the sudden loss 

of product from the UST system, an 

unexplained presence of water in the 

tank, or water or product in the 

interstitial space of secondarily 

contained systems), unless system 

equipment is found to be defective but 

not leaking, and is immediately repaired 

or replaced. 

(c) Monitoring results, including 

alarms, from a release detection method 

required under § 280.41 and § 280.42 

that indicate a release may have 

occurred unless: 

(1) The monitoring device is found to 

be defective, and is immediately 

repaired, recalibrated or replaced, and 

additional monitoring does not confirm 

the initial result; or 

(2) In the case of inventory control, a 

second month of data does not confirm 

the initial result. 

16. In § 280.52 revise paragraph (a) to 

read as follows: 

§ 280.52 Release investigation and 

confirmation steps. 

* * * * * 

(a) System test. Owners and operators 

must conduct tests (according to the 

requirements for tightness testing in 

§ 280.43(c) and § 280.44(b) or, for UST 

systems with secondary containment 

and interstitial monitoring, the integrity 

testing specified in § 280.36) that 

determine whether a leak exists in that 

portion of the tank that routinely 

contains product, the attached delivery 

piping, or a breach of the interstitial 

space. 

(1) If the system test confirms a leak, 

owners and operators must repair, 

replace, upgrade, or close the UST 

system. In addition, owners and 

operators must begin corrective action 

in accordance with subpart F if the test 

results for the system, tank, or delivery 

piping indicate that a release exists. 

(2) Further investigation is not 

required if the test results for the 

system, tank, and delivery piping do not 

indicate that a release exists and if 

environmental contamination is not the 

basis for suspecting a release. 

(3) Owners and operators must 

conduct a site check as described in 

paragraph (b) of this section if the test 

results for the system, tank, and delivery 

piping do not indicate that a release 

exists but environmental contamination 

is the basis for suspecting a release. 

* * * * * 

17. In § 280.71 revise the Note at the 

end of the section to read as follows: 

§ 280.71 Permanent closure and changesin-service. 

* * * * * 

[Note: The following cleaning and closure 

procedures may be used to comply with this 

section: 

(A) American Petroleum Institute 

Recommended Practice RP 1604, ‘‘Closure of 

Underground Petroleum Storage Tanks’’; 

(B) American Petroleum Institute Standard 

2015, ‘‘Requirements for Safe Entry and 

Cleaning of Petroleum Storage Tanks’’; 

(C) American Petroleum Institute 

Recommended Practice 2016, ‘‘Guidelines 

and Procedures for Entering and Cleaning 

Petroleum Storage Tanks’’; 

(D) American Petroleum Institute 

Recommended Practice RP 1631, ‘‘Interior 

Lining and Periodic Inspection of 

Underground Storage Tanks,’’ may be used as 

guidance for compliance with this section; 

(E) National Fire Protection Association 

Standard 326, ‘‘Safeguarding of Tanks and 

Containers for Entry, Cleaning, or Repair’’; 

and 

(F) The National Institute for Occupational 

Safety and Health Publication 80–106, 

‘‘Criteria for a Recommended Standard * * * 

Working in Confined Space’’ may be used as 

guidance for conducting safe closure 

procedures at some hazardous substance 

tanks.] 

* * * * * 

18. Revise § 280.90 to read as follows: 

§ 280.90 Applicability. 

(a) This subpart applies to owners and 

operators of all petroleum underground 

storage tank (UST) systems except as 

otherwise provided in this section. 

(b) Owners and operators of 

petroleum UST systems are subject to 

these requirements in accordance with 

§ 280.91. 

(c) State and Federal government 

entities whose debts and liabilities are 

the debts and liabilities of a state or the 

United States are exempt from the 

requirements of this subpart. 

(d) The requirements of this subpart 

do not apply to owners and operators of 

any UST system described in § 280.10 

(b), (c)(2) or (c)(3). 

(e) If the owner and operator of a 

petroleum underground storage tank are 

separate persons, only one person is 

required to demonstrate financial 

responsibility; however, both parties are 

liable in event of noncompliance. 

19. Revise § 280.91 to read as follows: 

§ 280.91 Compliance dates. 

Owners of petroleum underground 

storage tanks must comply with the 

requirements of this subpart. Previously 

deferred UST systems must comply 

with the requirements of this subpart 

according to the schedule in § 280.10. 

20. In § 280.92 revise the definitions 

‘‘Accidental release,’’ ‘‘Financial 

reporting year,’’ and ‘‘Provider of 

financial assurance’’ to read as follows: 

§ 280.92 Definition of terms. 

* * * * * 

Accidental release means any sudden 

or nonsudden release of petroleum 

arising from operating an underground 

storage tank that results in a need for 

corrective action and/or compensation 

for bodily injury or property damage 

neither expected nor intended by the 

tank owner or operator. 

* * * * * 

Financial reporting year means the 

latest consecutive twelve-month period 

for which any of the following reports 

used to support a financial test is 

prepared: 

(1) a 10–K report submitted to the 

SEC; 

(2) an annual report of tangible net 

worth submitted to Dun and Bradstreet; 

or 

(3) annual reports submitted to the 

Energy Information Administration or 

the Rural Utilities Service. 

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‘‘Financial reporting year’’ may thus 

comprise a fiscal or a calendar year 

period. 

* * * * * 

Provider of financial assurance means 

an entity that provides financial 

assurance to an owner or operator of an 

underground storage tank through one 

of the mechanisms listed in §§ 280.95– 

280.107, including a guarantor, insurer, 

risk retention group, surety, issuer of a 

letter of credit, issuer of a state-required 

mechanism, or a state. 

* * * * * 

21. Revise § 280.94 paragraph (a)(1) to 

read as follows: 

§ 280.94 Allowable mechanisms and 

combinations of mechanisms. 

(a) * * * 

(1) An owner or operator, including a 

local government owner or operator, 

may use any one or combination of the 

mechanisms listed in §§ 280.95 through 

280.107 to demonstrate financial 

responsibility under this subpart for one 

or more underground storage tanks; and 

* * * * * 

22. In § 280.95 revise paragraph 

s(b)(1)(ii), (b)(4)(i), (c)(5) introductory 

text, (c)(5)(i) and (d) to read as follows: 

§ 280.95 Financial test of self-insurance. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) The sum of the corrective action 

cost estimates, the current closure and 

post-closure care cost estimates, and 

amount of liability coverage for which a 

financial test is used to demonstrate 

financial responsibility to EPA under 40 

CFR 264.101, 264.143, 264.145, 265.143, 

265.145, 264.147, and 265.147 or to a 

state implementing agency under a state 

program authorized by EPA under 40 

CFR part 271; and 

(4) * * * 

(i) File financial statements annually 

with the U.S. Securities and Exchange 

Commission, the Energy Information 

Administration, or the Rural Utilities 

Service; or 

* * * * * 

(c) * * * 

(5) If the financial statements of the 

owner or operator, and/or guarantor, are 

not submitted annually to the U.S. 

Securities and Exchange Commission, 

the Energy Information Administration 

or the Rural Utilities Service, the owner 

or operator, and/or guarantor, must 

obtain a special report by an 

independent certified public accountant 

stating that: 

(i) He has compared the data that the 

letter from the chief financial officer 

specifies as having been derived from 

the latest year-end financial statements 

of the owner or operator, and/or 

guarantor, with the amounts in such 

financial statements; and 

* * * * * 

(d) To demonstrate that it meets the 

financial test under paragraph (b) or (c) 

of this section, the chief financial officer 

of the owner or operator, or guarantor, 

must sign, within 120 days of the close 

of each financial reporting year, as 

defined by the twelve-month period for 

which financial statements used to 

support the financial test are prepared, 

a letter worded exactly as follows, 

except that the instructions in brackets 

are to be replaced by the relevant 

information and the brackets deleted: 

Letter from Chief Financial Officer 

I am the chief financial officer of [insert: 

name and address of the owner or operator, 

or guarantor]. This letter is in support of the 

use of [insert: ‘‘the financial test of selfinsurance,’’ and/or ‘‘guarantee’’] to 

demonstrate financial responsibility for 

[insert: ‘‘taking corrective action’’ and/or 

‘‘compensating third parties for bodily injury 

and property damage’’] caused by [insert: 

‘‘sudden accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental releases’’] 

in the amount of at least [insert: dollar 

amount] per occurrence and [insert: dollar 

amount] annual aggregate arising from 

operating (an) underground storage tank(s). 

Underground storage tanks at the following 

facilities are assured by this financial test or 

a financial test under an authorized State 

program by this [insert: ‘‘owner or operator,’’ 

and/or ‘‘guarantor’’]: [List for each facility: 

the name and address of the facility where 

tanks assured by this financial test are 

located, and whether tanks are assured by 

this financial test or a financial test under a 

State program approved under 40 CFR part 

281. If separate mechanisms or combinations 

of mechanisms are being used to assure any 

of the tanks at this facility, list each tank 

assured by this financial test or a financial 

test under a State program authorized under 

40 CFR part 281 by the tank identification 

number provided in the notification 

submitted pursuant to 40 CFR 280.22 or the 

corresponding State requirements.] 

A [insert: ‘‘financial test,’’ and/or 

‘‘guarantee’’] is also used by this [insert: 

‘‘owner or operator,’’ or ‘‘guarantor’’] to 

demonstrate evidence of financial 

responsibility in the following amounts 

under other EPA regulations or state 

programs authorized by EPA under 40 CFR 

parts 271 and 145: 

EPA Regulations Amount 

Closure (§§ 264.143 and 265.143) $lll 

Post-Closure Care (§§ 264.145 and 

265.145).

$lll 

Liability Coverage (§§ 264.147 and 

265.147).

$lll 

Corrective Action (§§ 264.101(b)) .. $lll 

Plugging and Abandonment 

(§ 144.63).

$lll 

Closure ........................................... $lll 

Post-Closure Care .......................... $lll 

Liability Coverage ........................... $lll 

Corrective Action ............................ $lll 

Plugging and Abandonment ........... $lll 

Total ........................................ $lll 

This [insert: ‘‘owner or operator,’’ or 

‘‘guarantor’’] has not received an adverse 

opinion, a disclaimer of opinion, or a ‘‘going 

concern’’ qualification from an independent 

auditor on his financial statements for the 

latest completed fiscal year. 

[Fill in the information for Alternative I if 

the criteria of paragraph (b) of § 280.95 are 

being used to demonstrate compliance with 

the financial test requirements. Fill in the 

information for Alternative II if the criteria of 

paragraph (c) of § 280.95 are being used to 

demonstrate compliance with the financial 

test requirements.] 

Alternative I 

1. Amount of annual UST aggregate coverage being assured by a financial test, and/or guarantee ......................................................... $lll 

2. Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs covered 

by a financial test, and/or guarantee.

$lll 

3. Sum of lines 1 and 2 ................................................................................................................................................................................. $lll 

4. Total tangible assets ................................................................................................................................................................................. $lll 

5. Total liabilities [if any of the amount reported on line 3 is included in total liabilities, you may deduct that amount from this line and 

add that amount to line 6].

$lll 

6. Tangible net worth [subtract line 5 from line 4] ........................................................................................................................................ $lll 

Yes / No 

7. Is line 6 at least $10 million? .................................................................................................................................................................... lll 

8. Is line 6 at least 10 times line 3? .............................................................................................................................................................. lll 

9. Have financial statements for the latest fiscal year been filed with the Securities and Exchange Commission? lll 

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10. Have financial statements for the latest fiscal year been filed with the Energy Information Administration? lll 

11. Have financial statements for the latest fiscal year been filed with the Rural Utilities Service? lll 

12. Has financial information been provided to Dun and Bradstreet, and has Dun and Bradstreet provided a financial strength rating of 

4A or 5A? [Answer ‘‘Yes’’ only if both criteria have been met.] 

lll 

Alternative II 

1. Amount of annual UST aggregate coverage being assured by a test, and/or guarantee ....................................................................... $lll 

2. Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs covered 

by a financial test, and/or guarantee.

$lll 

3. Sum of lines 1 and 2 ................................................................................................................................................................................. $lll 

4. Total tangible assets ................................................................................................................................................................................. $lll 

5. Total liabilities [if any of the amount reported on line 3 is included in total liabilities, you may deduct that amount from this line and 

add that amount to line 6].

$lll 

6. Tangible net worth [subtract line 5 from line 4] ........................................................................................................................................ $lll 

7. Total assets in the U.S. [required only if less than 90 percent of assets are located in the U.S.] $lll 

Yes / No 

8. Is line 6 at least $10 million? .................................................................................................................................................................... lll 

9. Is line 6 at least 6 times line 3? ................................................................................................................................................................ lll 

10. Are at least 90 percent of assets located in the U.S.? [If ‘‘No,’’ complete line 11.] .............................................................................. lll 

11. Is line 7 at least 6 times line 3? [Fill in either lines 12–15 or lines 16–18:] ........................................................................................... lll 

12. Current assets ......................................................................................................................................................................................... $lll 

13. Current liabilities ...................................................................................................................................................................................... $lll 

14. Net working capital [subtract line 13 from line 12] ................................................................................................................................. $lll 

15. Is line 14 at least 6 times line 3? ............................................................................................................................................................ lll 

16. Current bond rating of most recent bond issue ...................................................................................................................................... lll 

17. Name of rating service ............................................................................................................................................................................ lll 

18. Date of maturity of bond ......................................................................................................................................................................... lll 

19. Have financial statements for the latest fiscal year been filed with the SEC, the Energy Information Administration, or the Rural 

Utilities Service? 

lll 

[If ‘‘No,’’ please attach a report from an 

independent certified public accountant 

certifying that there are no material 

differences between the data as reported in 

lines 4–18 above and the financial statements 

for the latest fiscal year.] 

[For both Alternative I and Alternative II 

complete the certification with this 

statement.] 

I hereby certify that the wording of this 

letter is identical to the wording specified in 

40 CFR part 280.95(d) as such regulations 

were constituted on the date shown 

immediately below. 

[Signature] 

[Name] 

[Title] 

[Date] 

* * * * * 

23. In § 280.96 revise paragraphs (b), 

(c)(3), and (d) to read as follows: 

§ 280.96 Guarantee. 

* * * * * 

(b) Within 120 days of the close of 

each financial reporting year the 

guarantor must demonstrate that it 

meets the financial test criteria of 

§ 280.95 based on year-end financial 

statements for the latest completed 

financial reporting year by completing 

the letter from the chief financial officer 

described in § 280.95(d) and must 

deliver the letter to the owner or 

operator. If the guarantor fails to meet 

the requirements of the financial test at 

the end of any financial reporting year, 

within 120 days of the end of that 

financial reporting year the guarantor 

shall send by certified mail, before 

cancellation or nonrenewal of the 

guarantee, notice to the owner or 

operator. If the Director of the 

implementing agency notifies the 

guarantor that he no longer meets the 

requirements of the financial test of 

§ 280.95 (b) or (c) and (d), the guarantor 

must notify the owner or operator 

within 10 days of receiving such 

notification from the Director. In both 

cases, the guarantee will terminate no 

less than 120 days after the date the 

owner or operator receives the 

notification, as evidenced by the return 

receipt. The owner or operator must 

obtain alternative coverage as specified 

in § 280.114(e). 

(c) * * * 

(3) [Insert appropriate phrase: ‘‘On 

behalf of our subsidiary’’ (if guarantor is 

corporate parent of the owner or 

operator); ‘‘On behalf of our affiliate’’ (if 

guarantor is a related firm of the owner 

or operator); or ‘‘Incident to our 

business relationship with’’ (if guarantor 

is providing the guarantee as an 

incident to a substantial business 

relationship with owner or operator)] 

[owner or operator], guarantor 

guarantees to [implementing agency] 

and to any and all third parties that: 

In the event that [owner or operator] 

fails to provide alternative coverage 

within 60 days after receipt of a notice 

of cancellation of this guarantee and the 

[Director of the implementing agency] 

has determined or suspects that a 

release has occurred at an underground 

storage tank covered by this guarantee, 

the guarantor, upon instructions from 

the [Director], shall fund a standby trust 

fund in accordance with the provisions 

of 40 CFR 280.112, in an amount not to 

exceed the coverage limits specified 

above. 

In the event that the [Director] 

determines that [owner or operator] has 

failed to perform corrective action for 

releases arising out of the operation of 

the above-identified tank(s) in 

accordance with 40 CFR part 280, 

subpart F, the guarantor upon written 

instructions from the [Director] shall 

fund a standby trust in accordance with 

the provisions of 40 CFR 280.112, in an 

amount not to exceed the coverage 

limits specified above. 

If [owner or operator] fails to satisfy 

a judgment or award based on a 

determination of liability for bodily 

injury or property damage to third 

parties caused by [‘‘sudden’’ and/or 

‘‘nonsudden’’] accidental releases 

arising from the operation of the aboveidentified tank(s), or fails to pay an 

amount agreed to in settlement of a 

claim arising from or alleged to arise 

from such injury or damage, the 

guarantor, upon written instructions 

from the [Director], shall fund a standby 

trust in accordance with the provisions 

of 40 CFR 280.112 to satisfy such 

judgment(s), award(s), or settlement 

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agreement(s) up to the limits of coverage 

specified above. 

* * * * * 

(d) An owner or operator who uses a 

guarantee to satisfy the requirements of 

§ 280.93 must establish a standby trust 

fund when the guarantee is obtained. 

Under the terms of the guarantee, all 

amounts paid by the guarantor under 

the guarantee will be deposited directly 

into the standby trust fund in 

accordance with instructions from the 

Director of the implementing agency 

under § 280.112. This standby trust fund 

must meet the requirements specified in 

§ 280.103. 

24. In § 280.97 revise paragraph (a) to 

read as follows: 

§ 280.97 Insurance and risk retention 

group coverage. 

(a) An owner or operator may satisfy 

the requirements of § 280.93 by 

obtaining liability insurance that 

conforms to the requirements of this 

section from a qualified insurer or risk 

retention group. Such insurance may be 

in the form of a separate insurance 

policy or an endorsement to an existing 

insurance policy. 

* * * * * 

25. In § 280.98 revise paragraphs (b) 

and (d) to read as follows: 

§ 280.98 Surety bond. 

* * * * * 

(b) The surety bond must be worded 

as follows, except that instructions in 

brackets must be replaced with the 

relevant information and the brackets 

deleted: 

Performance Bond 

Date bond executed: lllllllllll

Period of coverage: llllllllllll

Principal: [legal name and business address 

of owner or operator] 

lllllllllllllllllllll

Type of organization: [insert ‘‘individual,’’ 

‘‘joint venture,’’ ‘‘partnership,’’ or 

‘‘corporation’’] 

lllllllllllllllllllll

State of incorporation (if applicable): 

lllllllllllllllllllll

Surety(ies): [name(s) and business 

address(es)] 

lllllllllllllllllllll

Scope of Coverage: [List the number of tanks 

at each facility and the name(s) and 

address(es) of the facility(ies) where the tanks 

are located. If more than one instrument is 

used to assure different tanks at any one 

facility, for each tank covered by this 

instrument, list the tank identification 

number provided in the notification 

submitted pursuant to 40 CFR 280.22, or the 

corresponding state requirement, and the 

name and address of the facility. List the 

coverage guaranteed by the bond: ‘‘taking 

corrective action’’ and/or ‘‘compensating 

third parties for bodily injury and property 

damage caused by’’ either ‘‘sudden 

accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental releases’’ 

‘‘arising from operating the underground 

storage Tank’’]. 

Penal sums of bond: 

Per occurrence $ lllllllllllll

Annual aggregate $ lllllllllll

Surety’s bond number: llllllllll

Know All Persons by These Presents, that 

we, the Principal and Surety(ies), hereto are 

firmly bound to [the implementing agency], 

in the above penal sums for the payment of 

which we bind ourselves, our heirs, 

executors, administrators, successors, and 

assigns jointly and severally; provided that, 

where the Surety(ies) are corporations acting 

as co-sureties, we, the Sureties, bind 

ourselves in such sums jointly and severally 

only for the purpose of allowing a joint 

action or actions against any or all of us, and 

for all other purposes each Surety binds 

itself, jointly and severally with the 

Principal, for the payment of such sums only 

as is set forth opposite the name of such 

Surety, but if no limit of liability is indicated, 

the limit of liability shall be the full amount 

of the penal sums. 

Whereas said Principal is required under 

Subtitle I of the Solid Waste Disposal Act, as 

amended, to provide financial assurance for 

[insert: ‘‘taking corrective action’’ and/or 

‘‘compensating third parties for bodily injury 

and property damage caused by’’ either 

‘‘sudden accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental releases’’; 

if coverage is different for different tanks or 

locations, indicate the type of coverage 

applicable to each tank or location] arising 

from operating the underground storage tanks 

identified above, and 

Whereas said Principal shall establish a 

standby trust fund as is required when a 

surety bond is used to provide such financial 

assurance; 

Now, therefore, the conditions of the 

obligation are such that if the Principal shall 

faithfully [‘‘take corrective action, in 

accordance with 40 CFR part 280, subpart F 

and the Director of the state implementing 

agency’s instructions for,’’ and/or 

‘‘compensate injured third parties for bodily 

injury and property damage caused by’’ 

either ‘‘sudden accidental releases’’ or 

‘‘nonsudden accidental releases’’ or 

‘‘accidental releases’’] arising from operating 

the tank(s) indentified above, or if the 

Principal shall provide alternate financial 

assurance, as specified in 40 CFR part 280, 

subpart H, within 120 days after the date the 

notice of cancellation is received by the 

Principal from the Surety(ies), then this 

obligation shall be null and void; otherwise 

it is to remain in full force and effect. 

Such obligation does not apply to any of 

the following: 

(a) Any obligation of [insert owner or 

operator] under a workers’ compensation, 

disability benefits, or unemployment 

compensation law or other similar law; 

(b) Bodily injury to an employee of [insert 

owner or operator] arising from, and in the 

course of, employment by [insert owner or 

operator]; 

(c) Bodily injury or property damage 

arising from the ownership, maintenance, 

use, or entrustment to others of any aircraft, 

motor vehicle, or watercraft; 

(d) Property damage to any property 

owned, rented, loaned to, in the care, 

custody, or control of, or occupied by [insert 

owner or operator] that is not the direct result 

of a release from a petroleum underground 

storage tank; 

(e) Bodily injury or property damage for 

which [insert owner or operator] is obligated 

to pay damages by reason of the assumption 

of liability in a contract or agreement other 

than a contract or agreement entered into to 

meet the requirements of 40 CFR 280.93. 

The Surety(ies) shall become liable on this 

bond obligation only when the Principal has 

failed to fulfill the conditions described 

above. 

Upon notification by [the Director of the 

implementing agency] that the Principal has 

failed to [‘‘take corrective action, in 

accordance with 40 CFR part 280, subpart F 

and the Director’s instructions,’’ and/or 

‘‘compensate injured third parties’’] as 

guaranteed by this bond, the Surety(ies) shall 

either perform [‘‘corrective action in 

accordance with 40 CFR part 280 and the 

Director’s instructions,’’ and/or ‘‘third-party 

liability compensation’’] or place funds in an 

amount up to the annual aggregate penal sum 

into the standby trust fund as directed by [the 

Regional Administrator or the Director] 

under 40 CFR 280.112. 

Upon notification by [the Director] that the 

Principal has failed to provide alternate 

financial assurance within 60 days after the 

date the notice of cancellation is received by 

the Principal from the Surety(ies) and that 

[the Director] has determined or suspects that 

a release has occurred, the Surety(ies) shall 

place funds in an amount not exceeding the 

annual aggregate penal sum into the standby 

trust fund as directed by [the Director] under 

40 CFR 280.112. 

The Surety(ies) hereby waive(s) 

notification of amendments to applicable 

laws, statutes, rules, and regulations and 

agrees that no such amendment shall in any 

way alleviate its (their) obligation on this 

bond. 

The liability of the Surety(ies) shall not be 

discharged by any payment or succession of 

payments hereunder, unless and until such 

payment or payments shall amount in the 

annual aggregate to the penal sum shown on 

the face of the bond, but in no event shall the 

obligation of the Surety(ies) hereunder 

exceed the amount of said annual aggregate 

penal sum. 

The Surety(ies) may cancel the bond by 

sending notice of cancellation by certified 

mail to the Principal, provided, however, that 

cancellation shall not occur during the 120 

days beginning on the date of receipt of the 

notice of cancellation by the Principal, as 

evidenced by the return receipt. 

The Principal may terminate this bond by 

sending written notice to the Surety(ies). 

In Witness Thereof, the Principal and 

Surety(ies) have executed this Bond and have 

affixed their seals on the date set forth above. 

The persons whose signatures appear 

below hereby certify that they are authorized 

to execute this surety bond on behalf of the 

Principal and Surety(ies) and that the 

wording of this surety bond is identical to the 

wording specified in 40 CFR 280.98(b) as 

such regulations were constituted on the date 

this bond was executed. 

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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 71779 

Principal 

[Signature(s)] 

[Names(s)] 

[Title(s)] 

[Corporate seal] 

Corporate Surety(ies) 

[Name and address] 

[State of Incorporation: lllll] 

[Liability limit: $lllll] 

[Signature(s)] 

[Names(s) and title(s)] 

[Corporate seal] 

[For every co-surety, provide signature(s), 

corporate seal, and other information in the 

same manner as for Surety above.] 

Bond premium: $lllll 

* * * * * 

(d) The owner or operator who uses 

a surety bond to satisfy the requirements 

of § 280.93 must establish a standby 

trust fund when the surety bond is 

acquired. Under the terms of the bond, 

all amounts paid by the surety under the 

bond will be deposited directly into the 

standby trust fund in accordance with 

instructions from the Director under 

§ 280.112. This standby trust fund must 

meet the requirements specified in 

§ 280.103. 

26. In § 280.99 revise paragraphs (b) 

and (c) to read as follows: 

§ 280.99 Letter of credit. 

* * * * * 

(b) The letter of credit must be 

worded as follows, except that 

instructions in brackets are to be 

replaced with the relevant information 

and the brackets deleted: 

Irrevocable Standby Letter of Credit 

[Name and address of issuing institution] 

[Name and address of Director(s) of state 

implementing agency(ies)] 

Dear Sir or Madam: We hereby establish 

our Irrevocable Standby Letter of Credit No. 

lllll in your favor, at the request and 

for the account of [owner or operator name] 

of [address] up to the aggregate amount of [in 

words] U.S. dollars ($[insert dollar amount]), 

available upon presentation [insert, if more 

than one Director of a state implementing 

agency is a beneficiary, ‘‘by any one of you’’] 

of 

(1) your sight draft, bearing reference to 

this letter of credit, No. lllll, and 

(2) your signed statement reading as 

follows: ‘‘I certify that the amount of the draft 

is payable pursuant to regulations issued 

under authority of Subtitle I of the Solid 

Waste Disposal Act, as amended.’’ 

This letter of credit may be drawn on to 

cover [insert: ‘‘taking corrective action’’ and/ 

or ‘‘compensating third parties for bodily 

injury and property damage caused by’’ 

either ‘‘sudden accidental releases’’ or 

‘‘nonsudden accidental releases’’ or 

‘‘accidental releases’’] arising from operating 

the underground storage tank(s) identified 

below in the amount of [in words] $[insert 

dollar amount] per occurrence and [in words] 

$[insert dollar amount] annual aggregate: 

[List the number of tanks at each facility 

and the name(s) and address(es) of the 

facility(ies) where the tanks are located. If 

more than one instrument is used to assure 

different tanks at any one facility, for each 

tank covered by this instrument, list the tank 

identification number provided in the 

notification submitted pursuant to 40 CFR 

280.22, or the corresponding state 

requirement, and the name and address of 

the facility.] 

The letter of credit may not be drawn on 

to cover any of the following: 

(a) Any obligation of [insert owner or 

operator] under a workers’ compensation, 

disability benefits, or unemployment 

compensation law or other similar law; 

(b) Bodily injury to an employee of [insert 

owner or operator] arising from, and in the 

course of, employment by [insert owner or 

operator]; 

(c) Bodily injury or property damage 

arising from the ownership, maintenance, 

use, or entrustment to others of any aircraft, 

motor vehicle, or watercraft; 

(d) Property damage to any property 

owned, rented, loaned to, in the care, 

custody, or control of, or occupied by [insert 

owner or operator] that is not the direct result 

of a release from a petroleum underground 

storage tank; 

(e) Bodily injury or property damage for 

which [insert owner or operator] is obligated 

to pay damages by reason of the assumption 

of liability in a contract or agreement other 

than a contract or agreement entered into to 

meet the requirements of 40 CFR 280.93. 

This letter of credit is effective as of [date] 

and shall expire on [date], but such 

expiration date shall be automatically 

extended for a period of [at least the length 

of the original term] on [expiration date] and 

on each successive expiration date, unless, at 

least 120 days before the current expiration 

date, we notify [owner or operator] by 

certified mail that we have decided not to 

extend this letter of credit beyond the current 

expiration date. In the event that [owner or 

operator] is so notified, any unused portion 

of the credit shall be available upon 

presentation of your sight draft for 120 days 

after the date of receipt by [owner or 

operator], as shown on the signed return 

receipt. 

Whenever this letter of credit is drawn on 

under and in compliance with the terms of 

this credit, we shall duly honor such draft 

upon presentation to us, and we shall deposit 

the amount of the draft directly into the 

standby trust fund of [owner or operator] in 

accordance with your instructions. 

We certify that the wording of this letter of 

credit is identical to the wording specified in 

40 CFR 280.99(b) as such regulations were 

constituted on the date shown immediately 

below. 

[Signature(s) and title(s) of official(s) of 

issuing institution] 

[Date] 

This credit is subject to [insert ‘‘the most 

recent edition of the Uniform Customs and 

Practice for Documentary Credits, published 

and copyrighted by the International 

Chamber of Commerce,’’ or ‘‘the Uniform 

Commercial Code’’]. 

(c) An owner or operator who uses a letter 

of credit to satisfy the requirements of 

§ 280.93 must also establish a standby trust 

fund when the letter of credit is acquired. 

Under the terms of the letter of credit, all 

amounts paid pursuant to a draft by the 

Director of the implementing agency will be 

deposited by the issuing institution directly 

into the standby trust fund in accordance 

with instructions from the Director under 

§ 280.112. This standby trust fund must meet 

the requirements specified in § 280.103. 

* * * * * 

27. In § 280.101 revise paragraph (d) 

to read as follows: 

§ 280.101 State fund or other state 

assurance. 

* * * * * 

(d) The Regional Administrator will 

notify the state of his determination 

regarding the acceptability of the state’s 

fund or other assurance in lieu of 

financial mechanisms specified in this 

subpart. Within 60 days after the 

Regional Administrator notifies a state 

that a state fund or other state assurance 

is acceptable, the state must provide to 

each owner or operator for which it is 

assuming financial responsibility a 

letter or certificate describing the nature 

of the state’s assumption of 

responsibility. The letter or certificate 

from the state must include, or have 

attached to it, the following information: 

The facility’s name and address and the 

amount of funds for corrective action 

and/or for compensating third parties 

that is assured by the state. The owner 

or operator must maintain this letter or 

certificate on file as proof of financial 

responsibility in accordance with 

§ 280.111(b)(8). 

28. In § 280.103 revise paragraph 

(b)(1) and the Trust Agreement 

introductory text and section 4 to read 

as follows: 

§ 280.103 Standby trust fund. 

* * * * * 

(b)(1) The standby trust agreement, or 

trust agreement, must be worded as 

follows, except that instructions in 

brackets are to be replaced with the 

relevant information and the brackets 

deleted: 

Trust Agreement 

Trust agreement, the ‘‘Agreement,’’ entered 

into as of [date] by and between [name of the 

owner or operator], a [name of state] [insert 

‘‘corporation,’’ ‘‘partnership,’’ ‘‘association,’’ 

or ‘‘proprietorship’’], the ‘‘Grantor,’’ and 

[name of corporate trustee], [insert 

‘‘Incorporated in the state of lllll’’ or 

‘‘a national bank’’], the ‘‘Trustee.’’ 

Whereas, the United States Environmental 

Protection Agency, ‘‘EPA,’’ an agency of the 

United States Government, has established 

certain regulations applicable to the Grantor, 

requiring that an owner or operator of an 

underground storage tank shall provide 

assurance that funds will be available when 

needed for corrective action and third-party 

compensation for bodily injury and property 

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71780 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

damage caused by sudden and nonsudden 

accidental releases arising from the operation 

of the underground storage tank. The 

attached Schedule A lists the number of 

tanks at each facility and the name(s) and 

address(es) of the facility(ies) where the tanks 

are located that are covered by the [insert 

‘‘standby’’ where trust agreement is standby 

trust agreement] trust agreement. 

[Whereas, the Grantor has elected to 

establish [insert either ‘‘a guarantee,’’ ‘‘surety 

bond,’’ or ‘‘letter of credit’’] to provide all or 

part of such financial assurance for the 

underground storage tanks identified herein 

and is required to establish a standby trust 

fund able to accept payments from the 

instrument (This paragraph is only 

applicable to the standby trust agreement.)]; 

Whereas, the Grantor, acting through its 

duly authorized officers, has selected the 

Trustee to be the trustee under this 

agreement, and the Trustee is willing to act 

as trustee; 

Now, therefore, the Grantor and the 

Trustee agree as follows: 

* * * * * 

Section 4. Payment for [‘‘Corrective Action’’ 

and/or ‘‘Third-Party Liability Claims’’] 

The Trustee shall make payments from the 

Fund as [the Director of the implementing 

agency] shall direct, in writing, to provide for 

the payment of the costs of [insert: ‘‘taking 

corrective action’’ and/or ‘‘compensating 

third parties for bodily injury and property 

damage caused by’’ either ‘‘sudden 

accidental releases’’ or ‘‘nonsudden 

accidental Releases’’ or ‘‘accidental releases’’] 

arising from operating the tanks covered by 

the financial assurance mechanism identified 

in this Agreement. 

The Fund may not be drawn upon to cover 

any of the following: 

(a) Any obligation of [insert owner or 

operator] under a workers’ compensation, 

disability benefits, or unemployment 

compensation law or other similar law; 

(b) Bodily injury to an employee of [insert 

owner or operator] arising from, and in the 

course of employment by [insert owner or 

operator]; 

(c) Bodily injury or property damage 

arising from the ownership, maintenance, 

use, or entrustment to others of any aircraft, 

motor vehicle, or watercraft; 

(d) Property damage to any property 

owned, rented, loaned to, in the care, 

custody, or control of, or occupied by [insert 

owner or operator] that is not the direct result 

of a release from a petroleum underground 

storage tank; 

(e) Bodily injury or property damage for 

which [insert owner or operator] is obligated 

to pay damages by reason of the assumption 

of liability in a contract or agreement other 

than a contract or agreement entered into to 

meet the requirements of 40 CFR 280.93. 

The Trustee shall reimburse the Grantor, or 

other persons as specified by [the Director], 

from the Fund for corrective action 

expenditures and/or third-party liability 

claims in such amounts as [the Director] shall 

direct in writing. In addition, the Trustee 

shall refund to the Grantor such amounts as 

[the Director] specifies in writing. Upon 

refund, such funds shall no longer constitute 

part of the Fund as defined herein. 

* * * * * 

29. Amend § 280.104 as follows: 

a. By revising paragraph (b) 

b. By revising paragraph (d) 

c. By revising paragraph (e) 

d. By adding paragraph (h) 

§ 280.104 Local government bond rating 

test. 

* * * * * 

(b) A local government owner or 

operator or local government serving as 

a guarantor that is not a general-purpose 

local government and does not have the 

legal authority to issue general 

obligation bonds may satisfy the 

requirements of § 280.93 by having a 

currently outstanding issue or issues of 

revenue bonds of $1 million or more, 

excluding refunded issues, and by also 

having a Moody’s rating of Aaa, Aa, A, 

or Baa, or a Standard & Poor’s rating of 

AAA, AA, A, or BBB as the lowest 

rating for any rated revenue bond issued 

by the local government. Where bonds 

are rated by both Moody’s and Standard 

& Poor’s, the lower rating for each bond 

must be used to determine eligibility. 

Bonds that are backed by credit 

enhancement may not be considered in 

determining the amount of applicable 

bonds outstanding. 

* * * * * 

(d) To demonstrate that it meets the 

local government bond rating test, the 

chief financial officer of a general 

purpose local government owner or 

operator and/or guarantor must sign a 

letter worded exactly as follows, except 

that the instructions in brackets are to 

be replaced by the relevant information 

and the brackets deleted: 

Letter from Chief Financial Officer 

I am the chief financial officer of [insert: 

name and address of local government owner 

or operator, or guarantor]. This letter is in 

support of the use of the bond rating test to 

demonstrate financial responsibility for 

[insert: ‘‘taking corrective action’’ and/or 

‘‘compensating third parties for bodily injury 

and property damage’’] caused by [insert: 

‘‘sudden accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental releases’’] 

in the amount of at least [insert: dollar 

amount] per occurrence and [insert: dollar 

amount] annual aggregate arising from 

operating (an) underground storage tank(s). 

Underground storage tanks at the following 

facilities are assured by this bond rating test: 

[List for each facility: the name and address 

of the facility where tanks are assured by the 

bond rating test]. 

The details of the issue date, maturity, 

outstanding amount, bond rating, and bond 

rating agency of all outstanding bond issues 

that are being used by [name of local 

government owner or operator, or guarantor] 

to demonstrate financial responsibility are as 

follows: [complete table] 

Issue date Maturity date Outstanding 

amount Bond rating Rating agency 

[Moody’s or Standard & 

Poor’s] 

The total outstanding obligation of [insert 

amount], excluding refunded bond issues, 

exceeds the minimum amount of $1 million. 

All outstanding general obligation bonds 

issued by this government that have been 

rated by Moody’s or Standard & Poor’s are 

rated as at least investment grade (Moody’s 

Baa or Standard & Poor’s BBB) based on the 

most recent ratings published within the last 

12 months. Neither rating service has 

provided notification within the last 12 

months of downgrading of bond ratings 

below investment grade or of withdrawal of 

bond rating other than for repayment of 

outstanding bond issues. 

I hereby certify that the wording of this 

letter is identical to the wording specified in 

40 CFR part 280.104(d) as such regulations 

were constituted on the date shown 

immediately below. 

[Date] llllllllllllllllll

[Signature] lllllllllllllll

[Name] lllllllllllllllll

[Title] lllllllllllllllll

(e) To demonstrate that it meets the 

local government bond rating test, the 

chief financial officer of local 

government owner or operator and/or 

guarantor other than a general purpose 

government must sign a letter worded 

exactly as follows, except that the 

instructions in brackets are to be 

replaced by the relevant information 

and the brackets deleted: 

Letter from Chief Financial Officer 

I am the chief financial officer of [insert: 

name and address of local government owner 

or operator, or guarantor]. This letter is in 

support of the use of the bond rating test to 

demonstrate financial responsibility for 

[insert: ‘‘taking corrective action’’ and/or 

‘‘compensating third parties for bodily injury 

and property damage’’] caused by [insert: 

‘‘sudden accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental releases’’] 

in the amount of at least [insert: dollar 

amount] per occurrence and [insert: dollar 

amount] annual aggregate arising from 

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operating (an) underground storage tank(s). 

This local government is not organized to 

provide general governmental services and 

does not have the legal authority under state 

law or constitutional provisions to issue 

general obligation debt. 

Underground storage tanks at the following 

facilities are assured by this bond rating test: 

[List for each facility: the name and address 

of the facility where tanks are assured by the 

bond rating test]. 

The details of the issue date, maturity, 

outstanding amount, bond rating, and bond 

rating agency of all outstanding revenue bond 

issues that are being used by [name of local 

government owner or operator, or guarantor] 

to demonstrate financial responsibility are as 

follows: [complete table] 

Issue date Maturity date Outstanding 

amount Bond rating Rating agency 

[Moody’s or Standard & 

Poor’s] 

The total outstanding obligation of [insert 

amount], excluding refunded bond issues, 

exceeds the minimum amount of $1 million. 

All outstanding revenue bonds issued by this 

government that have been rated by Moody’s 

or Standard & Poor’s are rated as at least 

investment grade (Moody’s Baa or Standard 

& Poor’s BBB) based on the most recent 

ratings published within the last 12 months. 

The revenue bonds listed are not backed by 

third-party credit enhancement or insured by 

a municipal bond insurance company. 

Neither rating service has provided 

notification within the last 12 months of 

downgrading of bond ratings below 

investment grade or of withdrawal of bond 

rating other than for repayment of 

outstanding bond issues. 

I hereby certify that the wording of this 

letter is identical to the wording specified in 

40 CFR part 280.104(e) as such regulations 

were constituted on the date shown 

immediately below. 

[Date] llllllllllllllllll

[Signature] lllllllllllllll

[Name] lllllllllllllllll

[Title] lllllllllllllllll

* * * * * 

(h) If the local government owner or 

operator fails to obtain alternate 

assurance within 150 days of finding 

that it no longer meets the requirements 

of the bond rating test or within 30 days 

of notification by the Director of the 

implementing agency that it no longer 

meets the requirements of the bond 

rating test, the owner or operator must 

notify the Director of such failure within 

10 days. 

30. In § 280.105 revise paragraph (c) 

and the Letter From Chief Financial 

Officer to read as follows: 

§ 280.105 Local government financial test. 

* * * * * 

(c) To demonstrate that it meets the 

financial test under paragraph (b) of this 

section, the chief financial officer of the 

local government owner or operator, 

must sign, within 120 days of the close 

of each financial reporting year, as 

defined by the twelve-month period for 

which financial statements used to 

support the financial test are prepared, 

a letter worded exactly as follows, 

except that the instructions in brackets 

are to be replaced by the relevant 

information and the brackets deleted: 

Letter From Chief Financial Officer 

I am the chief financial officer of [insert: 

name and address of the owner or operator]. 

This letter is in support of the use of the local 

government financial test to demonstrate 

financial responsibility for [insert: ‘‘taking 

corrective action’’ and/or ‘‘compensating 

third parties for bodily injury and property 

damage’’] caused by [insert: ‘‘sudden 

accidental releases’’ or ‘‘nonsudden 

accidental releases’’ or ‘‘accidental releases’’] 

in the amount of at least [insert: dollar 

amount] per occurrence and [insert: dollar 

amount] annual aggregate arising from 

operating [an] underground storage tank[s]. 

Underground storage tanks at the following 

facilities are assured by this financial test 

[List for each facility: the name and address 

of the facility where tanks assured by this 

financial test are located. If separate 

mechanisms or combinations of mechanisms 

are being used to assure any of the tanks at 

this facility, list each tank assured by this 

financial test by the tank identification 

number provided in the notification 

submitted pursuant to 40 CFR part 280.22 or 

the corresponding state requirements.] 

This owner or operator has not received an 

adverse opinion, or a disclaimer of opinion 

from an independent auditor on its financial 

statements for the latest completed fiscal 

year. Any outstanding issues of general 

obligation or revenue bonds, if rated, have a 

Moody’s rating of Aaa, Aa, A, or Baa or a 

Standard and Poor’s rating of AAA, AA, A, 

or BBB; if rated by both firms, the bonds have 

a Moody’s rating of Aaa, Aa, A, or Baa and 

a Standard and Poor’s rating of AAA, AA, A, 

or BBB. 

Worksheet for Municipal Financial Test 

Part I: Basic Information 

1. Total Revenues 

a. Revenues (dollars)llllllllll 

Value of revenues excludes liquidation of 

investments and issuance of debt. Value 

includes all general fund operating and nonoperating revenues, as well as all revenues 

from all other governmental funds including 

enterprise, debt service, capital projects, and 

special revenues, but excluding revenues to 

funds held in a trust or agency capacity. 

b. Subtract interfund transfers 

(dollars)llllllllll 

c. Total Revenues 

(dollars)llllllllll 

2. Total Expenditures 

a. Expenditures 

(dollars)llllllllll 

Value consists of the sum of general fund 

operating and non-operating expenditures 

including interest payments on debt, 

payments for retirement of debt principal, 

and total expenditures from all other 

governmental funds including enterprise, 

debt service, capital projects, and special 

revenues. 

b. Subtract interfund transfers 

(dollars)llllllllll 

c. Total Expenditures (dollars) 

llllllllll 

3. Local Revenues 

a. Total Revenues (from 1c) 

(dollars)llllllllll 

b. Subtract total intergovernmental transfers 

(dollars)llllllllll 

c. Local Revenues 

(dollars)llllllllll 

4. Debt Service 

a. Interest and fiscal charges 

(dollars)llllllllll 

b. Add debt retirement 

(dollars)llllllllll 

c. Total Debt Service 

(dollars)llllllllll 

5. Total Funds 

(Dollars)llllllllll 

(Sum of amounts held as cash and 

investment securities from all funds, 

excluding amounts held for employee 

retirement funds, agency funds, and trust 

funds) 

6. Population 

(Persons)llllllllll 

Part II: Application of Test 

7. Total Revenues to Population 

a. Total Revenues (from 

1c)llllllllll 

b. Population (from 6)llllllllll 

c. Divide 7a by 7bllllllllll 

d. Subtract 417llllllllll 

e. Divide by 5,212llllllllll 

f. Multiply by 4.095llllllllll 

8. Total Expenses to Population 

a. Total Expenses (from 

2c)llllllllll 

b. Population (from 6)llllllllll 

c. Divide 8a by 8bllllllllll 

d. Subtract 524llllllllll 

e. Divide by 5,401llllllllll 

f. Multiply by 4.095llllllllll 

9. Local Revenues to Total Revenues 

a. Local Revenues (from 

3c)llllllllll 

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71782 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Proposed Rules 

b. Total Revenues (from 

1c)llllllllll 

c. Divide 9a by 9bllllllllll 

d. Subtract .695llllllllll 

e. Divide by .205llllllllll 

f. Multiply by 2.840llllllllll 

10. Debt Service to Population 

a. Debt Service (from 

4c)llllllllll 

b. Population (from 6)llllllllll 

c. Divide 10a by 10bllllllll 

d. Subtract 51llllllll 

e. Divide by 1,038llllllll 

f. Multiply by ¥1.866llllllll 

11. Debt Service to Total Revenues 

a. Debt Service (from 4c)llllllll 

b. Total Revenues (from 1c)llllllll 

c. Divide 11a by 11bllllllll 

d. Subtract .068llllllll 

e. Divide by .259llllllll 

f. Multiply by -3.533llllllll 

12. Total Revenues to Total Expenses 

a. Total Revenues (from 1c)llllllll 

b. Total Expenses (from 2c)llllllll 

c. Divide 12a by 12bllllllll 

d. Subtract .910llllllll 

e. Divide by .899llllllll 

f. Multiply by 3.458llllllll 

13. Funds Balance to Total Revenues 

a. Total Funds (from 5)llllllll 

b. Total Revenues (from 1c)llllllll 

c. Divide 13a by 13bllllllll 

d. Subtract .891llllllll 

e. Divide by 9.156llllllll 

f. Multiply by 3.270llllllll 

14. Funds Balance to Total Expenses 

a. Total Funds (from 5)llllllll 

b. Total Expenses (from 2c)llllllll 

c. Divide 14a by 14bllllllll 

d. Subtract .866llllllll 

e. Divide by 6.409llllllll 

f. Multiply by 3.270llllllll 

15. Total Funds to 

Populationllllllll 

a. Total Funds (from 5)llllllll 

b. Population (from 6)llllllll 

c. Divide 15a by 15bllllllll 

d. Subtract 270llllllll 

e. Divide by 4,548llllllll 

f. Multiply by 1.866llllllll 

16. Add 7f + 8f + 9f + 10f + 11f + 12f + 

13f + 14f + 15f + 4.937llllllll 

I hereby certify that the financial index 

shown on line 16 of the worksheet is greater 

than zero and that the wording of this letter 

is identical to the wording specified in 40 

CFR part 280.105(c) as such regulations were 

constituted on the date shown immediately 

below. 

[Date] 

[Signature] 

[Name] 

[Title] 

* * * * * 

31. Amend § 280.106 as follows: 

a. By revising paragraph (a)(1) 

b. By revising paragraph (b) 

c. By revising paragraph (d)(7)(d) 

d. By revising paragraph (e)(7)(d) 

e. By revising paragraph (e)(8)(d) 

§ 280.106 Local government guarantee. 

(a) * * * 

(1) Demonstrate that it meets the bond 

rating test requirement of § 280.104 and 

deliver a copy of the chief financial 

officer’s letter as contained in 

§ 280.104(d) and § 280.104(e) to the 

local government owner or operator; or 

* * * * * 

(b) If the local government guarantor 

is unable to demonstrate financial 

assurance under any of § § 280.104, 

280.105, 280.107(a), 280.107(b), or 

280.107(c), at the end of the financial 

reporting year, the guarantor shall send 

by certified mail, before cancellation or 

non-renewal of the guarantee, notice to 

the owner or operator. The guarantee 

will terminate no less than 120 days 

after the date the owner or operator 

receives the notification, as evidenced 

by the return receipt. The owner or 

operator must obtain alternative 

coverage as specified in § 280.114(e). 

* * * * * 

(d) * * * 

(7) * * * 

(d) Property damage to any property 

owned, rented, loaned to, in the care, 

custody, or control of, or occupied by 

[insert: local government owner or 

operator] that is not the direct result of 

a release from a petroleum underground 

storage tank; 

* * * * * 

(e) * * * 

(7) * * * 

(d) Property damage to any property 

owned, rented, loaned to, in the care, 

custody, or control of, or occupied by 

[insert: local government owner or 

operator] that is not the direct result of 

a release from a petroleum underground 

storage tank; 

* * * * * 

(8) * * * 

(d) Property damage to any property 

owned, rented, loaned to, in the care, 

custody, or control of, or occupied by 

[insert: local government owner or 

operator] that is not the direct result of 

a release from a petroleum underground 

storage tank; 

* * * * * 

32. In § 280.107 revise paragraph (d) 

to read as follows: 

§ 280.107 Local government fund. 

* * * * * 

(d) To demonstrate that it meets the 

requirements of the local government 

fund, the chief financial officer of the 

local government owner or operator 

and/or guarantor must sign a letter 

worded exactly as follows, except that 

the instructions in brackets are to be 

replaced by the relevant information 

and the brackets deleted: 

Letter from Chief Financial Officer 

I am the chief financial officer of [insert: 

name and address of local government owner 

or operator, or guarantor]. This letter is in 

support of the use of the local government 

fund mechanism to demonstrate financial 

responsibility for [insert: ‘‘taking corrective 

action’’ and/or ‘‘compensating third parties 

for bodily injury and property damage’’] 

caused by [insert: ‘‘sudden accidental 

releases’’ or ‘‘nonsudden accidental releases’’ 

or ‘‘accidental releases’’] in the amount of at 

least [insert: dollar amount] per occurrence 

and [insert: dollar amount] annual aggregate 

arising from operating (an) underground 

storage tank(s). 

Underground storage tanks at the following 

facilities are assured by this local government 

fund mechanism: [List for each facility: the 

name and address of the facility where tanks 

are assured by the local government fund]. 

[Insert: ‘‘The local government fund is 

funded for the full amount of coverage 

required under § 280.93, or funded for part of 

the required amount of coverage and used in 

combination with other mechanism(s) that 

provide the remaining coverage.’’ or ‘‘The 

local government fund is funded for five 

times the full amount of coverage required 

under § 280.93, or funded for part of the 

required amount of coverage and used in 

combination with other mechanisms(s) that 

provide the remaining coverage,’’ or ‘‘A 

payment is made to the fund once every year 

for seven years until the fund is fully-funded 

and [name of local government owner or 

operator] has available bonding authority, 

approved through voter referendum, of an 

amount equal to the difference between the 

required amount of coverage and the amount 

held in the dedicated fund’’ or ‘‘A payment 

is made to the fund once every year for seven 

years until the fund is fully-funded and I 

have attached a letter signed by the State 

Attorney General stating that (1) the use of 

the bonding authority will not increase the 

local government’s debt beyond the legal 

debt ceilings established by the relevant state 

laws and (2) that prior voter approval is not 

necessary before use of the bonding 

authority’’]. 

The details of the local government fund 

are as follows: 

Amount in Fund (market value of fund at 

close of last fiscal year):lllll 

[If fund balance is incrementally funded as 

specified in § 280.107(c), insert: 

Amount added to fund in the most recently 

completed fiscal year:lllll 

Number of years remaining in the pay-in 

period: lllll] 

A copy of the state constitutional 

provision, or local government statute, 

charter, ordinance or order dedicating the 

fund is attached. 

I hereby certify that the wording of this 

letter is identical to the wording specified in 

40 CFR 280.107(d) as such regulations were 

constituted on the date shown immediately 

below. 

[Date] 

[Signature] 

[Name] 

[Title] 

* * * * * 

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33. In § 280.109 revise paragraph (b) 

(3) to read as follows: 

§ 280.109 Cancellation or nonrenewal by a 

provider of financial assurance. 

* * * * * 

(b) * * * 

(3) The evidence of the financial 

assistance mechanism subject to the 

termination maintained in accordance 

with § 280.111(b). 

34. In § 280.111 revise paragraphs 

(b)(9)(ii) and (iii) to read as follows: 

§ 280.111 Recordkeeping. 

* * * * * 

(b) * * * 

(9) * * * 

(ii) Year-end financial statements for 

the most recent completed financial 

reporting year showing the amount in 

the fund. If the fund is established 

under § 280.107(c) using incremental 

funding backed by bonding authority, 

the financial statements must show the 

previous year’s balance, the amount of 

funding during the year, and the closing 

balance in the fund. 

(iii) If the fund is established under 

§ 280.107(c) using incremental funding 

backed by bonding authority, the owner 

or operator must also maintain 

documentation of the required bonding 

authority, including either the results of 

a voter referendum (under 

§ 280.107(c)(1)), or attestation by the 

State Attorney General as specified 

under § 280.107(c)(2). 

* * * * * 

35. Revise § 280.113 to read as 

follows: 

§ 280.113 Release from the requirements. 

An owner or operator is no longer 

required to maintain financial 

responsibility under this subpart for an 

underground storage tank after the tank 

has been permanently closed or, if 

corrective action is required, after 

corrective action has been completed 

and the tank has been permanently 

closed as required by 40 CFR part 280, 

subpart G. 

36. Add Subpart J to read as follows: 

Subpart J—Operator Training 

Sec. 

280.240 General requirement for all UST 

systems. 

280.241 Designation of operators. 

280.242 Requirements for operator training. 

280.243 Timing of operator training. 

280.244 Retraining. 

280.245 Documentation. 

Subpart J—Operator Training 

§ 280.240 General requirement for all UST 

systems. 

Not later than [Three years after 

effective date of rule], all owners and 

operators of UST systems must ensure 

they have designated Class A, Class B, 

and Class C operators who meet the 

requirements of this subpart. 

§ 280.241 Designation of operators. 

UST system owners and operators 

must designate: 

(a) At least one Class A and one Class 

B operator for each UST or group of 

USTs at a facility; and 

(b) Each individual who meets the 

definition of Class C operator at the UST 

facility as a Class C operator. Class C 

operators must be employees of the UST 

system owner and operator. 

§ 280.242 Requirements for operator 

training. 

UST system owners and operators 

must ensure Class A, Class B, and Class 

C operators meet the requirements of 

this section. Any individual designated 

for more than one operator class must 

successfully complete the required 

training program or comparable 

examination according to the operator 

class in which the individual is 

designated. 

(a) Class A operators. Each designated 

Class A operator must either be trained 

in accordance with paragraphs (a)(1) 

and (a)(2) of this section or pass a 

comparable examination in accordance 

with paragraph (e) of this section. Class 

A operators must receive training from 

an independent trainer. 

(1) At a minimum, the training 

program for the Class A operator must 

provide general knowledge of the 

requirements in this paragraph. At a 

minimum, the training must teach the 

Class A operators, as applicable, on the 

purpose, methods, and function of: 

(i) Spill and overfill prevention; 

(ii) Release detection; 

(iii) Corrosion protection; 

(iv) Emergency response; 

(v) Product and equipment 

compatibility; 

(vi) Financial responsibility; 

(vii) Notification and storage tank 

registration; 

(viii) Temporary and permanent 

closure; 

(ix) Related reporting and 

recordkeeping; 

(x) Environmental and regulatory 

consequences of releases; and 

(xi) Training requirements for Class B 

and Class C operators. 

(2) At a minimum, the training 

program must evaluate Class A 

operators to determine these individuals 

have the knowledge and skills to make 

informed decisions regarding 

compliance and determine whether 

appropriate individuals are fulfilling the 

operation, maintenance, and 

recordkeeping requirements for UST 

systems in accordance with paragraph 

(a)(1) of this section. 

(b) Class B operators. Each designated 

Class B operator must either receive 

training in accordance with paragraphs 

(b)(1) and (b)(2) of this section or pass 

a comparable examination, in 

accordance with paragraph (e) of this 

section. Class B operators must receive 

training from an independent trainer. 

(1) At a minimum, the training 

program for the Class B operator must 

cover either: General requirements that 

encompass all regulatory requirements 

and typical equipment used at UST 

facilities; or site-specific requirements 

which address only the regulatory 

requirements and equipment specific to 

the facility. At a minimum, the training 

program for Class B operators must 

teach the Class B operator, as 

applicable, on the purpose, methods, 

and function of: 

(i) Operation and maintenance; 

(ii) Spill and overfill prevention; 

(iii) Release detection and related 

reporting; 

(iv) Corrosion protection and related 

testing; 

(v) Emergency response; 

(vi) Product and equipment 

compatibility; 

(vii) Reporting and recordkeeping; 

(viii) Environmental and regulatory 

consequences of releases; and 

(ix) Training requirements for Class C 

operator. 

(2) At a minimum, the training 

program must evaluate Class B operators 

to determine these individuals have the 

knowledge and skills to implement 

applicable UST regulatory requirements 

in the field on the components of 

typical UST systems or, as applicable, 

site-specific equipment used at an UST 

facility in accordance with paragraph 

(b)(1) of this section. 

(c) Class C operators. Each designated 

Class C operator must either: Be trained 

by a Class A or Class B operator in 

accordance with paragraphs (c)(1) and 

(c)(2) of this section; complete a training 

program in accordance with paragraphs 

(c)(1) and (c)(2) of this section; or pass 

a comparable examination, in 

accordance with paragraph (e) of this 

section. 

(1) At a minimum, the training 

program for the Class C operator must 

teach the Class C operators to take 

appropriate actions in response to: 

(i) Emergencies; and 

(ii) Alarms caused by spills or releases 

from the UST system. 

(2) At a minimum, the training 

program must evaluate Class C operators 

to determine these individuals have the 

knowledge and skills to take appropriate 

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action in response to emergencies 

(including situations posing an 

immediate danger or threat to the public 

or to the environment and that require 

immediate action) or alarms caused by 

spills or releases from an underground 

storage tank system. 

(d) Training program. Any training 

program must meet the minimum 

requirements of this section and include 

an evaluation through testing, a 

practical demonstration, or another 

approach acceptable to the 

implementing agency. The evaluation 

component of the training program must 

be developed and administered by an 

independent organization or the 

implementing agency or delegated 

authority. 

(e) Comparable Examination. A 

comparable examination must, at a 

minimum, test the knowledge of the 

Class A, Class B, or Class C operators in 

accordance with the requirements of 

paragraphs (a), (b), (c) of this section, as 

applicable. The examination must be 

developed and administered by an 

independent organization or the 

implementing agency or delegated 

authority. 

§ 280.243 Timing of operator training. 

(a) An owner and operator must 

ensure that designated Class A, Class B, 

and Class C operators meet 

requirements in § 280.242 according to 

the following schedule: 

PHASE-IN SCHEDULE FOR OPERATOR TRAINING

Criteria Date when operator training or comparable 

examination is required 

One or more USTs at the facility were installed on or before 12/22/1988 ..................................... [1 year after effective date of rule]. 

No USTs at the facility were installed on or before 12/22/1988 and at least one UST at the facility was installed on or before 12/22/1998.[2 years after effective date of rule]. 

All USTs at the facility were installed after 12/22/1998 ................................................................... [3 years after effective date of rule]. 

(b) Class A and Class B operators 

designated after the applicable effective 

date indicated in the schedule above 

must meet requirements in § 280.242 

within 30 days of assuming duties. 

(c) Class C operators designated after 

the applicable effective date indicated 

in the schedule above must be trained 

before assuming duties of a Class C 

operator. 

§ 280.244 Retraining. 

Class A and Class B operators of UST 

systems determined by the 

implementing agency to be out of 

compliance must complete a training 

program or comparable examination in 

accordance with requirements in 

§ 280.242. At a minimum, the training 

must cover the area(s) determined to be 

out of compliance. UST system owners 

and operators must ensure Class A and 

Class B operators are retrained pursuant 

to this section no later than 30 days 

from the date the implementing agency 

determines the facility is out of 

compliance except in one of the 

following situations: 

(a) Class A and Class B operators take 

annual refresher training. Refresher 

training for Class A and Class B 

operators must cover all applicable 

requirements in § 280.242, or 

(b) The implementing agency, at its 

discretion, grants a waiver of this 

retraining requirement to either the 

Class A or Class B operator or both. 

§ 280.245 Documentation. 

Owners and operators of underground 

storage tank systems must maintain a 

list of designated Class A, Class B, and 

Class C operators and maintain records 

verifying that training and retraining, as 

applicable, have been completed, in 

accordance with § 280.34 as follows: 

(a) The list must: 

(1) Identify all Class A, Class B, and 

Class C operators at the facility over the 

last three years; and 

(2) Include names, class of operator 

trained, date assumed duties, date each 

completed initial training, and any 

retraining. 

(b) Records verifying completion of 

training or retraining must be a paper or 

electronic record for Class A, Class B, 

and Class C operators. The records, at a 

minimum, must identify name of 

trainee, date trained, and operator 

training class completed. Owners and 

operators must maintain these records 

for as long as Class A, Class B, and Class 

C operators are designated. The 

following requirements also apply to the 

following types of training: 

(1) Records from classroom or field 

training programs or a comparable 

examination must, at a minimum, be 

signed by the trainer or examiner and 

list the printed name of the trainer or 

examiner and the company name, 

address, and phone number; 

(2) Records from computer-based 

training must, at a minimum, indicate 

the name of the training program and 

web address, if Internet-based; and 

(3) Records of retraining must include 

those areas on which the Class A or 

Class B operator has been retrained. 

37. Appendix III to Part 280 is revised 

to read as follows: 

Appendix III to Part 280—Statement for 

Shipping Tickets and Invoices 

Note. A federal law (the Solid Waste 

Disposal Act, as amended), requires owners 

of certain underground storage tanks to notify 

implementing agencies of the existence of 

their tanks. Notifications must be made 

within 30 days of bringing the tank into use. 

Consult EPA’s regulations at 40 CFR 280.22 

to determine if you are affected by this law. 

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BILLING CODE 6560–50–C 

PART 281—APPROVAL OF STATE 

UNDERGROUND STORAGE TANK 

PROGRAMS 

38. Revise Part 281 to read as follows: 

PART 281—APPROVAL OF STATE 

UNDERGROUND STORAGE TANK 

PROGRAMS 

Subpart A—Purpose, General Requirements 

and Scope 

Sec. 

281.10 Purpose. 

281.11 General requirements. 

281.12 Scope and definitions. 

Subpart B—Components of a Program 

Application 

Sec. 

281.20 Program application. 

281.21 Description of state program. 

281.22 Procedures for adequate 

enforcement. 

281.23 Memorandum of agreement. 

281.24 Attorney General’s statement. 

Subpart C—Criteria for No Less Stringent 

Sec. 

281.30 New UST system design, 

construction, installation, and 

notification. 

281.31 Upgrading existing UST systems. 

281.32 General operating requirements. 

281.33 Release detection. 

281.34 Release reporting, investigation, and 

confirmation. 

281.35 Release response and corrective 

action. 

281.36 Out-of-service UST systems and 

closure. 

281.37 Financial responsibility for UST 

systems containing petroleum. 

281.38 Lender liability. 

281.39 Operator training. 

Subpart D—Adequate Enforcement of 

Compliance 

Sec. 

281.40 Requirements for compliance 

program and authority. 

281.41 Requirements for enforcement 

authority. 

281.42 Requirements for public 

participation. 

281.43 Sharing of information. 

Subpart E—Approval Procedures 

Sec. 

281.50 Approval procedures for state 

programs. 

281.51 Revision of approved state 

programs. 

Subpart F—Withdrawal of Approval of State 

Programs 

Sec. 

281.60 Criteria for withdrawal of approval 

of state programs. 

281.61 Procedures for withdrawal of 

approval of state programs. 

Authority: Sections 2002, 9004, 9005, 9006 

of the Solid Waste Disposal Act, as amended 

by the Resource Conservation and Recovery 

Act of 1976, as amended (42 U.S.C. 6912, 

6991(c), (d), (e)). 

Subpart A—Purpose, General 

Requirements and Scope 

§ 281.10 Purpose. 

(a) This part specifies the 

requirements that state programs must 

meet for approval by the Administrator 

under § 9004 of the Solid Waste 

Disposal Act, and the procedures EPA 

will follow in approving, revising and 

withdrawing approval of state programs. 

(b) State submissions for program 

approval must be in accordance with 

the procedures set out in this part. 

(c) A state may apply for approval 

under this part at any time after the 

promulgation of release detection, 

prevention, and corrective action 

regulations under § 9003 of the Solid 

Waste Disposal Act. 

(d) Any state program approved by 

the Administrator under this part shall 

at all times be conducted in accordance 

with the requirements of this part. 

§ 281.11 General Requirements. 

(a) State Program Elements. The 

following substantive elements of a state 

program must be addressed in a state 

application for approval: 

(1) Requirements for all existing and 

new underground storage tanks: 

(i) New UST systems (design, 

construction, installation, and 

notification); 

(ii) Upgrading of existing UST 

systems; 

(iii) General operating requirements; 

(iv) Release detection; 

(v) Release reporting, investigation, 

and confirmation; 

(vi) Out-of-service USTs and closure; 

(vii) Release response and corrective 

action; 

(viii) Financial responsibility for UST 

systems containing petroleum; and 

(ix) Operator training. 

(2) Provisions for adequate 

enforcement of compliance with the 

above program elements. 

(b) Final Approval. The state must 

demonstrate that its requirements under 

each state program element for existing 

and new UST systems are no less 

stringent than the corresponding federal 

requirements as set forth in subpart C of 

this part. The state must also 

demonstrate that it has a program that 

provides adequate enforcement of 

compliance with these requirements. 

(c) States with programs approved 

under this part are authorized to 

administer the state program in lieu of 

the federal program and will have 

primary enforcement responsibility with 

respect to the requirements of the 

approved program. EPA retains 

authority to take enforcement action in 

approved states as necessary and will 

notify the designated lead state agency 

of any such intended action. 

§ 281.12 Scope and Definitions. 

(a) Scope 

(1) The Administrator may approve 

either partial or complete state 

programs. A ‘‘partial’’ state program 

regulates either solely UST systems 

containing petroleum or solely UST 

systems containing hazardous 

substances. If a ‘‘partial’’ state program 

is approved, EPA will administer the 

remaining part of the program. A 

‘‘complete’’ state program regulates both 

petroleum and hazardous substance 

tanks. 

(2) EPA will administer the UST 

program in Indian country, except 

where Congress has clearly expressed an 

intention to grant a state authority to 

regulate petroleum and hazardous 

substance USTs in Indian country. In 

either case, this decision will not impair 

a state’s ability to obtain program 

approval for petroleum and/or 

hazardous substances in non-Indian 

country in accordance with this part. 

(3) Nothing in this subpart precludes 

a state from: 

(i) Adopting or enforcing 

requirements that are more stringent or 

more extensive than those required 

under this part; or 

(ii) Operating a program with a greater 

scope of coverage than that required 

under this part. Where an approved 

state program has a greater scope of 

coverage than required by federal law, 

the additional coverage is not part of the 

federally-approved program. 

(b) Definitions 

(1) The definitions in part 280 apply 

to this entire part. 

(2) For the purposes of this part the 

term ‘‘final approval’’ means the 

approval received by a state program 

that meets the requirements in 

§ 281.11(b). 

Subpart B—Components of a Program 

Application 

§ 281.20 Program Application. 

Any state that seeks to administer a 

program under this part must submit an 

application containing the following 

parts: 

(a) A transmittal letter from the 

Governor of the state requesting 

program approval; 

(b) A description in accordance with 

§ 281.21 of the state program and 

operating procedures; 

(c) A demonstration of the state’s 

procedures to ensure adequate 

enforcement; 

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(d) A Memorandum of Agreement 

outlining roles and responsibilities of 

EPA and the implementing agency; 

(e) An Attorney General’s statement in 

accordance with § 281.25 certifying to 

applicable state authorities; and 

(f) Copies of all applicable state 

statutes and regulations. 

Note to § 281.20: EPA has designed an 

optional application form that is available for 

use by state applicants. 

§ 281.21 Description of State Program. 

A state seeking to administer a 

program under this part must submit a 

description of the program it proposes 

to administer under state law in lieu of 

the federal program. The description of 

a state’s existing or planned program 

must include: 

(a) The scope of the state program: 

(1) whether the state program 

regulates UST systems containing 

petroleum or hazardous substances, or 

both; 

(2) whether the state program is more 

stringent or broader in scope than the 

federal program, and in what ways; and 

(3) whether the state has any existing 

authority over Indian lands or has 

existing agreements with Indian Tribes 

relevant to the regulation of 

underground storage tanks. 

(b) The organization and structure of 

the state and local agencies with 

responsibility for administering the 

program. The jurisdiction and 

responsibilities of all state and local 

implementing agencies must be 

delineated, appropriate procedures for 

coordination set forth, and one state 

agency designated as a ‘‘lead agency’’ to 

facilitate communications between EPA 

and the state. 

(c) Staff resources to carry out and 

enforce the required state program 

elements, both existing and planned, 

including the number of employees, 

agency where employees are located, 

general duties of the employees, and 

current limits or restrictions on hiring or 

utilization of staff. 

(d) An existing state funding 

mechanism to meet the estimated costs 

of administering and enforcing the 

required state program elements, and 

any restrictions or limitations upon this 

funding. 

§ 281.22 Procedures for Adequate 

Enforcement. 

A state must submit a description of 

its compliance monitoring and 

enforcement procedures, including 

related state administrative or judicial 

review procedures. 

§ 281.23 Memorandum of Agreement. 

EPA and the approved state will 

negotiate a Memorandum of Agreement 

(MOA) containing proposed areas of 

coordination and shared responsibilities 

between the state and EPA and separate 

EPA and state roles and responsibilities 

in areas including, but not limited to: 

Implementation of partial state 

programs; enforcement; compliance 

monitoring; EPA oversight; and sharing 

and reporting of information. At the 

time of approval, the MOA must be 

signed by the Regional Administrator 

and the appropriate official of the state 

lead agency. 

§ 281.24 Attorney General’s Statement. 

(a) A state must submit a written 

demonstration from the Attorney 

General that the laws and regulations of 

the state provide adequate authority to 

carry out the program described under 

§ 281.21 and to meet other requirements 

of this part. This statement may be 

signed by independent legal counsel for 

the state rather than the Attorney 

General, provided that such counsel has 

full authority to independently 

represent the state Agency in court on 

all matters pertaining to the state 

program. This statement must include 

citations to the specific statutes, 

administrative regulations, and where 

appropriate, judicial decisions that 

demonstrate adequate authority to 

regulate and enforce requirements for 

UST systems. State statutes and 

regulations cited by the state Attorney 

General must be fully effective when the 

program is approved. 

(b) If a state currently has authority 

over underground storage tank activities 

on Indian country, the statement must 

contain an appropriate analysis of the 

state’s authority. 

Subpart C—Criteria for No Less 

Stringent 

§ 281.30 New UST System Design, 

Construction, Installation, and Notification. 

In order to be considered no less 

stringent than the corresponding federal 

requirements for new UST system 

design, construction, installation, and 

notification, the state must have 

requirements that ensure all new 

underground storage tanks, and the 

attached piping in contact with the 

ground and used to convey the 

regulated substance stored in the tank, 

conform to the following: 

(a) Be designed, constructed, and 

installed in a manner that will prevent 

releases for their operating life due to 

manufacturing defects, structural 

failure, or corrosion. Unless the state 

requires manufacturer and installer 

financial responsibility and installer 

certification in accordance with 

§ 9003(i)(2) of the Solid Waste Disposal 

Act, then the state must meet the 

following: 

(1) Tanks and piping replaced or 

installed after the state’s submission of 

its state program approval or revision 

application must use interstitial 

monitoring within secondary 

containment in accordance with 

§ 9003(i)(1) of the Solid Waste Disposal 

Act. 

(2) Motor fuel dispenser systems 

installed and connected to an UST 

system after the state’s submission of its 

state program approval or revisions 

application must be equipped with 

under-dispenser containment in 

accordance with § 9003(i)(1) of the Solid 

Waste Disposal Act. 

Note to paragraph (a): Codes of practice 

developed by nationally-recognized 

organizations and national independent 

testing laboratories may be used to 

demonstrate that the state program 

requirements are no less stringent in this 

area.; 

(b) Be provided with equipment to prevent 

spills and tank overfills when new tanks are 

installed or existing tanks are upgraded, 

unless the tank does not receive more than 

25 gallons at one time. Flow restrictors used 

in vent lines are not allowable forms of 

overfill prevention when overfill prevention 

is installed or replaced after the state applies 

for state program approval or revision. 

(c) All UST system owners and operators 

must notify the implementing state agency of 

the existence of any new UST system and 

adequately notify the implementing state 

agency within a reasonable timeframe when 

assuming ownership of an UST system using 

a form designated by the state agency. 

§ 281.31 Upgrading UST Systems. 

In order to be considered no less 

stringent than the corresponding federal 

upgrading requirements, the state must 

have requirements that ensure UST 

systems installed prior to the state 

applying for state program approval or 

revision meet the requirements of 

§ 281.30; are upgraded to prevent 

releases for their operating life due to 

corrosion, and spills, and overfills; or 

are permanently closed with the 

following exceptions: 

(a) Upgrade Requirements for 

Previously Deferred UST Systems. 

Previously deferred wastewater 

treatment tank systems, airport hydrant 

fuel distribution systems, and UST 

systems with field-constructed tanks 

where installation commenced before 

the state’s submission of its state 

program approval or revision 

application must, within three years of 

the effective date of this section, as 

amended, or prior to the state’s 

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submission of its state program approval 

or revision application, whichever date 

is later, meet the requirements of 

§ 281.30 or be permanently closed. 

(b) Upgrade Requirements for Other 

UST Systems. States may allow UST 

systems to be upgraded if the state 

determines that the upgrade is 

appropriate to prevent releases for the 

operating life of the UST system due to 

corrosion and spill or overfills. 

§ 281.32 General Operating Requirements. 

In order to be considered no less 

stringent than the corresponding federal 

general operating requirements, the state 

must have requirements that ensure all 

new and existing UST systems conform 

to the following: 

(a) Prevent spills and overfills by 

ensuring that the space in the tank is 

sufficient to receive the volume to be 

transferred and that the transfer 

operation is monitored constantly; 

(b) Where equipped with cathodic 

protection, be operated and maintained 

by a person with sufficient training and 

experience in preventing corrosion, and 

in a manner that ensures that no 

releases occur during the operating life 

of the UST system; 

Note to paragraph (b): Codes of practice 

developed by nationally-recognized 

organizations and national independent 

testing laboratories may be used to 

demonstrate the state program requirements 

are no less stringent. 

(c) Be made of or lined with materials that 

are compatible with the substance stored; 

(d) At the time of upgrade or repair, be 

structurally sound and upgraded or repaired 

in a manner that will prevent releases due to 

structural failure or corrosion during their 

operating lives; 

(e) Have spill and overfill prevention 

equipment periodically tested in a manner 

and frequency that ensures its functionality 

for the operating life of the equipment and 

have the integrity of secondary containment 

periodically tested in a manner and 

frequency that prevents releases during the 

operating life of the UST system, except on 

equipment not required to be tested by 40 

CFR part 280. 

(f) Have operation and maintenance 

walkthrough inspections periodically 

conducted in a manner and frequency that 

ensures proper operation and maintenance 

for the operating life of the UST system. 

(g) Have records of monitoring, testing, 

repairs, and operation and maintenance 

walkthrough inspections. These records must 

be made readily available when requested by 

the implementing agency. 

§ 281.33 Release Detection. 

In order to be considered no less 

stringent than the corresponding federal 

requirements for release detection, the 

state must have requirements that at a 

minimum ensure all UST systems are 

provided with release detection that 

conforms to the following: 

(a) General Methods. Release 

detection requirements for owners and 

operators must consist of a method, or 

combination of methods, that is: 

(1) Capable of detecting a release of 

the regulated substance from any 

portion of the UST system that routinely 

contains regulated substances—as 

effectively as any of the methods 

allowed under the federal technical 

standards—for as long as the UST 

system is in operation. In comparing 

methods, the implementing agency shall 

consider the size of release that the 

method can detect and the speed and 

reliability with which the release can be 

detected. 

(2) Designed, installed, calibrated, 

operated and maintained so that 

releases will be detected in accordance 

with the capabilities of the method; 

(3) Operated and maintained, and 

electronic and mechanical components 

are tested periodically, in a manner and 

frequency that ensures proper operation 

to detect releases for the operating life 

of the release detection equipment. 

(b) Phase-in of requirements. Release 

detection requirements must, at a 

minimum, be applied at all UST 

systems, except for UST systems 

previously deferred under 

§ 280.10(a)(1), prior to the state’s 

submission of its state program approval 

or revision application. Release 

detection requirements must, at a 

minimum, be scheduled to be applied to 

previously deferred UST systems as 

follows: 

(1) Immediately when a new 

previously deferred UST system is 

installed, and 

(2) For any wastewater treatment tank 

system, airport hydrant fuel distribution 

system, or UST system with field 

constructed tanks installed prior to the 

state’s submission of its state program 

approval or revision application, within 

three years of the effective date of this 

section, as amended, or prior to the 

state’s submission of its state program 

approval or revision application, 

whichever date is later. 

(3) For any UST system that stores 

fuel solely for the use of emergency 

power generators that was installed 

prior to the state’s submission of its 

state program approval or revision 

application, within one year of the 

effective date of this section, as 

amended, or prior to the state’s 

submission of its state program approval 

or revision application, whichever date 

is later. 

(c) Requirements for Petroleum Tanks. 

All petroleum tanks must meet the 

following requirements: 

(1) All petroleum tanks must be 

sampled, tested, or checked for releases 

at least monthly, except that tanks (that 

is, tanks and piping protected from 

releases due to corrosion and equipped 

with both spill and overfill prevention 

devices) installed prior to the state’s 

submission of its State Program 

Approval or revision application may 

temporarily use monthly inventory 

control (or its equivalent) in 

combination with tightness testing (or 

its equivalent) conducted every five 

years for the first 10 years after the tank 

is installed; and 

(2) New or replaced petroleum tanks 

must use interstitial monitoring within 

secondary containment in accordance 

with § 9003(i)(1) of the Solid Waste 

Disposal Act except when the state 

requires manufacturer and installer 

financial responsibility and installer 

certification in accordance with 

§ 9003(i)(2) of the Solid Waste Disposal 

Act. 

(d) Requirements for Petroleum 

Piping. All underground piping 

attached to the tank that routinely 

conveys petroleum must conform to the 

following: 

(1) If the petroleum is conveyed under 

greater than atmospheric pressure: 

(i) The piping must be equipped with 

release detection that detects a release 

within an hour by restricting or shutting 

off flow or sounding an alarm; and 

(ii) The piping must have monthly 

monitoring applied or annual tightness 

tests conducted. 

(2) If suction lines are used: 

(i) Tightness tests must be conducted 

at least once every 3 years, unless a 

monthly method of detection is applied 

to this piping; or 

(ii) The piping is designed to allow 

the contents of the pipe to drain back 

into the storage tank if the suction is 

released and is also designed to allow 

an inspector to immediately determine 

the integrity of the piping system. 

(3) New or replaced petroleum piping 

must use interstitial monitoring within 

secondary containment in accordance 

with § 9003(i)(1) of the Solid Waste 

Disposal Act except when the state 

requires evidence of financial 

responsibility and certification in 

accordance with § 9003(i)(2) of the Solid 

Waste Disposal Act. 

(e) Requirements for Hazardous 

Substance UST Systems. All hazardous 

substance UST systems must use 

interstitial monitoring within secondary 

containment of the tanks and the 

attached underground piping that 

conveys the regulated substance stored 

in the tank. For hazardous substance 

UST systems installed prior to the 

state’s submission of its state program 

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approval or revision application, owners 

and operators can use another form of 

release detection if the owner and 

operator can demonstrate to the state (or 

the state otherwise determines) that 

another method will detect a release of 

the regulated substance as effectively as 

other methods allowed under the state 

program for petroleum UST systems and 

that effective corrective action 

technology is available for the 

hazardous substance being stored that 

can be used to protect human health 

and the environment. 

§ 281.34 Release Reporting, Investigation 

and Confirmation. 

In order to be considered no less 

stringent than the corresponding federal 

requirements for release reporting, 

investigation, and confirmation, the 

state must have requirements that 

ensure all owners and operators 

conform with the following: 

(a) Promptly investigate all suspected 

releases, including: 

(1) When unusual operating 

conditions, release detection signals and 

environmental conditions at the site 

suggest a release of regulated substances 

may have occurred or the interstitial 

space may have been compromised; and 

(2) When required by the 

implementing agency to determine the 

source of a release having an impact in 

the surrounding area; and 

(b) Promptly report all confirmed 

underground releases and any spills and 

overfills that are not contained and 

cleaned up. 

(c) Ensure that all owners and 

operators contain and clean up 

unreported spills and overfills in a 

manner that will protect human health 

and the environment. 

§ 281.35 Release Response and Corrective 

Action. 

In order to be considered no less 

stringent than the corresponding federal 

requirements for release response and 

corrective action, the state must have 

requirements that ensure: 

(a) All releases from UST systems are 

promptly assessed and further releases 

are stopped; 

(b) Actions are taken to identify, 

contain and mitigate any immediate 

health and safety threats that are posed 

by a release (such activities include 

investigation and initiation of free 

product removal, if present); 

(c) All releases from UST systems are 

investigated to determine if there are 

impacts on soil and ground water, and 

any nearby surface waters. The extent of 

soil and ground-water contamination 

must be delineated when a potential 

threat to human health and the 

environment exists. 

(d) All releases from UST systems are 

cleaned up through soil and ground 

water remediation and any other steps, 

as necessary to protect human health 

and the environment; 

(e) Adequate information is made 

available to the state to demonstrate that 

corrective actions are taken in 

accordance with the requirements of 

paragraphs (a) through (d) of this 

section. This information must be 

submitted in a timely manner that 

demonstrates its technical adequacy to 

protect human health and the 

environment; and 

(f) In accordance with § 280.67, the 

state must notify the affected public of 

all confirmed releases requiring a plan 

for soil and ground water remediation, 

and upon request provide or make 

available information to inform the 

interested public of the nature of the 

release and the corrective measures 

planned or taken. 

§ 281.36 Out-of-Service UST Systems and 

Closure. 

In order to be considered no less 

stringent than the corresponding federal 

requirements for temporarily closed 

UST systems and permanent closure, 

the state must have requirements that 

ensure UST systems conform with the 

following: 

(a) Removal from Service. All new 

and existing UST systems temporarily 

closed must: 

(1) Continue to comply with general 

operating requirements, release 

reporting and investigation, and release 

response and corrective action; 

(2) Continue to comply with release 

detection requirements if regulated 

substances are stored in the tank; 

(3) Be closed off to outside access; and 

(4) Be permanently closed if the UST 

system has not been protected from 

corrosion and has not been used in one 

year, unless the state approves an 

extension after the owner and operator 

conducts a site assessment. 

(b) Permanent Closure of UST 

Systems. All tanks and piping must be 

cleaned and permanently closed in a 

manner that eliminates the potential for 

safety hazards and any future releases. 

The owner or operator must notify the 

state of permanent UST system closures. 

The site must also be assessed to 

determine if there are any present or 

were past releases, and if so, release 

response and corrective action 

requirements must be complied with. 

(c) All UST systems taken out of 

service before the effective date of the 

federal regulations must permanently 

close in accordance with paragraph (b) 

of this section when directed by the 

implementing agency. 

§ 281.37 Financial Responsibility for UST 

Systems Containing Petroleum. 

(a) In order to be considered no less 

stringent than the federal requirements 

for financial responsibility for UST 

systems containing petroleum, the state 

requirements for financial responsibility 

for petroleum UST systems must ensure 

that: 

(1) Owners and operators have $1 

million per occurrence for corrective 

action and third-party claims in a timely 

manner to protect human health and the 

environment; 

(2) Owners and operators not engaged 

in petroleum production, refining, and 

marketing and who handle a throughput 

of 10,000 gallons of petroleum per 

month or less have $500,000 per 

occurrence for corrective action and 

third-party claims in a timely manner to 

protect human health and the 

environment; 

(3) Owners and operators of 1 to 100 

petroleum USTs must have an annual 

aggregate of $1 million; and 

(4) Owners and operators of 101 or 

more petroleum USTs must have an 

annual aggregate of $2 million. 

(b) States may allow the use of a wide 

variety of financial assurance 

mechanisms to meet this requirement. 

Each financial mechanism must meet 

the following criteria in order to be no 

less stringent than the federal 

requirements. The mechanism must: Be 

valid and enforceable; be issued by a 

provider that is qualified or licensed in 

the state; not permit cancellation 

without allowing the state to draw 

funds; ensure that funds will only and 

directly be used for corrective action 

and third party liability costs; and 

require that the provider notify the 

owner or operator of any circumstances 

that would impair or suspend coverage. 

(c) States must require owners and 

operators to maintain records that 

demonstrate compliance with the state 

financial responsibility requirements, 

and these records must be made readily 

available when requested by the 

implementing agency. 

§ 281.38 Lender Liability. 

(a) A state program that contains a 

security interest exemption will be 

considered to be no less stringent than, 

and as broad in scope as, the federal 

program provided that the state’s 

exemption: 

(1) Mirrors the security interest 

exemption provided for in 40 CFR part 

280, subpart I; or 

(2) Achieves the same effect as 

provided by the following key criteria: 

(i) A holder, meaning a person who 

maintains indicia of ownership 

primarily to protect a security interest in 

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a petroleum UST or UST system or 

facility or property on which a 

petroleum UST or UST system is 

located, who does not participate in the 

management of the UST or UST system 

as defined under § 280.10 of this 

chapter, and who does not engage in 

petroleum production, refining, and 

marketing as defined under § 280.200(b) 

of this chapter is not: 

(A) An ‘‘owner’’ of a petroleum UST 

or UST system or facility or property on 

which a petroleum UST or UST system 

is located for purposes of compliance 

with the requirements of 40 CFR part 

280; or 

(B) An ‘‘operator’’ of a petroleum UST 

or UST system for purposes of 

compliance with the requirements of 40 

CFR part 280, provided the holder is not 

in control of or does not have 

responsibility for the daily operation of 

the UST or UST system. 

(ii) [Reserved] 

(b) [Reserved] 

§ 281.39 Operator Training. 

In order to be considered no less 

stringent than the corresponding federal 

requirements for operator training, the 

state must have an operator training 

program that meets the minimum 

requirements of § 9010 of the Solid 

Waste Disposal Act. 

Subpart D—Adequate Enforcement of 

Compliance 

§ 281.41 Requirements for Enforcement 

Authority. 

(a) Any state agency administering a 

program must have the authority to 

implement the following remedies for 

violations of state program 

requirements: 

(1) To restrain immediately and 

effectively any person by order or by 

suit in state court from engaging in any 

unauthorized activity that is 

endangering or causing damage to 

public health or the environment; 

(2) To sue in courts of competent 

jurisdiction to enjoin any threatened or 

continuing violation of any program 

requirement; 

(3) To assess or sue to recover in court 

civil penalties as follows: 

(i) Civil penalties for failure to notify 

or for submitting false information 

pursuant to tank notification 

requirements must be capable of being 

assessed up to $5,000 or more per 

violation. 

(ii) Civil penalties for failure to 

comply with any state requirements or 

standards for existing or new tank 

systems must be capable of being 

assessed for each instance of violation, 

up to $5,000 or more for each tank for 

each day of violation. If the violation is 

continuous, civil penalties shall capable 

of being assessed up to $5,000 or more 

for each day of violation. 

(4) To prohibit the delivery, deposit, 

or acceptance of a regulated substance 

into an underground storage tank 

identified by the state to be ineligible for 

such delivery, deposit, or acceptance in 

accordance with § 9012 of the Solid 

Waste Disposal Act. 

(b) The burden of proof and degree of 

knowledge or intent required under 

state law for establishing violations 

under paragraph (a)(3) of this section, 

must be no greater than the burden of 

proof or degree of knowledge or intent 

that EPA must provide when it brings 

an action under Subtitle I of the Solid 

Waste Disposal Act. 

(c) A civil penalty assessed, sought, or 

agreed upon by the state enforcement 

agency(ies) under paragraph (a)(3) of 

this section must be appropriate to the 

violation. 

§ 281.42 Requirements for Public 

Participation. 

Any state administering a program 

must provide for public participation in 

the state enforcement process by 

providing any one of the following three 

options: 

(a) Authority that allows intervention 

analogous to Federal Rule 24(a)(2), and 

assurance by the appropriate state 

enforcement agency that it will not 

oppose intervention under the state 

analogue to Rule 24(a)(2) on the ground 

that the applicant’s interest is 

adequately represented by the State. 

(b) Authority that allows intervention 

as of right in any civil action to obtain 

the remedies specified in 281.41 by any 

citizen having an interest that is or may 

be adversely affected; or 

(c) Assurance by the appropriate state 

agency that: 

(1) It will provide notice and 

opportunity for public comment on all 

proposed settlements of civil 

enforcement actions (except where 

immediate action is necessary to 

adequately protect human health and 

the environment); 

(2) It will investigate and provide 

responses to citizen complaints about 

violations; and 

(3) It will not oppose citizen 

intervention when permissive 

intervention is allowed by statute, rule, 

or regulation. 

§ 281.43 Sharing of Information. 

(a) States with approved programs 

must furnish EPA, upon request, any 

information in state files obtained or 

used in the administration of the state 

program. This information includes: 

(1) Any information submitted to the 

state under a claim of confidentiality. 

The state must submit that claim to EPA 

when providing such information. Any 

information obtained from a state and 

subject to a claim of confidentiality will 

be treated in accordance with federal 

regulations in 40 CFR part 2; and 

(2) Any information that is submitted 

to the state without a claim of 

confidentiality. EPA may make this 

information available to the public 

without further notice. 

(b) EPA must furnish to states with 

approved programs, upon request, any 

information in EPA files that the state 

needs to administer its approved state 

program. Such information includes: 

(1) Any information that is submitted 

to EPA without a claim of 

confidentiality; and 

(2) Any information submitted to EPA 

under a claim of confidentiality, subject 

to the conditions in 40 CFR part 2. 

Subpart E—Approval Procedures 

§ 281.50 Approval Procedures for State 

Programs. 

(a) The following procedures are 

required for all applications, regardless 

of whether the application is for a 

partial or complete program, as defined 

in § 281.12, or final approval in 

accordance with § 281.11. 

(b) Before submitting an application 

to EPA for approval of a state program, 

the state must provide an opportunity 

for public notice and comment in the 

development of its underground storage 

tank program. 

(c) When EPA receives a state 

program application, EPA will examine 

the application and notify the state 

whether its application is complete, in 

accordance with the application 

components required in § 281.20. The 

180-day statutory review period begins 

only after EPA has determined that a 

complete application has been received. 

(d) The state and EPA may by mutual 

agreement extend the review period. 

(e) After receipt of a complete 

program application, the Administrator 

will tentatively determine approval or 

disapproval of the state program. EPA 

shall issue public notice of the tentative 

determination in the Federal Register; 

in enough of the largest newspapers in 

the state to attract statewide attention; 

and to persons on the state agency 

mailing list and any other persons who 

the agency has reason to believe are 

interested. Notice of the tentative 

determination must also: 

(1) Afford the public 30 days after the 

notice to comment on the state’s 

application and the Administrator’s 

tentative determination; and 

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(2) Include a general statement of the 

areas of concern, if the Administrator 

indicates the state program may not be 

approved; and 

(3) Note the availability for inspection 

by the public of the state program 

application; and 

(4) Indicate that a public hearing will 

be held by EPA no earlier than 30 days 

after notice of the tentative 

determination unless insufficient public 

interest is expressed, at which time the 

Regional Administrator may cancel the 

public hearing. 

(f) Within 180 days of receipt of a 

complete state program application, the 

Administrator must make a final 

determination whether to approve the 

state program after review of all public 

comments. EPA will give notice of its 

determination in the Federal Register 

and codify the approved state program. 

The notice must include a statement of 

the reasons for this determination and a 

response to significant comments 

received. 

§ 281.51 Revision of Approved State 

Programs. 

(a) Either EPA or the approved state 

may initiate program revision. Program 

revision may be necessary when the 

controlling federal or state statutory or 

regulatory authority is changed or when 

responsibility for the state program is 

shifted to a new agency or agencies. The 

state must inform EPA of any proposed 

modifications to its basic statutory or 

regulatory authority or change in 

division of responsibility among state 

agencies. EPA will determine in each 

case whether a revision of the approved 

program is required. Approved state 

programs must submit a revised 

application within three years of any 

changes to this part that requires a 

program revision. 

(b) Whenever the Administrator has 

reason to believe that circumstances 

have changed with respect to an 

approved state program or the federal 

program, the Administrator may 

request, and the state must provide, a 

revised application as prescribed by 

EPA. 

(c) The Administrator will approve or 

disapprove program revisions based on 

the requirements of this part and of 

Subtitle I pursuant to the procedures 

under this section, or under § 281.50 if 

EPA has reason to believe the proposed 

revision will receive significant negative 

comment from the public. 

(1) The Administrator must issue 

public notice of planned approval or 

disapproval of a state program revision 

in the Federal Register; in enough of the 

largest newspapers in the state to attract 

statewide attention; and by mailing to 

persons on the state agency mailing list 

and to any other persons who the 

agency has reason to believe are 

interested. The public notice must 

summarize the state program revision, 

indicate whether EPA intends to 

approve or disapprove the revision, and 

provide for an opportunity to comment 

for a period of 30 days. 

(2) The Administrator’s decision on 

the proposed revision becomes effective 

60 days after the date of publication in 

the Federal Register in accordance with 

paragraph (c)(1) of this section, unless 

significant negative comment opposing 

the proposed revision is received during 

the comment period. If significant 

negative comment is received, EPA 

must notify the state and within 60 days 

after the date of publication, publish in 

the Federal Register either: 

(i) A withdrawal of the immediate 

final decision, which will then be 

treated as a tentative decision in 

accordance with the applicable 

procedures of § 281.50(e) and (f); or 

(ii) A notice that contains a response 

to significant negative comments and 

affirms either that the immediate final 

decision takes effect or reverses the 

decision. 

(d) Revised state programs that 

receive approval must be codified in the 

Federal Register. 

Subpart F—Withdrawal of Approval of 

State Programs 

§ 281.60 Criteria for Withdrawal of 

Approval of State Programs. 

The Administrator may withdraw 

program approval when the Agency 

determines that a state no longer has 

adequate regulatory or statutory 

authority or is not administering and 

enforcing an approved program in 

accordance with this part. The state 

must have adequate capability to 

administer and enforce the state 

program. In evaluating whether such 

capability exists, the Agency will 

consider whether the state is 

implementing an adequate enforcement 

program by evaluating the quality of 

compliance monitoring and 

enforcement actions. 

§ 281.61 Procedures for Withdrawal of 

Approval of State Programs. 

(a) The following procedures apply 

when a state with an approved program 

voluntarily transfers to EPA those 

program responsibilities required by 

federal law. 

(1) The state must give EPA notice of 

the proposed transfer, and submit, at 

least 90 days before the transfer, a plan 

for the orderly transfer of all relevant 

program information necessary for EPA 

to administer the program. 

(2) Within 30 days of receiving the 

state’s transfer plan, EPA must evaluate 

the plan and identify any additional 

information needed by the federal 

government for program administration. 

(3) At least 30 days before the transfer 

is to occur, EPA must publish notice of 

the transfer in the Federal Register; in 

enough of the largest newspapers in the 

state to attract statewide attention; and 

to persons on appropriate state mailing 

lists. 

(b) The following procedures apply 

when the Administrator considers 

withdrawing approval. 

(1) When EPA begins proceedings to 

determine whether to withdraw 

approval of a state program (either on its 

own initiative or in response to a 

petition from an interested person), 

withdrawal proceedings will be 

conducted in accordance with 

procedures set out in 40 CFR 271.23(b) 

and (c), except for § 271.23(b)(8)(iii) to 

the extent that it deviates from 

requirements under § 281.60. 

(2) If the state fails to take appropriate 

action within a reasonable time, not to 

exceed 120 days after notice from the 

Administrator that the state is not 

administering and enforcing its program 

in accordance with the requirements of 

this part, EPA will withdraw approval 

of the state’s program. 

[FR Doc. 2011–29293 Filed 11–17–11; 8:45 am] 

BILLING CODE 6560–50–P 

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