```

[Federal Register Volume 80, Number 135 (Wednesday, July 15, 2015)]
[Rules and Regulations]
[Pages 41565-41683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15914]

[[Page 41565]]

Vol. 80

Wednesday,

No. 135

July 15, 2015

Part II

Environmental Protection Agency

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40 CFR Parts 280 and 281

Revising Underground Storage Tank Regulations--Revisions to Existing 
Requirements and New Requirements for Secondary Containment and 
Operator Training; Final Rule

Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / 
Rules and Regulations

[[Page 41566]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 280 and 281

[EPA-HQ-UST-2011-0301; FRL 9913-64-OSWER]
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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
making certain revisions to the 1988 underground storage tank (UST) 
regulation and to the 1988 state program approval (SPA) regulation. 
These changes establish Federal requirements that are similar to key 
portions of the Energy Policy Act of 2005 (EPAct); they also update the 
1988 UST and SPA regulations. Changes to the regulations 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; addressing UST 
systems deferred in the 1988 UST regulation; adding new release 
prevention and detection technologies; updating codes of practice; 
making editorial corrections and technical amendments; and updating 
state program approval requirements to incorporate these new changes. 
EPA thinks these changes will protect human health and the environment 
by reducing the number of releases to the environment and quickly 
detecting releases, if they occur.

DATES: This rule is effective October 13, 2015.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-HQ-UST-2011-0301. All documents in the docket are listed on the 
www.regulations.gov Web site. 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 www.regulations.gov or in paper copy at the OSWER Docket, EPA/DC, 
WJC West Building, 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 Federal holidays. The telephone number for 
the Public Reading Room is 202-566-1744, and the telephone number for 
the OSWER Docket is 202-566-0270.

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: 
mcdermott.elizabeth@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
    Does this action apply to me?
II. Authority
III. Background
    A. Changes to the UST Regulations
    B. History of the UST Laws and Regulations
    C. Potential Impact of This Regulation
    D. EPA's Process in Deciding Which Changes To Incorporate in the 
Regulations
    E. Implementation Timeframe
IV. Revisions to the Requirements for Owners and Operators of 
Underground Storage Tank Systems
    A. Establishing 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 Inspections
    4. Secondary Containment Tests
    5. Release Detection Equipment Tests
    C. Addressing Deferrals
    1. UST Systems Storing Fuel Solely for Use by Emergency Power 
Generators--Require Release Detection
    2. Airport Hydrant Fuel Distribution Systems and UST Systems 
With Field-Constructed Tanks
    3. Wastewater Treatment Tank Systems That Are Not Part of a 
Wastewater Treatment Facility Regulated Under Sections 402 or 307(b) 
of the Clean Water Act
    4. 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
    4. Compatibility
    5. Improving Repairs
    6. Vapor Monitoring and Groundwater Monitoring
    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 Corrections and Technical Amendments
    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 Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations 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
    K. Congressional Review Act

I. General Information

Does this action apply to me?

    In the table below, EPA is providing a list of potentially affected 
entities using North American Industry Classification System (NAICS) 
codes. However, this final 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 FOR FURTHER INFORMATION CONTACT section.

[[Page 41567]]

      Industry Sectors Potentially Affected by the Final Regulation
------------------------------------------------------------------------
        Industry sector                         NAICS code
------------------------------------------------------------------------
Retail Motor Fuel Sales........  447.
Commercial (wholesale trade,     42, 44-45, 72 (excluding 447).
 retail trade, accommodation,
 and food services).
Institutional (hospitals only).  622.
Manufacturing..................  31-33.
Transportation (air, water,      481, 483-486, 48811.
 truck, transit, pipeline, and
 airport operations).
Communications And Utilities     5171, 2211.
 (wired telecommunications
 carriers; and electric power
 generation, transmission, and
 distribution).
Agriculture (crop and animal     111, 112.
 production).
------------------------------------------------------------------------

II. Authority

    EPA is revising these regulations under the authority of sections 
2002, 9001, 9002, 9003, 9004, 9005, 9006, 9007, 9010, and 9012 of the 
Solid Waste Disposal Act (SWDA) of 1965, as amended (commonly known as 
the Resource Conservation and Recovery Act (RCRA)) [42 U.S.C. 6912, 
6991, 6991(a), 6991(b), 6991(c), 6991(d), 6991(e), 6991(f), 6991(i), 
and 6991(k)].

III. Background

A. Changes to the UST Regulations

    After reviewing and incorporating comments received during the five 
month public comment period, EPA is finalizing certain changes to the 
1988 UST regulation in 40 CFR part 280. EPA is also revising its SPA 
regulation in 40 CFR part 281 to incorporate the changes in 40 CFR part 
280.
    These revisions strengthen the 1988 UST regulation by increasing 
the emphasis on properly operating and maintaining equipment. The 1988 
UST regulation required owners and operators to have spill, overfill, 
and release detection equipment in place for their UST systems, 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. 
These revisions require that UST equipment is operated and maintained 
properly, which will improve environmental protection. These revisions 
also acknowledge improvements in technology over the last 26 years, 
including the ability to detect releases from UST systems deferred in 
the 1988 UST regulation.
    EPA is revising the 1988 UST regulation to:
     Establish federal requirements that are similar to certain 
key provisions of the Energy Policy Act of 2005;
     Ensure owners and operators properly operate and maintain 
their UST systems;
     Address UST systems deferred in the 1988 UST regulation;
     Include updates to current technology and codes of 
practices;
     Make technical and editorial corrections; and
     Update the SPA regulation to address the changes listed 
above.
    In 1988, EPA first promulgated the UST regulation (40 CFR part 280) 
to prevent, detect, and clean up petroleum releases into the 
environment. The 1988 UST regulation 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 of 2005 amended Subtitle I of SWDA, the 
statute that authorized the UST program. Key Energy Policy Act 
provisions (such as secondary containment and operator training) apply 
to all states and United States' territories, hereafter referred to as 
states, receiving federal Subtitle I money under SWDA, regardless of 
their state program approval status, but do not apply in Indian 
country. The United States has a unique legal relationship with 
federally recognized Indian tribes. This government to government 
relationship includes recognizing the rights of tribes as sovereign 
governments with the right to self-determination 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 regulation. These 
revisions also fulfill objectives in EPA's August 2006 UST Tribal 
Strategy,\1\ where both EPA and tribes recognized the importance of 
requirements that ensure parity in program implementation among states 
and in Indian country. 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.
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    \1\ 2006 Tribal Strategy, http://epa.gov/oust/fedlaws/tribalst.htm.
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    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 6,000 releases are discovered each year as of 
FY 2013.\2\ Lack of proper operation and maintenance of UST systems is 
the 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.
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    \2\ Semi-Annual Report Of UST Performance Measures, End Of 
Fiscal Year 2013, http://epa.gov/oust/cat/camarchv.htm.
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    EPA relied on two draft causes of releases studies to help support 
this final UST regulation. Petroleum Releases at Underground Storage 
Tank Facilities in Florida contains release data on 512 releases from 
new and

[[Page 41568]]

upgraded tanks in Florida.\3\ 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.\4\ Taken together, these draft studies provide information on 
1,092 releases in 24 of 50 states. The data in the two studies 
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 
passage of the 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 final UST regulation because that information did not change as a 
result of the peer review process. These studies are available in the 
docket for this final action.
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    \3\ Petroleum Releases At Underground Storage Tank Facilities In 
Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \4\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
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    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 ensure they are still working as intended. These 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 requires owners and operators 
to use equipment that could help prevent releases. These revisions 
highlight the importance of operating and maintaining UST equipment so 
releases to the environment are prevented or quickly detected.
    This final UST regulation addresses UST systems deferred in the 
1988 UST regulation by removing the deferral and regulating UST systems 
with field-constructed tanks, airport hydrant fuel distribution systems 
that meet the UST definition, and UST systems storing fuel solely for 
use by emergency power generators. Note that aboveground storage tanks 
associated with UST systems with field-constructed tanks and airport 
hydrant fuel distribution systems that meet the UST definition are 
partially excluded in this final UST regulation. EPA is partially 
excluding wastewater treatment tank systems that are not part of a 
wastewater treatment facility regulated under sections 402 or 307(b) of 
the Clean Water Act, USTs containing radioactive material, and 
emergency generator UST systems at nuclear power generation facilities 
regulated by the Nuclear Regulatory Commission. See section IV.C, 
Addressing Deferrals, for more information.
    EPA is revising the 1988 SPA regulation (40 CFR part 281) to 
address the changes to 40 CFR part 280. By doing so, states will 
generally need to adopt the 40 CFR part 280 changes finalized today in 
order to obtain or retain SPA.
    Please note that, although not a part of this final UST regulation, 
owners and operators may also be subject to other requirements related 
to underground storage tank systems. For example, EPA's Office of Air 
and Radiation has national emission standards for hazardous air 
pollutants for various source categories, including gasoline dispensing 
facilities (see 40 CFR part 63). These standards include some testing 
for UST systems, depending on the monthly throughput of the facility.
    Finally, EPA allows owners and operators the flexibility to 
maintain either paper or electronic records to demonstrate compliance 
with this final UST regulation. EPA encourages owners and operators to 
maintain records electronically, which promotes innovation \5\ and 
simplifies compliance by using 21st century technology tools.\6\
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    \5\ Executive Order 13563, ``Improving Regulation And Regulatory 
Review,'' Section 3, see http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
    \6\ EPA Budget in Brief, February 2012, p. 4, see http://
yosemite.epa.gov/sab/sabproduct.nsf/
2B686066C751F34A852579A4007023C2/$File/FY2013_BIB.pdf.
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B. 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 SWDA, commonly referred 
to as RCRA. 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 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 UST systems and required owners and 
operators of existing UST systems 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 through 1993, depending on when their UST 
systems were installed). Finally, owners and operators were required to 
demonstrate 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 to 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.\7\ The operator training and secondary containment requirements 
are two major pieces of the Energy Policy Act that did not apply in 
Indian country, but will now apply with publication of this final UST 
regulation.
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    \7\ EPA guidelines for the Energy Policy Act can be found at: 
http://epa.gov/oust/fedlaws/epact_05.htm.
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C. Potential Impact of This Regulation

    This final UST regulation will improve parity in program 
implementation among states and in Indian country. This regulation is 
adding to the federal UST regulation

[[Page 41569]]

certain requirements, which will apply in Indian country. These 
requirements are similar to the Energy Policy Act's operator training 
and secondary containment requirements, which apply in states receiving 
federal Subtitle I money from EPA. 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 release detection equipment. These revisions 
also reflect improvements in technology that allow for the ability to 
prevent and quickly detect releases for many tank systems currently 
deferred from regulation under Subtitle I.
    The regulatory changes finalized today impose costs to owners and 
operators of existing regulated UST systems and owners and operators of 
USTs deferred in the 1988 UST regulation, as well as costs associated 
with state review of the 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 Final Revisions to EPA's Underground Storage Tank Regulations, 
which is available in the docket for this action. Numerous commenters 
submitted input relaying their concerns about the costs and feasibility 
of specific requirements in the 2011 proposed UST regulation. EPA 
considered these comments and adjusted this final UST regulation to 
alleviate some of the burden on owners and operators. For example, EPA 
is requiring testing of spill prevention equipment every three years 
instead of annually. EPA also adjusted some of the assumptions 
underlying the RIA to reflect information received from commenters. For 
example, several commenters provided water disposal costs associated 
with spill bucket testing. While the RIA for the 2011 proposed UST 
regulation assumed these costs were part of the spill prevention 
testing cost, EPA adjusted this assumption to reflect that, in some 
cases, owners and operators will incur additional costs to dispose of 
the water. A summary of these impacts is provided in section VI, 
Overview of Estimated Costs and Benefits, and in the table below. Note 
that due to data and resource constraints, EPA was unable to quantify 
or monetize some of this final UST regulation's benefits, including 
avoidance of human health risks, groundwater protection, ecological 
benefits, and mitigation of acute exposure events and large-scale 
releases (e.g., releases from airport hydrant distribution systems and 
UST systems with field-constructed tanks).

                                    Costs and Benefits of the UST Regulation
                                               [2012$ Millions] *
----------------------------------------------------------------------------------------------------------------
                                                 7% discount rate                    3% discount rate
----------------------------------------------------------------------------------------------------------------
Total Annual Social Costs................  $160........................  $160.
Total Annual Avoided Costs...............  $310........................  $360.
                                           Range: ($120-$530)..........  Range: ($130-$610).
Net Cost (Savings) To Society............  ($160)......................  ($200).
                                           Range: $40-($370)...........  Range: $25-($450).
----------------------------------------------------------------------------------------------------------------
* Totals may not add up due to rounding

    EPA also prepared a risk assessment for the 2011 proposed UST 
regulation titled Risk Analysis to Support Potential Revisions to 
Underground Storage Tank (UST) Regulations. The risk assessment 
examined potential impacts to groundwater and subsequent chemical 
transport, exposure, and risk. EPA decided not to spend resources to 
finalize the risk assessment through a formal peer review process, 
because the results from the risk assessment did not materially impact 
the RIA. Changes brought about by this final UST regulation are not 
expected to significantly alter these outcomes. The risk assessment 
developed for the 2011 proposed UST regulation is available for review 
in the docket.

D. 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 regulation. 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 this final UST regulation achieves this 
parity.
    For the past 26 years, the 1988 UST regulation worked well to 
provide environmental protection. However, over 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 UST regulation to 
reflect current technologies and ensuring release prevention and 
release detection equipment are properly operated and maintained have 
surfaced as areas needing improvement and are included as part of this 
final UST regulation.
    Throughout the regulatory development process, 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 action, EPA reached out 
to stakeholders involved in all aspects of the tank program, provided 
multiple opportunities for sharing ideas, and kept stakeholders 
informed of progress.
    As a result of the information collected during our extensive 
outreach to stakeholders, EPA published proposed regulations in the 
November 2011 Federal Register.\8\ In order to ensure all stakeholders 
had an opportunity to comment, EPA provided a five month public comment 
period on the proposed UST and SPA regulations.
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    \8\ Proposed Rule Revising the Underground Storage Tanks 
Regulation. Federal Register. November 18, 2011. https://www.federalregister.gov/articles/2011/11/18/2011-29293/revising-underground-storage-tank-regulations-revisions-to-existing-requirements-and-new.
---------------------------------------------------------------------------

    A number of commenters provided general input on EPA's 2011 
proposal to update the UST and SPA regulations. Many commenters 
appreciated the extensive stakeholder outreach EPA conducted prior to 
drafting the proposed changes to the UST and SPA

[[Page 41570]]

regulations. A few commenters believed EPA's outreach was not adequate. 
EPA conducted extensive stakeholder outreach before publishing the 
proposal; we held more than 100 meetings with stakeholders during the 
two years prior to issuing the 2011 proposed UST and SPA regulations. 
To further understand comments and concerns, EPA continued to meet with 
all interested stakeholders during and after the five month public 
comment period.
    Most commenters expressed support for the general revisions to the 
1988 UST and SPA regulations. They supported updating the regulations 
because technology has changed a great deal since the 1980s. Many 
commenters provided specific concerns on particular topics in the 2011 
proposed UST and SPA regulations. We discuss these comments throughout 
the preamble for this action. Several commenters opposed the changes to 
the regulations due to concerns about potential costs on owners, 
especially small businesses. A few commenters requested EPA withdraw 
the entire proposal and conduct a small business advocacy review panel 
under the Regulatory Flexibility Act. EPA carefully considered the 
potential impacts of the proposal on small businesses and determined 
that a small business panel was not required. EPA also considered all 
of the comments submitted during the public comment period, including 
those concerns regarding the potential costs on small businesses, and 
worked to minimize those costs by making certain changes to the final 
regulations. EPA did not change this final UST and SPA regulations when 
comments were beyond the scope of the regulations or beyond EPA's 
statutory authority.

E. Implementation Timeframe

    This final UST regulation aligns the implementation time frames for 
the new operator training, operation and maintenance, and previously 
deferred UST system requirements. The table below provides the 
implementation time frames for each of the new requirements.

             Implementation Time Frames for New Requirements
------------------------------------------------------------------------
              New requirement                 Implementation time frame
------------------------------------------------------------------------
Flow restrictors in vent lines may no        Owners and operators must
 longer be used to meet the overfill          begin meeting these
 prevention requirement at new                requirements on the
 installations and when an existing flow      effective date of this
 restrictor is replaced.                      final UST regulation.
Testing following a repair.................
Closure of internally lined tanks that fail
 the internal lining inspection and cannot
 be repaired according to a code of
 practice.
Notification of ownership changes.
Demonstrating compatibility.
For airport hydrant fuel distribution
 systems and UST systems with field-
 constructed tanks:
     Notification and financial
     responsibility.\9\
     Release reporting.
     Closure.......................
Operator training..........................  Owners and operators must
For previously deferred UST systems:.......   begin meeting these
 Subpart D for UST systems that       requirements three years
 store fuel solely for use by emergency       after the effective date
 power generators.                            of this final UST
                                              regulation.
     Subpart K (except               ...........................
     notification, financial
     responsibility, release reporting, and
     closure) for airport hydrant fuel
     distribution systems and UST systems
     with field-constructed tanks.
Spill prevention equipment testing.........  Owners and operators must
Overfill prevention equipment inspections..   conduct the first test or
Containment sump testing for sumps used for   inspection within three
 piping interstitial monitoring.              years after the effective
                                              date of this final UST
                                              regulation.
Release detection equipment testing.
Walkthrough inspections.
------------------------------------------------------------------------

    EPA proposed different implementation time frames for the various 
requirements, and for several requirements, a phased in approach based 
on tank age. Based on commenter input, EPA is not using the phased in 
approach and instead is requiring owners and operators to meet the 
requirements as described in the implementation table above. In 
addition, with one exception EPA is aligning implementation of the 
requirements in this final UST regulation to begin on the effective 
date of the UST regulation or three years after the effective date of 
the UST regulation. The requirements implemented on the effective date 
of the final UST regulation are those that either do not require 
significant education and outreach or apply to new installations, 
repairs, or releases. EPA is allowing up to three years for owners and 
operators to implement the requirements that require significant 
outreach, equipment to be upgraded or installed (such as for previously 
deferred UST systems), or scheduling and testing. Three years allows 
ample time for implementing agencies to educate owners and operators 
about this new requirements and allows owners and operators to schedule 
testing. The exception to implementing the requirements immediately or 
in three years is that EPA is implementing the secondary containment 
requirement 180 days after the effective date of the UST regulation. 
The 180 day time frame allows flexibility for those owners and 
operators who have concrete plans but have not yet applied for or 
obtained approvals or permits for a new UST system installation.
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    \9\ Note that EPA is requiring owners and operators to also 
submit a one-time notification of existence for these UST systems 
within 3 years of the effective date of this final UST regulation. 
Owners and operators must demonstrate financial responsibility when 
they submit the one-time notification form
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IV. Revisions to the Requirements for Owners and Operators of 
Underground Storage Tank Systems

    The following sections describe this final UST regulation, starting 
with establishing new requirements for operator training and secondary 
containment. The next four sections

[[Page 41571]]

address changes to the 1988 UST regulation, organized by topic: 
Additional requirements for operation and maintenance; addressing UST 
systems deferred in the 1988 UST regulation; 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.

A. Establishing Federal Requirements for Operator Training and 
Secondary Containment

1. Operator Training
    This final UST regulation adds a new subpart J, which contains 
operator training requirements to ensure properly trained individuals 
operate all regulated UST systems. The operator training provision of 
the Energy Policy Act of 2005 requires implementing agencies, as a 
condition of receiving federal Subtitle I money, develop state-specific 
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.\10\ All states are implementing or 
plan to implement operator training. The EPAct did not specifically 
require operator training in Indian country. To bring UST systems in 
Indian country to the same level of protection as UST systems in 
states, this final UST regulation implements operator training 
requirements.
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    \10\ Grant Guidelines To States For Implementing The Operator 
Training Provision Of The Energy Policy Act Of 2005: www.epa.gov/oust/fedlaws/optraing.htm.
---------------------------------------------------------------------------

    This final UST regulation closes the gap in coverage and ensures 
all operators designated as Class A, B, or C operators are trained 
according to their level of responsibility. Sufficiently training 
designated UST operators will increase compliance with regulatory 
requirements. In addition, operator training should decrease UST system 
releases by educating Class A, B, and C operators about their UST 
system requirements and result in greater protection of human health 
and the environment.
    The operator training requirements in this final UST regulation are 
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 have a minimum level of knowledge about their UST system 
requirements.
Definitions
    EPA is adding definitions for the three operator classes requiring 
training to distinguish them from the term operator originally defined 
in the 1988 UST regulation and maintained in this final UST regulation. 
Only if Class A, B, or C operators meet the definition of operator will 
they be subject to the same responsibilities and liabilities as an 
operator. EPA's definitions of Class A, B, and C operators do not 
relieve UST system owners and operators from legal responsibility for 
complying with the UST regulation. EPA based the three operator class 
definitions on duties each typically perform at UST facilities. 
Commenters on the 2011 proposed UST regulation indicated this final UST 
regulation should further differentiate Class A, B, and C operators 
from EPA's definition of operator. EPA agrees with commenters and is 
changing the title of Sec.  280.241 to Designation of Class A, B, and C 
operators in the final UST regulation. This change correctly identifies 
the individuals who must be designated.
    With the exception of the definition for the Class C operator, the 
operator class definitions remain unchanged from the 2011 proposed UST 
regulation. Several commenters pointed out that UST system owners and 
operators were, at the time of the 2011 proposed UST regulation, using 
contractors to perform Class C operator functions. Some commenters 
believed EPA was restricting the use of a contractor as a Class C 
operator since the proposal required a Class C operator to be an 
employee. EPA agrees; we are removing the restriction. EPA does not 
intend for the operator training requirements to restrict UST system 
owners and operators who are using contractors to operate their UST 
systems.
    EPA added a definition for training program in the 2011 proposed 
UST regulation; we are modifying it in this final UST regulation. It is 
important that training programs for Class A, B, and C operators 
include both sharing information and evaluating knowledge. Several 
commenters requested clarification on how EPA expected knowledge to be 
verified. To address these requests, EPA changed the definition of 
training program by adding the phrase ``through testing, practical 
demonstration, or another approach acceptable to the implementing 
agency.'' This addition clarifies the definition and makes it 
consistent with how the term is used in this final UST regulation.
How Operators Are Designated
    This final UST regulation indicates how UST owners and operators 
are to designate the three operator classes for their facilities. UST 
owners and operators must designate at least one Class A and B operator 
at each facility. Class A and B operators may provide training to Class 
C operators, which should help UST owners and operators comply with 
this requirement. The UST owner and operator must ensure Class C 
operator training is documented.
    Because Class C operators' duties typically require them to provide 
initial responses to emergencies, individuals who meet the Class C 
operator definition must be designated as such and trained in UST 
system emergency response--for example response to release detection 
alarms, spills, or releases. EPA received several comments on the 2011 
proposed UST regulation requesting we require only one Class C operator 
be designated. The final UST regulation requires all individuals who 
meet the definition of Class C operator be trained. EPA maintains that 
the initial response to emergencies provided by this operator class is 
important to environmental protection. Requiring training for all 
individuals who meet the Class C operator definition will increase the 
likelihood UST system emergencies are quickly and appropriately 
addressed. This does not mean all workers need to be trained. For 
example, numerous workers at convenience stores do not control or 
monitor dispensing or sale of petroleum products, nor are they 
responsible for initial alarms. As a result, it is unnecessary to 
designate and train these individuals to meet Class C operator training 
requirements.
    In addition, EPA acknowledges some readers might misinterpret that 
control of the dispensing operation described in the definition of the 
Class C operator applies to anyone fueling a vehicle. The level of UST 
system control and responsibility of individuals who must be trained 
excludes customers who are pumping product into their vehicles. For 
example, police officers using an unmanned facility would not have to 
meet Class C operator training requirements unless they are 
responsible, as specifically tasked by UST system owners and operators, 
to respond to emergencies and alarms caused by spills or releases from 
the UST system.
    In the preamble to the 2011 proposed UST regulation, EPA 
acknowledged that many UST owners and operators might

[[Page 41572]]

want to designate one person at an UST facility to fulfill more than 
one class of operator. This final UST regulation allows one person to 
serve in multiple operator classes; however, that person must be 
trained for each class designated.
    EPA is aware owners and operators rely on contractors to perform 
various UST system tasks, including those of Class A, B, and C 
operators. Because of the current use of contractors, EPA is allowing 
UST owners and operators to designate contractors as their Class A, B, 
and C operators, as long as they are trained in all areas for the class 
of operator designated. UST owners and operators must maintain 
documentation containing individual names (not just company names) of 
Class A, B, and C operators. This will allow implementing agencies to 
use individual names, rather than company names, when verifying 
training, retraining, and refresher training.
Who Must Be Trained
    This final UST regulation requires training for designated Class A, 
B, and C operators at UST systems regulated under Subtitle I. This 
includes UST systems at attended and unattended facilities. An 
unattended UST facility means a Class A, B, or C operator might not be 
present when a facility is operating. Nonetheless, even for unattended 
UST facilities, owners and operators must designate and train Class A, 
B, and C operators.
Requirements for Operator Training
    In the operator training grant guidelines for states, EPA based the 
three operator classes on duties each typically perform at UST 
facilities. Building on that, this final UST regulation requires each 
person designated in an operator class to participate in a specific 
training program or pass an examination comparable to the training 
program.
     For Class A operators, the training program must teach and 
evaluate their knowledge to make informed decisions regarding 
compliance and determine whether appropriate people are performing the 
operation, maintenance, and recordkeeping requirements for UST systems.
     For Class B operators, the training program must teach and 
evaluate their knowledge and skills to implement UST regulatory 
requirements on typical UST system components or site-specific 
equipment at UST facilities.
     For Class C operators, the training program must teach and 
evaluate their knowledge to take appropriate action, including 
notifying appropriate authorities, in response to emergencies or alarms 
caused by spills or releases from UST systems.
     For all operator classes, the test is based on the 
training program and evaluates the minimum knowledge required for the 
operator class.
    EPA received several comments on the description of Class C 
operator training requirements. One commenter suggested EPA should 
clarify the scope of emergencies a Class C operator is trained on. This 
final UST regulation requires Class C operators receive training on 
emergencies or alarms caused by spills or releases from operating UST 
systems. EPA also agrees with the comment regarding Class C operator 
training avoiding triggering the Hazardous Waste Operations and 
Emergency Response (HAZWOPER) standard. HAZWOPER is the United States' 
recognized standard of safety requirements employers and their 
subcontractors or public sector responders must meet in order to 
conduct cleanups or emergency response operations. The level of 
training in this standard is beyond that which EPA intends for Class C 
operators. This final UST regulation modifies the training requirements 
for Class C operators and clarifies that appropriate actions Class C 
operators can take include notifying appropriate authorities.
    For each class of operator, EPA considered developing specific 
training curricula prescribing length of training, topic areas, and 
trainer qualifications. Instead, this final UST regulation provides 
general criteria and requirements, because they provide flexibility 
while ensuring each class of operator is trained in a way that is 
comparable to EPA's operator training grant guidelines for states. EPA 
also modified the lists of training requirements for Class A and B 
operators from those identified in the 2011 proposal. The modifications 
made it clearer that new operation and maintenance inspection and 
testing, and compatibility demonstration requirements must be covered 
by operator training programs and comparable examinations.
    EPA received several comments regarding restrictions on who may 
develop and administer the evaluation component of training, as well as 
restrictions on who may train Class A and B operators. This final UST 
regulation removes those restrictions because they could prohibit in-
house and other potentially viable training. EPA supports a variety of 
operator training approaches. However, for retraining, EPA is revising 
language in Sec.  280.244 to address conflicts of interest. This final 
UST regulation requires the training program or comparable examination 
to be developed or administered by an independent organization, the 
implementing agency, or a recognized authority. These retraining 
restrictions will help address any ineffective training approaches.
    This final UST regulation allows a variety of ways to train 
operators, including classroom, computer based, hands on, and any 
combination of these. In lieu of completing a training program, Class 
A, B, or C operators can pass a comparable examination--such as 
classroom, Internet, or computer based--that meets the requirements for 
operator training described in this final UST regulation.
When Designated Operators Must Complete Operator Training
    This final UST regulation requires UST owners and operators ensure 
all Class A, B, and C operators successfully complete a training 
program or a comparable examination within three years of the effective 
date of this final UST regulation. EPA proposed a phased in approach 
over three years, based on UST installation dates because older USTs 
potentially pose a greater risk to the environment and Class A, B, and 
C operators of those systems should be trained first. EPA received 
comments strongly indicating EPA should not phase in the operator 
training requirements. EPA agrees with commenters that it is less 
confusing to establish a single compliance date for this requirement. 
EPA is aligning implementation of operator training with the three year 
inspection requirement, which will make it easier for UST system owners 
and operators to comply.
    Consistent with EPA's operator training grant guidelines, new 
operators designated after the three year implementation period must be 
trained as follows:
     Class A and B operators must be trained within 30 days of 
assuming duties
     Class C operators must be trained before they assume their 
duties because they must be able to immediately respond to emergencies
Retraining
    Class A and B operators are responsible for ensuring their UST 
systems are compliant. Generally, Class A and B operators need to be 
retrained if the UST systems they are responsible for are determined to 
be out of compliance. At a minimum, retraining must cover those areas 
the

[[Page 41573]]

implementing agency determines are out of compliance. Retraining must 
be completed within 30 days of the implementing agency's final 
determination of noncompliance. This final UST regulation allows 
designated operators to take annual refresher training in lieu of 
retraining, as long as all training areas required by regulation are 
covered. Designated operators must be subject to the annual refresher 
training in place at the time of the violation.
    This final UST regulation also allows implementing agencies to 
waive the retraining requirement. Unless waived, Class A and B 
operators must complete retraining according to Sec.  280.244. EPA 
recommends the waiver be in writing. In waiving the requirement, EPA 
expects the implementing agency to consider factors such as the 
severity and areas of noncompliance. For example, retraining should not 
be required for equipment found inoperative during an inspection if one 
of the following apply: The owner and operator was unaware of the 
problem and operation and maintenance records indicate the equipment 
was operating during the most recent test or inspection; or the owner 
or operator is aware of the problem and has scheduled a timely repair. 
In those instances where UST system noncompliance violations do not 
warrant retraining, EPA encourages implementing agencies to provide 
information about the compliance issue to Class A and B operators so 
they are able to return their facilities to compliance. This provides 
greater flexibility for UST owners and operators to meet the retraining 
requirement. This final UST regulation is consistent with EPA's 
retraining requirement for noncompliance with significant operational 
compliance requirements and an annual refresher training allowance in 
our operator training grant guidelines for states.
    This final UST regulation addresses comments about the terms 
independent trainer and independent organization in the retraining 
requirement at Sec.  280.244. In this section, EPA is requiring that a 
training program or comparable examination be developed, administered, 
or both by an independent organization, the implementing agency, or 
recognized authority. A recognized authority includes, but is not 
limited to, tribes recognized by the U.S. Department of Interior Bureau 
of Indian Affairs. The development, administration, or both by an 
independent organization applies to all training approaches (classroom, 
Internet based, testing, etc.) and provides sufficient control for the 
implementing agency to address conflict of interest and other concerns 
during retraining.
    EPA considered requiring retraining when UST facilities change 
equipment, but decided this would be a significant burden on both the 
regulated community and implementing agencies. However, if an UST 
system is out of compliance because of an equipment change, EPA is 
requiring that UST owners and operators ensure Class A and B operators 
are retrained as discussed above.
Documentation
    This final UST regulation requires owners and operators maintain 
records on currently designated Class A, B, and C operators, rather 
than records on all Class A, B, and C operators for the previous three 
years, as proposed. EPA is requiring owners and operators maintain 
basic information to document Class A, B, and C operators and confirm 
they are appropriately trained. For example, classroom training records 
must be signed by the trainer and include information about the 
training company; computer based training records do not require a 
signature, but must indicate the name of the training program and the 
Web address, if Internet based. This final UST regulation also modifies 
Sec.  280.245(b)(1) by clarifying that the requirement for a record of 
training is also applicable when Class A or B operators train Class C 
operators. UST owners and operators must document verification of 
training or retraining for each class of operator. Owners and operators 
must maintain records verifying training or retraining as long as Class 
A, B, and C operators are designated at the facility.
2. Secondary Containment
    This final UST regulation adds new requirements for secondary 
containment and interstitial monitoring of new and replaced tanks and 
piping along with under-dispenser containment (UDC) of new dispenser 
systems. Data from release sites show a higher number of releases from 
single walled tanks and piping when compared to secondarily contained 
systems.11 12 These new requirements will prevent regulated 
substances from reaching the environment and ensure a consistent level 
of environmental protection for regulated UST systems across the United 
States.
---------------------------------------------------------------------------

    \11\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \12\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
---------------------------------------------------------------------------

    The Energy Policy Act of 2005 requires implementing agencies, as a 
condition of receiving federal Subtitle I money, implement additional 
measures to protect groundwater. Under EPAct, implementing agencies' 
choices to protect groundwater are: Secondary containment (including 
UDC); or financial responsibility for manufacturers and installers (and 
installer certification). All states are implementing or plan to 
implement secondary containment. The EPAct did not specifically require 
additional measures to protect groundwater in Indian country. To bring 
UST systems in Indian country to the same level of environmental 
protection as UST systems in states, this final UST regulation 
implements secondary containment requirements for new and replaced 
tanks and piping along with UDC underneath all new dispenser systems.
    The EPAct requires states that receive federal Subtitle I money 
(and choose the secondary containment option) to have secondary 
containment and UDC 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.\13\ However, EPA is requiring 
all new and replaced tanks and piping to install secondary containment 
and new dispenser systems to install UDC for these reasons:
---------------------------------------------------------------------------

    \13\ Title XV, Subtitle B, Section 1530 of Energy Policy Act of 
2005, Public Law 109-58, August 8, 2005.
---------------------------------------------------------------------------

     Nearly all new and replaced tanks and piping are installed 
within 1,000 feet of an existing community water system (CWS) or 
potable drinking water well (PDWW). An UST listed with a commercial 
ownership type (i.e., gas station) is typically 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. In addition, privately owned facilities (i.e., fleet 
fueling for non-marketers) are generally 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.; 
\14\
---------------------------------------------------------------------------

    \14\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.
---------------------------------------------------------------------------

     Some implementing agencies that require secondary 
containment only

[[Page 41574]]

within 1,000 feet of a CWS or PDWW informed EPA that installations of 
single walled tanks or piping are not occurring; and
     Secondary containment for all new and replaced tanks and 
piping along with UDC for new dispenser systems will help protect other 
sensitive areas, such as designated source water protection areas, 
natural springs, and surface waters.
    The EPAct requires under-dispenser containment underneath new motor 
fuel dispenser systems at UST systems regulated under 40 CFR part 280. 
However, EPA is aware of a small number of dispenser systems, such as 
kerosene dispensers, that do not dispense motor fuel. Small releases 
can occur at these dispensers in the same manner as they occur at motor 
fuel dispensers.15 16 17 Therefore, this final UST 
regulation requires owners and operators install UDC underneath new 
dispenser systems at UST systems regulated under 40 CFR part 280, 
irrespective of whether they dispense motor fuel.
---------------------------------------------------------------------------

    \15\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \16\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
    \17\ Frequency And Extent Of Dispenser Releases At Underground 
Storage Tank Facilities In South Carolina (EPA-510-R-04-004, 
September 2004). http://epa.gov/oust/pubs/dispenser.htm.
---------------------------------------------------------------------------

    The secondary containment requirement applies to new or replaced 
underground tanks and piping regulated under Subtitle I, except those 
excluded by regulation in Sec.  280.10(b) and those partially excluded 
by regulation in Sec.  280.10(c). Petroleum and hazardous substance 
USTs must meet the secondary containment requirement with the 
corresponding use of interstitial monitoring for release detection. The 
1988 UST regulation allowed 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 removing 
the language allowing variances for new installations from this final 
UST regulation.
    EPA is requiring 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; will 
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 requirements for secondarily 
contained hazardous substance tanks in Sec.  280.42 and are necessary 
to help prevent releases to the environment.
    EPA is not requiring secondary containment for piping that meets 
the requirements of Sec.  280.41(b)(2)(i) through (v), sometimes called 
safe suction piping, because such piping is currently not required to 
meet release detection requirements. Safe suction 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 
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.\18\ Similarly, EPA considers piping that 
manifolds two tanks together, which has characteristics that allow 
product to drain to the manifolded tanks if the piping loses suction, 
the same as safe suction piping. In addition, this final UST regulation 
does not require secondary containment for new and replaced piping 
associated with field-constructed tanks greater than 50,000 gallons in 
capacity and airport hydrant fuel distribution systems. See section C-2 
for additional information about these types of UST systems.
---------------------------------------------------------------------------

    \18\ Preamble to 40 CFR part 280, 53 FR 37154, September 23, 
1988.
---------------------------------------------------------------------------

    EPA is not requiring secondary containment and UDC for UST systems 
where installation began on or before 180 days after the effective date 
of this final UST regulation. 180 days allows owners and operators who 
have concrete plans for a new UST system or dispenser installation to 
move forward with their plans before the secondary containment and UDC 
requirement takes effect. 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 applied for or obtained all 
federal, state, and local approvals or permits and:
     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 of major components 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 single walled UST systems after the 
effective date of the final UST regulation, tanks and piping must be 
secondarily contained and new dispensers must have UDC.
    To implement secondary containment and UDC, EPA is adding new 
definitions to this final UST regulation. EPA is defining these terms 
so they are consistent with the definitions contained in EPA's 
secondary containment grant guidelines to implementing agencies.\19\ 
New definitions in the final UST regulation are:
---------------------------------------------------------------------------

    \19\ Grant Guidelines to States for Implementing the Secondary 
Containment Provision of the Energy Policy Act of 2005: http://epa.gov/oust/fedlaws/secondco.htm.
---------------------------------------------------------------------------

     Dispenser--This means equipment located aboveground that 
dispenses regulated substances from the UST system. The 2011 proposed 
UST regulation defined dispenser system. However, based on comments 
received, EPA decided to also add the definition of dispenser to the 
final UST regulation.
     Dispenser system--This means the dispenser and the 
equipment necessary to connect the dispenser to the UST system. As 
described above, EPA decided to add dispenser to the list of 
definitions in the final UST regulation for clarity. As a result, EPA 
shortened the definition of dispenser system in the final UST 
regulation to account for the new definition of dispenser.
     Replaced--For a tank, this means to remove a tank and 
install another tank. For piping, it means 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. Commenters suggested adding a 
definition of replaced as it applies to a dispenser system. However, 
since EPA is only applying the UDC requirement to new dispenser 
systems, we are not defining the term replaced as it relates to 
dispenser systems.
     Secondary containment or secondarily contained--This means 
a release prevention and release detection system for a tank or piping. 
This system has an inner and outer barrier with an interstitial space 
that is monitored for leaks. This term includes containment sumps when 
used for interstitial monitoring of piping. The EPAct defines secondary 
containment as a release

[[Page 41575]]

detection and prevention system that meets the interstitial monitoring 
requirement in Sec.  280.43(g). Based on this definition, this final 
UST regulation includes interstitial monitoring as part of the 
secondary containment definition. Consistent with the 1988 UST 
regulation release detection requirements, EPA is requiring 
interstitial monitoring of new and replaced secondarily contained tanks 
and piping to occur at least once every 30 days. Some commenters 
expressed concern about whether secondary containment included 
containment sumps. To clarify the definition, EPA is adding language 
about containment sumps to the secondary containment definition. In 
addition, EPA is defining containment sump in this final UST 
regulation. See section B-4, Secondary Containment Tests, for details 
about this new definition. Several commenters suggested EPA add to the 
definition of secondary containment a 360 degree containment 
requirement for tanks. EPA relies on codes of practice developed by 
nationally recognized associations or independent testing laboratories 
to determine the degree of containment necessary to be considered 
secondarily contained. This final UST regulation continues to rely on 
these codes of practice for determining when the tanks and piping are 
considered secondarily contained.
     Under-dispenser containment--This means containment 
underneath a dispenser system designed to prevent leaks from the 
dispenser and piping within or above the UDC from reaching soil or 
groundwater. Based on comments received and to provide clarification, 
EPA is adding piping in the containment sump to the definition.
    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.\20\ About 75 percent 
of these states have requirements as stringent as, or more stringent 
than, the 50 percent threshold in this final UST regulation.
---------------------------------------------------------------------------

    \20\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.
---------------------------------------------------------------------------

    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).\21\ 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. Since 60 percent was an approximate screening number, EPA in 
this final UST regulation is requiring owners and operators to 
secondarily contain the entire piping run when 50 percent or more of a 
piping run is replaced. Fifty percent represents half of a piping run, 
is consistent with most implementing agency decisions, and provides 
flexibility for allowing repairs while continuing to protect the 
environment. Fifty percent also prevents owners and operators from 
leaving small pipe sections in the ground to avoid this secondary 
containment requirement. If an UST has multiple piping runs, the 
secondary containment requirement applies independently to each piping 
run 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, do not require secondary containment.
---------------------------------------------------------------------------

    \21\ Industrial Economics Incorporated, Work Assignment #1-19, 
Methodology and Calculator for Secondary Containment for Piping, 
October 3, 2008.
---------------------------------------------------------------------------

    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, EPA 
considers the piping associated with each STP to be 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 Sec.  280.20 at the time of installation.
    EPA is requiring owners and operators install UDC underneath new 
dispenser systems at UST systems regulated by 40 CFR part 280. Data 
from release sites show dispensers are one of the leading release 
sources.22 23 UDC is located underground and prevents some 
releases by containing small leaks that occur inside and underneath the 
dispenser. EPA considers a dispenser system new when owners and 
operators install both the dispenser and equipment needed to connect 
the dispenser to an UST system. EPA includes check valves, shear 
valves, unburied risers or flexible connectors, and other transitional 
components as equipment that connects a dispenser to an UST system. 
This equipment is located underneath 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 UDC is not required.
---------------------------------------------------------------------------

    \22\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \23\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
---------------------------------------------------------------------------

    To contain small releases from the dispenser, piping, and other 
equipment, UDC must be liquid tight. This final UST regulation requires 
UDC be liquid tight on its sides, bottom, and at any penetrations 
through the containment. EPA is requiring periodic testing of UDC in 
section B-4, Secondary Containment Tests, if the UDC is used for piping 
interstitial monitoring. In addition, EPA is requiring annual 
inspections of containment sumps in section B-1, Walkthrough 
Inspections, including UDC. Finally, an owner or operator must be able 
to access and visually inspect the containment. If visual inspection 
and access are not possible, then owners and operators must 
periodically monitor UDC (i.e., by electronic monitoring) to ensure it 
is intact and free of liquids. EPA proposed continuous UDC monitoring 
if visual inspection and access of the UDC are not possible. However, 
in guidance to state UST programs about meeting the secondary 
containment provision of the EPAct, EPA did not require continuous 
monitoring. Therefore, to provide owners and operators additional 
flexibility and be consistent with guidance provided to states, this 
final UST regulation requires periodic monitoring of UDC if access to 
and visual inspection of the UDC are not possible.

B. Additional Requirements for Operation and Maintenance

    The 1988 UST regulation required owners and operators 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, this final UST regulation adds requirements for periodic 
walkthrough inspections, spill prevention equipment testing, overfill

[[Page 41576]]

prevention equipment inspections, containment sump testing, and release 
detection equipment testing.
    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 this final UST regulation. Section 280.33 of this final 
UST regulation describes repair requirements for UST systems.
1. Walkthrough Inspections
    To help EPA determine whether walkthrough inspections will be 
effective, EPA asked nine states with requirements for periodic 
walkthrough inspections whether their requirements are effective.\24\ 
Seven states believe their programs are effective. Two states did not 
provide input because they had not been implementing their walkthrough 
inspection programs long enough to evaluate effectiveness. States 
providing input indicated their walkthrough inspections: Identify and 
resolve problems more quickly; decrease the chance of a potential spill 
or release; and increase understanding and compliance with the UST 
regulation. Based on this information and input received from comments 
on the 2011 proposed UST regulation, EPA thinks walkthrough inspections 
will be effective in helping prevent and detect releases.
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    \24\ Work Order No. 1004, Task 2, Subtask a--State Walkthrough 
Underground Storage Tank Inspections, SKEO, 1/31/2013
---------------------------------------------------------------------------

    Based on comments EPA received, this final UST regulation requires 
owners and operators conduct walkthrough inspections as follows:
     Every 30 days:
    [cir] Visually check spill prevention equipment for damage and 
remove liquid or debris; check for and remove obstructions in the fill 
pipe; check the fill cap to ensure it is securely on the fill pipe; 
and, for double walled spill prevention equipment with interstitial 
monitoring, check for a leak in the interstitial area (exception: 
Owners and operators of spill prevention equipment at UST systems 
receiving deliveries at intervals greater than 30 days may check that 
equipment prior to each delivery)
    [cir] Check release detection equipment to ensure it is operating 
with no alarms or unusual operating conditions present and ensure 
release detection records are reviewed and current
     Annually:
    [cir] Visually check containment sumps for damage and leaks to the 
containment area or releases to the environment; remove liquid (in 
contained sumps) or debris; and, for double walled containment sumps 
with interstitial monitoring, check for a leak in the interstitial area
    [cir] Check hand held release detection equipment, such as 
groundwater bailers and tank gauge sticks, for operability and 
serviceability
    In addition, this final UST regulation allows owners and operators 
to conduct operation and maintenance walkthrough inspections according 
to a standard code of practice developed by a nationally recognized 
association or independent testing laboratory or according to 
requirements developed by the implementing agency. The inspections must 
check equipment in a manner comparable to the walkthrough inspection 
requirements described above.
    This final UST regulation requires owners and operators maintain 
walkthrough inspection records for one year. Most commenters supported 
a one year recordkeeping requirement for walkthrough inspections. In 
addition, the one year recordkeeping time frame is consistent with the 
recordkeeping requirement for 30 day release detection monitoring. The 
walkthrough inspection record must include a list of each area checked, 
whether each area checked was acceptable or needed action taken, a 
description of actions taken to correct an issue, and delivery records 
if owners and operators check spill prevention equipment less 
frequently than every 30 days.
    In 2011, EPA proposed to implement the walkthrough inspection 
requirement on the effective date of the final UST regulation. However, 
based on comments received and to align implementation of all operation 
and maintenance requirements, owners and operators must begin 
conducting walkthrough inspections not later than three years after the 
effective date of this final UST regulation. This change will make 
compliance easier and allow owners and operators ample time to 
understand their walkthrough inspection responsibilities.
    In 2011, EPA proposed requiring owners and operators inspect 
containment sumps once every 30 days. Many commenters were concerned 
about inspecting containment sumps every 30 days because of the 
physical burdens of lifting heavy lids, the potential to ruin seals 
that prevent water from entering the sump, and the safety of the people 
performing the inspection in high traffic areas. While EPA thinks 
frequent containment sump inspections are a valuable part of UST system 
operation and maintenance, EPA recognizes the concerns raised by 
commenters and is moving the requirement to conduct containment sump 
inspections from once every 30 days to annual, which coincides with 
when owners and operators must open containment sumps to test release 
detection equipment.
    In the 2011 proposed UST regulation, EPA required that hand held 
release detection equipment be inspected once every 30 days. Based on 
commenter input, this final UST regulation requires annual inspections 
of hand held release detection equipment to coincide with other release 
detection equipment operation and maintenance requirements.
    In the 2011 proposed UST regulation, EPA required 30 day cathodic 
protection inspections as part of the walkthrough inspection. Several 
commenters indicated this frequency conflicted with the 60 day 
requirement already in the 1988 UST regulation. Based on this input, 
this final UST regulation keeps cathodic protection inspections at the 
60 day interval as required in the 1988 UST regulation. Therefore, 
owners and operators must continue to perform the 60 day impressed 
current cathodic protection inspections to ensure equipment is running 
properly and keep the most recent three records of those inspections.
    The 2011 proposed UST regulation required checking monitoring and 
observation wells every 30 days to make sure they are secure. A few 
commenters questioned the need to perform these inspections because 
owners and operators seldom access these wells unless they are used for 
release detection or cleanup. EPA agrees with these commenters and also 
thinks that owners and operators will secure monitoring wells following 
each 30 day release detection monitoring event or during cleanups as 
part of their normal compliance activities. Therefore, EPA is not 
including monitoring and observation wells as part of the periodic 
walkthrough inspection requirement in this final UST regulation.
    EPA received several comments on the 2011 proposed UST regulation 
recommending treating nonretail UST systems differently than 
traditional commercial UST facilities because some nonretail UST 
systems receive infrequent deliveries. Based on the comments, this 
final UST regulation allows additional flexibility for inspecting spill 
prevention equipment at UST systems where filling occurs infrequently. 
In cases where filling activities occur less often than 30 days, owners 
and operators may inspect spill

[[Page 41577]]

prevention equipment prior to each delivery, instead of at least once 
every 30 days. This exception to the spill prevention equipment check 
for the 30 day walkthrough inspection requirement will still provide 
appropriate environmental protection because the purpose of this 
equipment is to catch drips and spills that may occur when the delivery 
hose is disconnected from the fill pipe. For UST systems receiving 
infrequent deliveries, inspecting spill prevention equipment before 
each delivery is adequate.
    This final UST regulation retains 30 day inspections of release 
detection equipment and spill prevention equipment. EPA thinks these 
inspections are needed at least once every 30 days for release 
detection to ensure the equipment is operating, check release detection 
records, and determine whether the tank or piping is leaking. Owners 
and operators who monitor their release detection system remotely may 
check the release detection equipment and records remotely as long as 
the release detection system at the UST system location is determined 
to be in communication with the remote monitoring equipment. In 
addition, 30 day inspections (or before each delivery) of spill 
prevention equipment will ensure these devices contain small drips and 
spills that occur when the delivery hose is disconnected from the fill 
pipe. Based on commenter input, EPA is adding the requirement to check 
for and remove obstructions in the fill pipe as part of the walkthrough 
inspection because obstructions in the fill pipe will cause a shutoff 
device to operate improperly.
    EPA is including Petroleum Equipment Institute's Recommended 
Practice 900, Recommended Practices for the Inspection and Maintenance 
of UST Systems, as a code of practice that may be used to meet the 
walkthrough inspection requirement in this final UST regulation.\25\ 
This recommended practice includes daily, monthly, and annual 
inspections for properly maintaining underground storage tank systems. 
Owners and operators who use the code of practice option for meeting 
UST requirements must use the entire code of practice. For example, 
owners and operators would not meet the walkthrough inspection 
requirement if they chose to follow only some of the walkthrough 
inspection areas in the code of practice while ignoring others.
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    \25\ This document is available for purchase at www.pei.org.
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    This final UST regulation allows flexibility for owners and 
operators to conduct walkthrough inspections themselves or hire a third 
party to conduct walkthrough inspections. Although EPA does not require 
training for owners and operators who conduct these inspections, 
operators trained in the Class A or B training requirements (see 
section A-1) should already have adequate knowledge to perform periodic 
walkthrough inspections.
    EPA received multiple comments suggesting we revise the 30 day 
inspection requirement to be a monthly requirement. After careful 
consideration, EPA is keeping the 30 day inspection requirement. Thirty 
days provides owners and operators with clarity about the inspection 
time frame by specifying the maximum number of days between walkthrough 
inspections. EPA is not moving to monthly inspections because owners 
and operators could misinterpret monthly and go 60 or more days without 
conducting a walkthrough inspection. For example, an owner or operator 
could perform a monthly inspection on January 31, then again on 
February 1, and then not inspect again until March 31. If an owner or 
operator continued this practice, six inspections would occur one day 
apart and six inspections would occur about 60 days apart. While this 
could be considered inspecting monthly, it is not inspecting 
consistently on or about the same time each month. EPA wants to ensure 
the walkthrough inspection frequency is consistent, rather than allow 
the more inconsistent monthly option in this example. Since 30 days is 
the average length of a month, EPA's intent with requiring 30 days is 
to ensure owners and operators conduct walkthrough inspections on or 
about the same time each month.
    Some commenters raised concern about disposing of liquids owners 
and operators discover during the inspection. For spill prevention 
equipment and containment sumps to operate as intended, those areas 
must be free of liquids. In the past, when owners and operators found 
liquids in those areas, they needed to remove the liquids so the 
equipment would operate properly (and meet the 1988 UST regulation). 
This final UST regulation is requiring those areas be inspected 
periodically; as a result, owners and operators may discover the liquid 
sooner, but the responsibility to remove the liquid remains the same. 
EPA expects owners and operators to remove, manage, and dispose of the 
liquid properly (according to federal, state, and local requirements) 
as soon as practicable after discovery.
2. Spill Prevention Equipment Tests
    In this final UST regulation, EPA is adding a three year testing 
requirement for spill prevention equipment. This action helps ensure 
spill prevention equipment will contain small drips and spills when the 
delivery transfer hose is disconnected from the fill pipe. 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. Data show that UST spills account for 
about 15 percent of releases from UST systems.26 27 Examples 
of problems with spill prevention equipment include damage due to: 
Vehicles driving over the spill prevention equipment; ground movement 
or freeze and thaw cycles; inadequate installation practices; and 
normal wear and tear. In addition, the typical life of spill prevention 
equipment is relatively short--five to eight years according to a South 
Carolina study.28 29 The life span for spill prevention 
equipment can be even shorter when exposed to more severe weather 
conditions such as freeze and thaw cycles and plowing following snow 
events. Because of these factors, periodic spill prevention equipment 
testing is needed to minimize problems and ensure spill prevention 
equipment will contain small releases from the delivery hose when 
disconnected from the fill pipe.
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    \26\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
    \27\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \28\ Spill Bucket Performance Presentation by Dale Stoudemire, 
2005 UST National Conference, March 14-15 2005, Seattle, WA.
    \29\ Spill Buckets: Mistaken Expectations?, LUSTLine Bulletin 
48, Dale W. Stoudemire, November 2004.
---------------------------------------------------------------------------

    This final UST regulation does not require periodic testing of 
double walled spill prevention equipment if the integrity of both walls 
is periodically monitored. Because the integrity of both walls is 
periodically monitored, this type of spill prevention equipment is 
periodically checked for tightness. In 2011, EPA proposed to exclude 
from the periodic testing requirement only double walled spill 
prevention equipment with continuous interstitial monitoring. Several 
commenters suggested that monitoring of the

[[Page 41578]]

interstitial area be used in lieu of periodic spill prevention 
equipment testing. EPA agrees with commenters that double walled spill 
prevention equipment, where the integrity of both walls is periodically 
monitored, should not have to undergo testing--as long as owners and 
operators conduct periodic monitoring of the equipment at a frequency 
consistent with, or more frequent than, the walkthrough inspection 
frequency (see section B-1). For example, owners and operators who 
check vacuum, pressure, or liquid interstitial integrity indicators on 
double walled spill containment devices as part of their 30 day 
walkthrough inspections are considered to be periodically monitoring 
the integrity of both walls.
    For spill prevention equipment that must be tested once every three 
years, this final UST regulation requires owners and operators to 
conduct testing using vacuum, pressure, or liquid methods. In addition, 
the test must be conducted in accordance with 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 
requirements for testing the tightness of their spill prevention 
equipment. As of the publication date of this final UST regulation, EPA 
is aware of one code of practice that contains procedures for testing 
spill prevention equipment: Petroleum Equipment Institute (PEI) 
Recommended Practice (RP) 1200, Recommended Practices for the Testing 
and Verification of Spill, Overfill, Leak Detection and Secondary 
Containment Equipment at UST Facilities.\30\ EPA is adding this code of 
practice to this final UST regulation. 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 case codes of practice and manufacturer's requirements 
are not available for testing spill prevention equipment. Several 
commenters expressed concern that EPA did not establish specific pass 
or fail performance criteria for spill prevention equipment testing. 
EPA thinks the manufacturer, code of practice, or implementing agency 
are better suited to establish test method criteria because spill 
prevention devices are manufactured in different shapes and sizes. 
Therefore, EPA is relying on the test method to establish specific pass 
or fail performance criteria.
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    \30\ This document is available for purchase at www.pei.org.
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    In 2011, EPA proposed a one year implementation time frame for 
owners and operators to begin conducting spill prevention equipment 
testing. However, based on commenter input suggesting implementation be 
consistent with other testing requirements, EPA is requiring owners and 
operators of spill containment equipment in use as of the effective 
date of this final UST regulation conduct the first test no later than 
three years after the effective date of this final UST regulation. EPA 
thinks aligning implementation dates for the different operation and 
maintenance testing requirements to the extent possible will provide 
clarity about the requirements owners and operators must meet. After 
the first spill prevention equipment test, owners and operators must 
test spill prevention equipment at least once every three years.
    For UST systems brought into use after the effective date of this 
final UST regulation, the spill prevention equipment testing 
requirement applies at installation. However, owners and operators must 
also follow the installation requirements in Sec.  280.20(d) which 
require manufacturer's instructions and installation standards be 
followed. These instructions and standards currently address liquid 
tightness of spill prevention equipment at installation. As long as the 
spill prevention equipment is tested and liquid tight at installation, 
the first periodic spill prevention equipment test does not have to be 
conducted until three years after installation.
    In 2011, EPA proposed that owners and operators test spill 
prevention equipment at least annually. However, based on comments 
received, EPA is requiring owners and operators test spill prevention 
equipment at least once every three years. Commenters suggested that 
all operation and maintenance testing should be aligned so that all 
tests can be conducted at the same time. EPA agrees. To make it easier 
for owners and operators to comply, this final UST regulation aligns 
periodic spill, overfill, and secondary containment testing to the 
extent possible. Since spill prevention equipment has a relatively 
short lifespan, EPA thinks a three year testing frequency, when 
combined with periodic visual checks via the walkthrough inspection 
(see section B-1), is adequate to ensure spill prevention equipment 
will contain any drips or spills when the delivery hose is disconnected 
from the fill pipe.
    EPA received significant support for requiring owners and operators 
to keep records of the spill prevention equipment test for three years. 
This final UST regulation requires owners and operators maintain 
records of spill prevention equipment testing for three years for each 
spill prevention device at the facility. A three year period aligns 
with the maximum time between on-site UST facility compliance 
inspections. These records will demonstrate to implementing agencies 
that the spill prevention equipment was tested and tight at the time of 
the test.
    Owners and operators of UST systems with double walled spill 
prevention equipment, where the integrity of both walls is periodically 
monitored and who choose not to conduct spill prevention equipment 
testing at least once every three years, must maintain documentation 
showing that spill prevention equipment has two walls and the integrity 
of both walls is periodically monitored. Owners and operators must 
maintain this documentation for as long as the equipment is 
periodically monitored. Owners and operators who discontinue periodic 
monitoring of their double walled spill prevention equipment must 
conduct a test within 30 days of discontinuing the periodic monitoring. 
EPA considers this necessary because discontinuing periodic monitoring 
of the interstitial area may mean some portion of that area of the 
spill prevention equipment may no longer have integrity. Owners and 
operators need to ensure the primary containment of the spill 
prevention equipment is tight. Alternatively, owners and operators may 
choose to test double walled spill prevention equipment once every 
three years, and maintain the test record, in lieu of periodically 
monitoring this equipment and maintaining these monitoring records.
    Several commenters raised concerns about disposal of the spill 
prevention equipment test liquid following the test. EPA considered 
test liquid disposal in this final UST regulation and contacted several 
vendors to determine whether disposal of the test liquid was included 
as part of spill prevention equipment testing.\31\ Some vendors include 
handling of the test liquid as part of the test; they carry the test 
liquid with them and reuse it several times before disposal. Others 
charge a separate cost to dispose of the test liquid or make sure the 
owner or operator has drums on site to dispose of the test liquid. In 
addition,

[[Page 41579]]

vendors sometimes use vacuum testing for spill prevention equipment 
testing, which eliminates the liquid from the test.
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    \31\ Spill, Overfill, and Secondary Containment testing 
Questions and Answers from Three Vendors (11/8/12).
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    A few commenters raised concerns about facility down time and 
replacement costs for spill prevention equipment as a result of 
testing. EPA acknowledges that, in instances where access to the spill 
prevention equipment is in the line of traffic, there could be a small 
amount of facility down time as a result of testing; however EPA thinks 
the benefit to the environment far outweighs the cost of potential down 
time. To minimize the effects of down time, owners and operators can 
also schedule the testing during low traffic times at the facility or 
when other routine maintenance occurs. EPA expects owners and operators 
to have properly functioning spill prevention equipment at all times 
and fix problems when they are discovered. The spill prevention 
equipment test may uncover a problem earlier, resulting in repair or 
replacement (and better protection from spills) sooner rather than 
later, and more quickly detect or prevent releases of regulated 
substances to the environment.
3. Overfill Prevention Equipment Inspections
    In this final UST regulation, EPA is adding periodic operation and 
maintenance requirements for overfill prevention equipment to help 
ensure the 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. Data show that tank 
overfills account for about 15 percent of releases from UST 
systems.32 33 Examples of problems with overfill prevention 
equipment include: Tampering, improper use, and normal wear and tear. 
Overfill prevention equipment inspections will minimize problems and 
ensure overfill prevention equipment is operating properly.
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    \32\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \33\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
---------------------------------------------------------------------------

    The 2011 proposed UST regulation used the term testing for overfill 
prevention equipment when describing the periodic functionality checks. 
However, based on input from commenters about potentially overfilling 
the tank during testing, EPA is using the term inspections--rather than 
testing--in this final UST regulation. The procedure to determine 
whether overfill prevention equipment is operating properly should not 
overfill the tank. Rather, the equipment must be inspected to determine 
whether it will operate or activate properly according to requirements 
in this final UST regulation. For example, the inspection to determine 
whether an automatic shutoff device in the fill pipe will activate at 
the correct height might involve removing and inspecting the device to 
ensure it operates as well as measuring the position of the device in 
the tank to ensure it activates at the appropriate level in the tank.
    For overfill prevention equipment inspections, owners and operators 
must use manufacturer's requirements or a code of practice developed by 
a nationally recognized association or independent testing laboratory. 
Manufacturer's requirements are an option only when manufacturers have 
developed inspection requirements for their overfill prevention 
equipment that determines the device is set to activate at the 
appropriate level in the tank and will activate when the regulated 
substance reaches that level. As of this final UST regulation, EPA is 
aware of one code of practice that contains procedures for inspecting 
overfill prevention equipment: PEI RP 1200, Recommended Practices for 
the Testing and Verification of Spill, Overfill, Leak Detection and 
Secondary Containment Equipment at UST Facilities.\34\ EPA added this 
code of practice in this final UST regulation. 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 case a code of practice and manufacturer's 
requirements are not available for inspecting overfill prevention 
equipment.
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    \34\ This document is available for purchase at www.pei.org.
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    This final UST regulation requires owners and operators conduct 
overfill prevention equipment inspections at least once every three 
years. Commenters generally supported a three year or more frequent 
inspection cycle. EPA chose the three year time frame because it aligns 
with three year compliance inspections and is consistent with other 
operation and maintenance requirements, such as containment sump 
testing and spill prevention equipment testing.
    In 2011, EPA proposed to stagger implementation for overfill 
prevention equipment inspections over a three year period based on the 
installation date of the oldest UST at the facility. However, EPA 
received significant input from commenters opposing the phased in 
approach and advocating a single implementation date. EPA agrees with 
the merits of a more simplified approach. Therefore, for overfill 
prevention equipment installed as of this final UST regulation, owners 
and operators must conduct the first inspection within three years of 
the effective date of this final UST regulation. After the first 
overfill prevention equipment inspection, owners and operators must 
inspect overfill prevention equipment at least once every three years.
    For UST systems brought into use after the effective date of this 
final UST regulation, the overfill prevention equipment inspection 
requirement applies at installation. However, owners and operators must 
also follow the installation requirements in Sec.  280.20(d) which 
require following manufacturer's instructions and installation 
standards. These instructions and standards currently address the 
operability of the overfill equipment at installation. As long as the 
overfill prevention equipment is inspected for operability at 
installation, the first periodic overfill prevention equipment 
inspection does not have to be conducted until three years after 
installation.
    EPA received significant support for requiring owners and operators 
to keep records of overfill prevention equipment inspections for three 
years. The three year period aligns with the maximum time between on-
site UST facility compliance inspections. Therefore, this final UST 
regulation requires owners and operators maintain for three years 
overfill prevention equipment inspection records for each overfill 
device at the facility. These records will demonstrate to implementing 
agencies that the overfill prevention equipment has been inspected, is 
set at the appropriate height in the tank, and will activate when 
regulated substances reach that height.
    Several commenters were concerned about potential damage to 
overfill prevention equipment during removal for inspection. EPA asked 
several vendors who perform overfill prevention equipment inspections 
about the potential for damage during periodic overfill prevention 
equipment

[[Page 41580]]

inspections.\35\ The vendors indicated that seals may need to be 
replaced when removing the equipment, but that overfill prevention 
equipment itself would not easily be damaged during removal or 
reinstallation. The vendors also indicated that replacing these seals 
will result in little or no additional cost to the owner and operator.
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    \35\ Spill, Overfill, and Secondary Containment testing 
Questions and Answers from Three Vendors (11/8/12).
---------------------------------------------------------------------------

    A few commenters raised concerns about facility down time and 
replacement costs for overfill prevention equipment as a result of 
periodic inspections. EPA acknowledges that, in instances where access 
to overfill prevention equipment is in the line of traffic, there could 
be a small amount of facility down time as a result of inspecting; 
however EPA thinks the benefit to the environment far outweighs the 
cost of potential down time. To minimize the effects of down time, 
owners and operators can also schedule the inspection during low 
traffic times at the facility or when other routine maintenance occurs. 
EPA expects owners and operators to have properly functioning overfill 
prevention equipment at all times and fix problems when they are 
discovered. The overfill prevention equipment inspection may uncover a 
problem earlier, resulting in repair or replacement (and better 
protection from overfills) sooner rather than later.
4. Secondary Containment Tests
    The 2011 proposed UST regulation included periodic secondary 
containment testing requirements for secondary containment areas of 
tanks and piping and for containment sumps used for monitoring the 
secondary containment areas of piping. However, based on the 
significant opposition commenters provided, this final UST regulation 
is not requiring periodic secondary containment testing of secondarily 
contained tanks and piping. EPA agrees with commenters who indicated 
secondarily contained UST systems using interstitial monitoring are 
more protective of the environment than single walled UST systems. In 
addition, EPA understands that some secondarily contained UST systems 
installed before this final UST regulation may not have been designed 
to have the interstitial areas periodically tested. Finally, EPA does 
not want to create a disincentive for owners and operators to replace 
older single walled UST systems with secondarily contained systems or 
penalize early installers of secondarily contained UST systems. 
However, this final UST regulation does require testing of these areas 
following a repair or, as appropriate, in response to a suspected 
release if they are used for interstitial monitoring. Interstitial 
areas where interstitial monitoring is used need to be tight following 
a repair so that the interstitial monitoring will detect a release 
before it reaches the environment. Likewise, interstitial areas need to 
be tested in response to a suspected release to determine whether a 
leak has reached the environment.
    EPA disagrees with commenters who suggested periodic testing for 
containment sumps used for interstitial monitoring of piping is 
unnecessary. These areas function similar to spill containment 
equipment, containing leaks from piping and other components in the 
sump. Containment sumps can degrade over time, resulting in releases to 
the environment. Information about source and cause of release shows 
that a significant number of releases occur in containment sump 
areas.36 37 Containment sumps have piping and other 
components that penetrate through the containment sump walls, 
increasing the likelihood that these areas are not liquid tight. 
Containment sumps used for interstitial monitoring of piping need to be 
liquid tight so they will contain regulated substances released from 
the primary wall of the piping. Therefore, this final UST regulation 
includes a three year testing requirement for containment sumps used 
for interstitial monitoring of piping.
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    \36\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA/OUST, March 2005.
    \37\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, US EPA/OUST, August 2004.
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    This final UST regulation does not require periodic testing of 
double walled containment sumps used for interstitial monitoring of 
piping if the integrity of both walls of the containment sump is 
periodically monitored. Because the integrity of both walls is 
periodically monitored, this type of containment sump is periodically 
checked for tightness. EPA proposed to exclude from the periodic 
testing requirement only containment sumps with continuous interstitial 
monitoring. Several commenters suggested that periodic monitoring 
(rather than continuous monitoring) of the interstitial area of the 
double walled containment sump would be adequate in lieu of performing 
the periodic containment sump testing. EPA agrees with commenters that 
double walled containment sumps, where the integrity of both walls is 
periodically monitored, should not have to undergo testing--as long as 
owners and operators conduct periodic monitoring of the equipment at a 
frequency consistent with, or more frequent than, the walkthrough 
inspection frequency (see section B-1). For example, owners and 
operators who check vacuum, pressure, or liquid interstitial integrity 
indicators on double walled containment sumps as part of their annual 
walkthrough inspections are considered to be periodically monitoring 
the integrity of both walls.
    This final UST regulation does not require periodic testing of 
containment sumps used for reasons other than interstitial monitoring 
of piping. Testing of these areas is not necessary to ensure the 
release detection will detect a leak because owners and operators are 
not using the containment sumps for interstitial monitoring. In these 
cases, owners and operators use another method of release detection and 
previously installed containment sumps as part of good business 
practice.
    Some commenters suggested EPA add definitions for continuous 
monitoring and interstitial monitoring. Since this final UST regulation 
uses the concept of periodic monitoring rather than continuous 
monitoring, EPA is not defining continuous monitoring. The concept of 
interstitial monitoring was used in the 1988 UST regulation and remains 
the same in this final UST regulation (see Sec.  280.43(g)). In 
addition, this final UST regulation describes interstitial monitoring 
in detail in subpart D. Therefore, EPA is not further defining 
interstitial monitoring. Based on commenter input, EPA is adding to 
this final UST regulation a definition of containment sump, which 
addresses comments about what constitutes a containment sump. EPA 
considers a containment sump to be a liquid tight container that 
protects the environment by containing leaks and spills of regulated 
substances from piping, dispensers, pumps, and related components in 
the containment area. Containment sumps may be single walled or 
secondarily contained and located at the top of tank (tank top or 
submersible turbine pump sump), underneath the dispenser (under-
dispenser containment sump), or at other points in the piping run 
(transition or intermediate sump).
    This final UST regulation requires owners and operators conduct 
testing of containment sumps used for interstitial monitoring of piping 
at least once every three years. Commenters generally supported a three 
year or more frequent inspection cycle. EPA is choosing the three year 
time frame to: Make

[[Page 41581]]

compliance easier for owners and operators; align with three year 
compliance inspections; and be consistent with other operation and 
maintenance requirements, such as overfill prevention equipment 
inspections and spill prevention equipment testing.
    For containment sumps that require testing at least once every 
three years, this final UST regulation requires owners and operators 
conduct testing by using vacuum, pressure, or liquid methods. In 
addition, the test must be conducted in accordance with 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 
testing requirements for their containment sumps that ensure their 
containment sump is tight. As of this final UST regulation, EPA is 
aware of one code of practice that contains procedures for testing 
containment sumps: PEI RP 1200, Recommended Practices for the Testing 
and Verification of Spill, Overfill, Leak Detection and Secondary 
Containment Equipment at UST Facilities, and is adding this code of 
practice to the final UST regulation.\38\ 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 a code of practice and manufacturer's 
requirements are not available for testing containment sumps. Several 
commenters expressed concern that EPA did not establish specific pass 
or fail performance criteria for containment sump testing. However, EPA 
thinks the test method established by the manufacturer, code of 
practice, or implementing agency are better suited to establish 
criteria because containment sumps are made in different shapes and 
sizes. Therefore, EPA is relying on the test method to establish 
specific pass or fail performance criteria.
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    \38\ This document is available for purchase at www.pei.org.
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    In 2011, EPA proposed to stagger secondary containment testing 
implementation over a three year period, based on the installation date 
of the oldest UST at a facility. However, EPA received significant 
input from commenters opposing a phased in approach and advocating a 
single implementation date. EPA agrees with the merits of a more 
simplified approach. Therefore, containment sumps used for interstitial 
monitoring of piping installed as of the effective date of this final 
UST regulation must be tested within three years of the effective date 
of this final UST regulation. After the first test, owners and 
operators must conduct periodic testing at least once every three 
years.
    For UST systems brought into use after the effective date of this 
final UST regulation, the containment sump testing requirement applies 
at installation. However, owners and operators must also follow the 
installation requirements in Sec.  280.20(d) which require following 
manufacturer's instructions and installation standards. These 
instructions and standards currently address liquid tightness of 
containment sumps at installation. As long as the containment sump is 
tested and liquid tight at installation, the first periodic containment 
sump test does not have to be conducted until three years after 
installation.
    EPA received significant support for the three year recordkeeping 
time frame for secondary containment testing because the three year 
time period aligns with the maximum time between on-site UST facility 
compliance inspections. Therefore, this final UST regulation requires 
owners and operators maintain for three years containment sump testing 
records for each containment sump used for interstitial monitoring at a 
facility. These records will demonstrate to implementing agencies that 
containment sumps were tested and tight at the time of the test.
    Owners and operators who have double walled containment sumps where 
the integrity of both walls is periodically monitored and choose not to 
conduct containment sump testing at least once every three years must 
maintain documentation showing their containment sumps have two walls 
and the integrity of both walls is periodically monitored. Owners and 
operators must maintain this documentation for as long as the integrity 
of the two walls of the containment sump is periodically monitored. 
Owners and operators who discontinue periodic monitoring of their 
double walled containment sumps must conduct a test within 30 days of 
discontinuing the periodic monitoring. EPA considers this necessary 
because discontinuing periodic monitoring of the interstitial area may 
mean some portion of that area of the containment may no longer have 
integrity. Therefore, owners and operators need to ensure the primary 
containment of the containment sump is tight. Alternatively, owners and 
operators may choose to test double walled containment sumps (and 
maintain testing records) once every three years in lieu of maintaining 
these records.
    Several commenters raised concern about disposing of containment 
sump test liquid following the test. EPA considered test liquid 
disposal in this final UST regulation and contacted several vendors to 
determine whether they included disposal of test liquid as part of 
containment sump testing.\39\ Some vendors include handling of the test 
liquid as part of the test; they carry the test liquid with them and 
reuse it several times before disposal. Others charge a separate cost 
to dispose of the test liquid or make sure the owner or operator has 
drums on site to dispose of the test liquid. In addition, vendors could 
use vacuum testing for containment sump testing, which eliminates the 
liquid from the test.
---------------------------------------------------------------------------

    \39\ Spill, Overfill, and Secondary Containment testing 
Questions and Answers from Three Vendors (11/8/12).
---------------------------------------------------------------------------

    A few commenters raised concerns about facility down time and 
replacement costs for containment sumps as a result of testing. EPA 
acknowledges that, in instances where access to the containment sump is 
in the line of traffic, there could be a small amount of facility down 
time as a result of testing; however EPA thinks the benefit to the 
environment far outweighs the cost of potential down time. To minimize 
the effects of down time, owners and operators can also schedule the 
testing during low traffic times at the facility or when other routine 
maintenance occurs that requires opening containment sumps. EPA expects 
owners and operators to have properly functioning containment sumps at 
all times when those containment sumps are used for interstitial 
monitoring of piping and fix problems when they are discovered. The 
containment sump test may uncover a problem earlier than if a test was 
never conducted, resulting in repair or replacements of the containment 
sump (and better protection from releases) sooner rather than later.
5. Release Detection Equipment Tests
    This final UST regulation requires 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 are required, at a minimum, 
to check this equipment:

[[Page 41582]]

 Automatic tank gauge (ATG) systems and other controllers
    [cir] Test alarm
    [cir] Verify system configuration
    [cir] Test battery back-up
 Probes and sensors
    [cir] Inspect for residual build-up
    [cir] Ensure floats move freely
    [cir] Ensure shaft is not damaged
    [cir] Ensure cables are free of kinks and breaks
    [cir] Test alarm operability and communication with controller
 Automatic line leak detector (ALLD)
    [cir] Simulate leak which determines capability to detect a leak
 Vacuum pumps and pressure gauges
    [cir] Ensure proper communication with sensors and controller
 Handheld electronic sampling equipment associated with vapor 
and groundwater monitoring
    [cir] Ensure proper operation

    This final UST regulation changes some requirements discussed in 
the 2011 proposed operation and maintenance for release detection 
equipment requirements. Changes include:

 Noting that PEI RP 1200 may be used to meet the testing 
requirements
 Increasing from one year to three years the time allowed for 
UST system owners and operators to implement the requirements
 Using the term automatic line leak detector instead of line 
leak detector
 Removing the leak sensing O-ring from the list of components 
tested
 Adding handheld electronic equipment associated with vapor and 
groundwater monitoring

    EPA is concerned about the performance of release detection 
equipment. Inspectors routinely find release detection equipment 
installed on UST systems, but often that equipment is not properly 
operated or maintained. In addition, information from an analysis in 
Florida indicates that leak detection successfully detected 26 percent 
of all releases. Conversely, leak detection was specifically identified 
as failing to detect 23 percent of releases.\40\ To increase the 
effectiveness of release detection, this final UST regulation targets 
operation and maintenance.
---------------------------------------------------------------------------

    \40\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, US EPA-OUST, March 2005.
---------------------------------------------------------------------------

    This final UST regulation requires that release detection is 
operated and maintained in accordance with manufacturer's instructions, 
a code of practice, or requirements developed by the implementing 
agency. To achieve optimal performance from equipment and to meet 
release detection requirements, it is important for UST system owners 
and operators to both install the equipment properly and properly 
operate and maintain it. In the 1988 UST regulation, EPA did not 
provide specifics on the minimum requirements to ensure adequate 
operation and maintenance of release detection equipment. As a result, 
manufacturer operation and maintenance requirements vary greatly, even 
among similar types of equipment.
    Some manufacturer's requirements do not adequately address 
operation and maintenance. For example, some manufacturers only 
recommend operation and maintenance testing; but EPA is taking the 
position that testing 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 supports EPA's position.\41\
---------------------------------------------------------------------------

    \41\ California'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.
---------------------------------------------------------------------------

    This final UST regulation improves and standardizes operation and 
maintenance for all release detection equipment; it provides owners and 
operators with required equipment tests, which will help ensure 
equipment is properly operated and maintained. EPA is requiring a set 
of minimum operation and maintenance criteria that owners and operators 
must follow for electronic and mechanical based release detection 
equipment.
    The operation and maintenance minimum requirements for release 
detection established in This final UST regulation are based on common 
requirements and recommendations by various equipment manufacturers of 
similar equipment. EPA used the National Work Group On Leak Detection 
Evaluations' (NWGLDE) list of leak detection equipment to identify 
commonly used equipment.\42\ In addition, EPA's publication, Operating 
And Maintaining Underground Storage Tanks Systems: Practical Help And 
Checklists and PEI's Recommended Practices for the Inspection and 
Maintenance of UST Systems (RP 900) also helped establish proper 
operation and maintenance activities.
---------------------------------------------------------------------------

    \42\ National Work Group On Leak Detection Evaluations' List Of 
Leak Detection Evaluations For Storage Tank Systems. http://www.nwglde.org/.
---------------------------------------------------------------------------

    Owners and operators must meet the release detection operation and 
maintenance requirements 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 determined by the implementing agency to be no less 
protective of human health and the environment than the two options 
listed above. These requirements are consistent with options for other 
operation and maintenance activities in this final UST regulation. As 
an example, see section B-2, Spill Prevention Equipment Tests.
    At the time of the 2011 proposed UST regulation, PEI was developing 
a code of practice, which EPA anticipated would address operability 
testing of release detection equipment. PEI issued the final 
recommended practice in 2012. EPA reviewed PEI's final Recommended 
Practices for the Testing and Verification of Spill, Overfill, Leak 
Detection and Secondary Containment Equipment at UST Facilities (RP 
1200) and is including it in this final regulation as an option for 
meeting the annual release detection equipment testing 
requirements.\43\
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    \43\ This document is available for purchase at www.pei.org.
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    This final UST regulation requires 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 meets the criteria listed or needed to have action taken; and 
describe any action taken to correct an issue. The requirement to 
maintain records for three years is consistent with the three year 
compliance inspection cycle; maintaining records will allow owners and 
operators to demonstrate compliance with this operation and maintenance 
requirement.
    Based on comments received and EPA's goal to align all 
implementation dates for consistency and easier compliance, this final 
UST regulation requires owners and operators meet operation and 
maintenance for release detection requirements no later than three 
years after the effective date of the final UST regulation. This is a 
change from the 2011 proposed UST regulation, which required that 
owners and operators meet this requirement no later than one year after 
the effective date of the final UST regulation.
    The 2011 proposed UST regulation used the term line leak detector 
as a component that must be tested. Based on comments received, this 
final UST regulation uses the term automatic line leak detector. This 
is consistent with

[[Page 41583]]

how EPA has historically referenced line leak detectors in the 1988 UST 
regulation. These devices can be electronic or mechanical and are 
described in Sec.  280.44(a). Commenters also asked EPA to add the 
performance criteria of 3 gallons per hour at 10 pounds per square inch 
line pressure to the simulated ALLD test required for the line leak 
detector. This is unnecessary since the 2011 proposed UST regulation 
required this performance standard for the simulated test by 
referencing Sec.  280.44(a). This final UST regulation maintains that 
ALLDs, whether electronic or mechanical, must meet the annual simulated 
leak test of 3 gallons per hour at 10 pounds per square inch line 
pressure within 1 hour.
    One commenter noted his experience with testing release detection 
equipment, which verified electrical circuitry, but during operation 
the connected device still did not function to its intended precision. 
This commenter recommended EPA change the term test to functionality 
test. EPA thinks this change is unnecessary. The operation and 
maintenance requirements for release detection feature minimum 
performance criteria for testing. Each method used to meet the 
requirement (manufacturer's instructions, a code of practice, or 
requirements developed by the implementing agency) must, at a minimum, 
cover each listed component and the stated performance criteria.
    EPA disagrees with the commenter who said EPA should allow self-
diagnostic equipment. Similar to the commenter in the previous 
paragraph, EPA is concerned that self-diagnostic equipment might verify 
electrical circuitry or communication, but not actually test equipment 
functionality. EPA requires testing to be performed in a manner that 
verifies equipment operation according to performance standards 
provided for each piece of release detection equipment. For example, 
testing ALLDs must involve simulating a system leak not greater than 3 
gallons per hour at 10 pounds per square inch line pressure within 1 
hour, or equivalent. ALLDs connected to ATG systems or other 
controllers may themselves be used to test electronic communication, 
but unless capable of simulating an appropriate leak in the system, do 
not meet the performance standard and, therefore, cannot be used to 
meet this requirement.
    In this final UST regulation, EPA is deleting language from the 
2011 proposed UST regulation about inspecting and testing the leak 
sensing O-ring. Commenters requested EPA clarify what a leak sensing O-
ring is. This O-ring is specific to the functional element of 
mechanical line leak detectors and is, therefore, only present on 
certain types of ALLDs. In addition, all functional elements will be 
tested as part of the simulated leak test conducted at 3 gallons per 
hour at 10 psi or equivalent for all ALLDs.
    This final UST regulation allows use of groundwater and vapor 
monitoring as methods of release detection, but with some restrictions 
(see section D-6). For owners and operators choosing groundwater or 
vapor monitoring as their method of release detection, this final UST 
regulation requires that hand held electronic devices such as 
photoionization devices meet the operation and maintenance requirements 
for release detection equipment. Non electronic hand held devices, such 
as measuring sticks and groundwater bailers, are covered in section B-
1, Walkthrough Inspections.

C. Addressing Deferrals

    This final UST regulation addresses airport hydrant fuel 
distribution systems and USTs with field-constructed tanks. In 
addition, this final UST regulation removes the release detection 
deferral for UST systems that store fuel solely for use by emergency 
power generators. As a result, these UST systems may no longer be 
subject to Spill Prevention, Control, and Countermeasure (SPCC) 
requirements. Finally, this final UST regulation partially excludes 
from Part 280 requirements wastewater treatment tank systems, UST 
systems containing radioactive material regulated under the Atomic 
Energy Act, and UST systems that are part of an emergency generator 
system at nuclear power generation facilities regulated by the Nuclear 
Regulatory Commission under 10 CFR part 50. To the extent these systems 
were regulated by the SPCC requirements, they will continue to be 
regulated by those requirements.
    In this final UST regulation, EPA partially excludes from part 280 
requirements the aboveground storage tanks associated with airport 
hydrant fuel distribution systems and USTs with field-constructed 
tanks. These aboveground storage tanks are part of the UST system, but 
are excluded from most of this final UST regulation because they are 
not underground. 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 United States 
or adjoining shorelines were subject to both UST regulations and SPCC 
regulations. Since then, the SPCC regulation has been amended and 
exempts completely buried storage tanks, as well as connected 
underground piping, underground ancillary equipment, and containment 
systems when fully subject to the technical requirements of 40 CFR part 
280. Partially excluded aboveground storage tanks which are part of the 
UST system may be subject to SPCC requirements.
1. UST Systems Storing Fuel Solely for Use by Emergency Power 
Generators--Require Release Detection
    This final UST regulation eliminates the deferral for UST systems 
storing fuel solely for use by emergency power generators (also 
referred to as emergency generator tanks). This means emergency 
generator tanks are no longer deferred from release detection 
requirements in 40 CFR part 280, subpart D and are subject to all UST 
requirements.
    This final UST regulation requires owners and operators of UST 
systems storing fuel solely for use by emergency power generators begin 
meeting these requirements:

 For systems installed after the effective date of this final 
UST regulation, at the time of installation
     For systems installed on or before the effective date of 
this final UST regulation, within three years of the effective date of 
this final UST regulation

    EPA is regulating UST systems storing fuel solely for use by 
emergency power generators because the rationale in the 1988 UST 
regulation 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 can now be monitored for releases by the majority of 
methods listed in subpart D. EPA estimates about 30 percent of 
emergency generator tanks already have release detection.
    Effective remote monitoring methods for release detection are now 
available

[[Page 41584]]

and currently used to monitor unmanned UST systems storing fuel solely 
for emergency generator tanks. Numerous companies perform remote 
monitoring for releases at these unmanned sites. When there is a 
suspected release, a remote monitor transmits a visual or audible alarm 
to a receiving console at a manned location. This provides owners and 
operators with real-time release detection data so owners and operators 
can quickly respond to suspected releases at sites with unmanned 
emergency generator tanks.
    Several commenters raised concerns that release detection methods 
may not properly operate on some emergency generator tanks and 
suggested changes to the release detection requirement. Commenters 
reported these issues:

 Looped piping systems, which is piping configured to run 
continuously with integrated supply and return lines, cannot be 
properly isolated or does not have a sufficient quiet period to perform 
a precision test when using automatic tank gauging
 Emergency generator tanks with copper piping may pose issues 
with meeting the release detection requirement due to system 
configurations
 Most emergency generator tanks are single walled and are 
limited to automatic tank gauging as the form of release detection
 Emergency generator tanks with day tanks and aboveground 
piping may need anti-siphon valves

    Other commenters suggested EPA limit the type of release detection, 
such as statistical inventory reconciliation (SIR), owners and 
operators may use on emergency generator tanks and that EPA should 
require owners and operators install electronic line leak detectors, 
which have a positive system shutdown of any product flow in the event 
of a leak. Other commenters recommended EPA clarify that automatic line 
leak detectors can go to alarm mode only and not shut down or restrict 
product flow when a leak is suspected in emergency generator tanks used 
during a crisis.
    EPA agrees that not all release detection methods may be suitable 
for all configurations of emergency generator tanks. EPA discussed the 
applicability of SIR on emergency generator tanks in general with 
several SIR vendors and received conflicting responses. A challenge to 
performing release detection is establishing a usage rate of product 
based on the run time of the system during operation. Although EPA 
thinks it is difficult to achieve accurate results, we do not have 
enough information at this time to determine that SIR or other methods 
that rely on metered data are unacceptable for use on emergency 
generator tanks. Owners and operators must carefully consider whether 
these methods meet the release detection requirement for their UST 
systems. To meet the release detection requirement, some systems may 
require reconfiguration and addition of components such as anti-siphon 
valves to separate sections of the system. Some emergency generator 
tanks use safe suction piping, in which case release detection for 
piping is not required. However, release detection technologies have 
advanced since EPA issued the 1988 UST regulation and there are now 
various options available to meet this requirement. EPA understands 
some commenters want to require owners and operators to install 
automatic line leak detectors, which only shut off at the STP or 
allowing only certain release detection methods for these systems. 
However, to provide flexibility to owners and operators while 
continuing to protect human health and the environment, this final UST 
regulation allows owners and operators to choose the most appropriate 
release detection methods, including automatic line leak detectors that 
trigger an alarm only and not necessarily shut down the pump, for their 
systems. For an unmanned facility, the alarm must be transmitted to a 
monitoring center where someone can hear or see the alarm and quickly 
respond to a suspected release.
    One commenter suggested EPA define what is mission critical as it 
relates to emergency generator tanks. While EPA acknowledges the need 
for operating emergency generator tanks during an emergency, we think 
it is unnecessary to define the term mission critical or make 
exceptions for the release detection requirement for these tanks. The 
concern is that owners and operators of these systems should not have 
to shut down their systems during an emergency if they encounter a 
suspected release. EPA understands this concern but thinks owners and 
operators can perform release detection and respond to suspected 
releases while continuing to operate the UST system.
    Emergency generator tanks are located throughout the 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. 
Based on information from these databases, EPA estimates UST systems 
storing fuel solely for use by emergency power generators represent 
approximately 3 percent of the active tank population.
    Additionally, about 20 states currently require release detection 
for emergency generator tanks. Automatic tank gauging and secondary 
containment with interstitial monitoring are the most common release 
detection methods used for emergency generator tanks. Line tightness 
testing, automatic line leak detectors, or secondary containment with 
interstitial monitoring are the most common release detection methods 
used for piping. With technology now available to detect releases from 
emergency generator tanks and because they pose a risk to human health 
and the environment, this final UST regulation removes the deferral 
from release detection.
    The 2011 proposed UST regulation required owners and operators meet 
the release detection requirement within one year of the effective date 
of the final UST regulation. Several commenters raised concerns that a 
one-year time frame to meet this requirement is insufficient for owners 
and operators to assess, budget, and install release detection. 
Commenters also wanted EPA to establish a single implementation date, 
which is consistent with effective dates for release detection on other 
previously deferred tanks. EPA agrees that extending the time frame 
will allow owners and operators sufficient time for planning and 
installing necessary equipment to meet the release detection 
requirement; but we disagree with commenters who suggested a five to 
ten year implementation date. EPA also agrees that establishing a 
single effective date, which is consistent with other effective dates 
for the release detection requirement, decreases the tracking burden on 
implementing agencies as well as owners and operators. Based on support 
for increasing the final implementation date for release detection from 
one year and EPA's goal of aligning regulatory implementation dates to 
make compliance easier for owners and operators, EPA is requiring 
owners and operators of emergency generator tanks installed on or 
before the effective date of this final UST regulation to meet the 
release detection requirement within three years of the effective date 
of this final UST regulation. Emergency generator tanks installed after 
the effective date of this final UST regulation must meet the release 
detection requirements when installed.
    The 2011 proposed UST regulation required 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

[[Page 41585]]

power generators notify implementing agencies that their systems exist. 
Commenters stated that this requirement is unnecessary because the 1988 
UST regulation excluded emergency generator tanks from only the release 
detection requirement. EPA agrees with commenters. This final UST 
regulation does not include this one-time notification requirement for 
emergency generator tanks.
2. Airport Hydrant Fuel Distribution Systems and UST Systems With 
Field-Constructed Tanks
    This final UST regulation removes the 1988 deferral and requires 
owners and operators of airport hydrant fuel distribution systems 
(referred to as airport hydrant systems) comply with applicable 
requirements. However, EPA is tailoring the requirements to the unique 
nature of airport hydrant systems. Airport hydrant systems function and 
are designed differently than conventional USTs. Unlike conventional 
USTs, airport hydrant systems consist of networks of large diameter 
underground piping operating at high pressures to deliver fuel to 
aircraft. In addition, operation and maintenance requirements for 
airport hydrant systems may differ from those for conventional UST 
systems.
    This final UST regulation removes the 1988 deferral and requires 
owners and operators of UST systems with field-constructed tanks comply 
with applicable requirements. Similar to airport hydrant systems, EPA 
is tailoring the requirements to the unique nature of field-constructed 
tanks. UST systems with field-constructed tanks (referred to as field-
constructed tanks) range from conventional sizes to very large 
capacities greater than 2 million gallons.
    A few commenters suggested EPA write regulations specifically for 
airport hydrant systems and field-constructed tanks, since they are 
distinctly different from conventional USTs. EPA agrees that airport 
hydrant systems and field-constructed tanks are different from 
conventional USTs. Additionally, EPA thinks it would help owners and 
operators if the requirements for airport hydrant systems and field-
constructed tanks are in a separate subpart of the final UST 
regulation. In order to help owners and operators of these systems 
comply, this final UST regulation adds subpart K (UST Systems with 
Field-Constructed Tanks and Airport Hydrant Fuel Distribution Systems) 
and places most regulatory requirements for both airport hydrant 
systems and field-constructed tanks in one location. Since 1988, owners 
and operators of these systems have been required to comply with the 
requirements for subparts A (Program Scope and Interim Prohibition) and 
F (Release Response and Corrective Action for UST Systems Containing 
Petroleum or Hazardous Substances).
    This final UST regulation requires airport hydrant systems and 
field-constructed tanks installed on or before the effective date of 
the final UST regulation begin meeting the requirements of subpart K 
according to the schedule below. Airport hydrant systems and field-
constructed tanks installed after the effective date of this final UST 
regulation must meet the requirements at the time of installation.

------------------------------------------------------------------------
              Requirement                         Effective date
------------------------------------------------------------------------
Upgrading UST systems, general           Three years after the effective
 operating requirements, and operator     date of this final UST
 training.                                regulation.
Release detection......................  Three years after the effective
                                          date of this final UST
                                          regulation.
Release reporting, response, and         On the effective date of this
 investigation; closure; financial        final UST regulation.
 responsibility and notification,
 except as provided in Sec.
 280.251(2)(b).
------------------------------------------------------------------------

    This final UST regulation modifies the 2011 proposed UST regulation 
by revising the definition of airport hydrant fuel distribution system 
and defining a field-constructed tank.
    An airport hydrant fuel distribution system (also called airport 
hydrant system) is defined as an UST system which fuels aircraft and 
operates under high pressure with large diameter piping that typically 
terminates into one or more hydrants (fill stands). The airport hydrant 
system begins where fuel enters one or more tanks from an external 
source, such as a pipeline, barge, rail car, or other motor fuel 
carrier.
    A field-constructed tank is defined as a tank constructed in the 
field. For example, a tank constructed of concrete that is poured in 
the field, or a steel or fiberglass tank primarily fabricated in the 
field is considered field-constructed.
Overview of Actions
Release Detection--Tanks
    This final UST regulation requires airport hydrant system tanks and 
field-constructed tanks meet these requirements:
     These tanks must be monitored using release detection 
methods specified in subpart D:
    [cir] Shop fabricated tanks and
    [cir] Field-constructed tanks with a capacity less than or equal to 
50,000 gallons
     Field-constructed tanks with a capacity greater than 
50,000 gallons must either be monitored using release detection methods 
specified in subpart D (except tanks using groundwater and vapor 
monitoring must combine that method with inventory control as described 
in the alternatives below) or use one of the alternatives below
    [cir] Conduct an annual tank tightness test that can detect a 0.5 
gallon per hour (gph) leak rate
    [cir] At least once every 30 days, use an automatic tank gauging 
system to perform release detection, which can detect a leak rate of 1 
gallon per hour or less; and at least once every three years, use a 
tank tightness test that can detect a 0.2 gallon per hour leak rate
    [cir] At least once every 30 days, use an automatic tank gauging 
system to perform release detection, which can detect a leak rate of 2 
gallons per hour or less; and at least every two years, use a tank 
tightness test that can detect a 0.2 gallon per hour leak rate
    [cir] At least every two years, perform vapor monitoring (conducted 
according to Sec.  280.43(e) for a tracer compound placed in the tank 
system) capable of detecting a 0.1 gallon per hour leak rate
    [cir] At least every 30 days, perform inventory control, conducted 
according to Department of Defense (DoD) Directive 4140.25; Air 
Transport Association (ATA) Airport Fuel Facility Operations and 
Maintenance Guidance Manual; or equivalent procedures that can detect a 
leak equal to or less than 0.5 percent of flow through and either
    [ssquf] At least every two years, perform a tank tightness test 
that can detect a 0.5 gallon per hour leak rate or
    [ssquf] At least every 30 days, perform vapor monitoring or 
groundwater monitoring (conducted according to Sec.  280.43(e) or (f), 
respectively, for the stored regulated substance)

[[Page 41586]]

    The implementing agency may approve another method of release 
detection if the owner or operator can demonstrate the method can 
detect a release as effectively as any of methods listed above. In 
comparing methods, the implementing agency shall consider the size of 
release the method can detect and frequency and reliability of 
detection.
Release Detection--Piping
    Underground piping associated with field-constructed tanks less 
than or equal to 50,000 gallons must meet the release detection 
requirements in subpart D of the final UST regulation.
    Underground piping associated with airport hydrant systems and 
field-constructed tanks greater than 50,000 gallons must meet these 
requirements:
     Piping must be monitored using release detection methods 
specified in subpart D, except that piping using groundwater and vapor 
monitoring must combine that method with inventory control as described 
in the alternatives below, or
 Use one of these alternatives
    [cir] Perform a semiannual or annual line tightness test at or 
above operating pressure according to the table below

           Maximum Leak Detection Rate per Test Section Volume
------------------------------------------------------------------------
                                            Semiannual
                                            test--leak     Annual test--
                                             detection    leak detection
      Test section volume (gallons)        rate not  to     rate not to
                                              exceed          exceed
                                           (gallons per    (gallons per
                                               hour)           hour)
------------------------------------------------------------------------
=50,000 to =75,000 to =100,000...............................             3.0            1.5
------------------------------------------------------------------------

    Piping segment volumes greater than or equal to 100,000 gallons, 
which are not capable of meeting the 3 gallons per hour leak rate for 
semiannual testing, may be tested at a leak rate up to 6 gallons per 
hour according to this schedule:

        Phase In for Piping Segments >=100,000 Gallons in Volume
------------------------------------------------------------------------
 
------------------------------------------------------------------------
First test...........................  Not later than three years after
                                        the effective date of this final
                                        UST regulation (may use up to 6
                                        gph leak rate).
Second test..........................  Between three and six years after
                                        the effective date of this final
                                        UST regulation (may use up to 6
                                        gph leak rate).
Third test...........................  Between six and seven years after
                                        the effective date of this final
                                        UST regulation (must use 3 gph
                                        leak rate).
Subsequent tests.....................  Beginning seven years after the
                                        effective date of this final UST
                                        regulation, use semiannual or
                                        annual line testing according to
                                        the Maximum Leak Detection Rate
                                        Per Test Section Volume table
                                        above.
------------------------------------------------------------------------

    [cir] At least every two years, perform vapor monitoring according 
to Sec.  280.43(e) for a tracer compound placed in the tank system 
capable of detecting a 0.1 gallon per hour leak rate
    [cir] At least every 30 days, perform inventory control, conducted 
according to DoD Directive 4140.25, ATA Airport Fuel Facility 
Operations and Maintenance Guidance Manual, or equivalent procedures, 
that can detect a leak equal to or less than 0.5 percent of flow 
through and either
    [ssquf] At least every two years, perform a line tightness test 
using the leak detection rate for the semiannual test in Sec.  
280.252(d)(2(i) or
    [ssquf] At least every 30 days, perform vapor monitoring or 
groundwater monitoring (conducted according to Sec.  280.43(e) or (f), 
respectively, for the stored regulated substance) or

     The implementing agency may approve another method of 
release detection if the owner or operator can demonstrate that the 
method can detect a release as effectively as any of the methods listed 
above; in comparing methods, the implementing agency shall consider the 
size of release the method can detect and the frequency and reliability 
of detection.
Release Prevention
    This final UST regulation requires airport hydrant systems and 
field-constructed tanks meet corrosion protection, spill, overfill, and 
walkthrough inspection requirements. Corrosion protection installed on 
airport hydrant systems and field-constructed tanks must meet either:

 New tank and piping standards described in Sec.  280.20, 
except that new and replaced hydrant piping and piping associated with 
field-constructed tanks greater than 50,000 gallons need not be 
secondarily contained or
 Airport hydrant systems and field-constructed tanks installed 
on or before the effective date of the final UST regulation must either 
meet the corrosion protection upgrade requirements in Sec.  
280.252(b)(1) or the new tank and piping standards described above

    Airport hydrant systems and field-constructed tanks installed on or 
before the effective date of the final UST regulation that are not 
upgraded according to Sec.  280.252(b) within three years of the 
effective date of the final UST regulation must be permanently closed 
according to subpart G. The presence of an internal lining does not 
meet the corrosion protection upgrade requirement.
    Owners and operators of airport hydrant systems and field-
constructed tanks must install spill and overfill prevention equipment 
and meet the

[[Page 41587]]

periodic spill testing and overfill inspection requirements of Sec.  
280.35. Owners and operators must install the equipment and conduct the 
first spill test and overfill inspection no later than three years 
after the effective date of this final UST regulation and every three 
years thereafter. For airport hydrant systems brought into use after 
the effective date of this final UST regulation, spill and overfill 
prevention equipment requirements must be met at installation.
    Owners and operators must conduct walkthrough inspections that meet 
the requirements of Sec.  280.252(c). Owners and operators must conduct 
the first inspection within three years after the effective date of the 
final UST regulation. In addition to the items inspected as part of the 
walkthrough inspection for other regulated UST systems, owners and 
operators of airport hydrant systems must inspect hydrant pits and 
hydrant piping vaults every 30 days for areas that do not require 
confined space entry according to the Occupational Safety and Health 
Administration (OSHA) and annually for areas that do require confined 
space entry. Owners and operators must keep documentation of the 
inspection according to Sec.  280.36(b).
Notification
    This final UST regulation requires owners and operators of 
regulated airport hydrant systems and field-constructed tanks meet 
these notification requirements:

 For airport hydrant systems and field-constructed tanks 
currently installed, owners and operators must submit no later than 3 
years after the effective date of this final UST regulation a one-time 
notification to their implementing agency that their systems exist
 For airport hydrant systems and field-constructed tanks 
installed after the effective date of the final UST regulation, owners 
and operators must provide their implementing agency a notification of 
each newly installed system within 30 days of bringing each system into 
use
 Owners must provide their implementing agency a notification 
of ownership change for each newly acquired airport hydrant system or 
field-constructed tank within 30 days of the date on which the new 
owner assumes ownership
Financial Responsibility
    This final UST regulation requires owners and operators of airport 
hydrant systems and field-constructed tanks that have not been 
permanently closed meet the financial responsibility requirements in 
subpart H at the time the one-time notification of existence is 
submitted to the implementing agency. Owners and operators who install 
these systems after the effective date of this final UST regulation 
must meet the financial responsibility requirements at installation. 
This requirement does not apply to state or federal owners of airport 
hydrant systems and field-constructed tanks.
Partially Excluded Components
    This final UST regulation excludes aboveground storage tanks 
associated with airport hydrant systems and field-constructed tanks 
from the requirements of subparts B, C, D, E, G, J, and K. Owners and 
operators are still required to comply with subparts A (Program Scope 
and Installation Requirements for Partially Excluded UST Systems); and 
F (Release Response and Corrective Action for UST Systems Containing 
Petroleum or Hazardous Substances) for these tanks.
Operator Training
    This final UST regulation requires owners and operators of airport 
hydrant systems and field-constructed tanks meet the operator training 
requirements in subpart J.
Closure Requirements for Previously Closed Tanks
    When directed by the implementing agency, owners and operators of 
airport hydrant systems and field-constructed tanks permanently closed 
before the effective date of this final UST regulation must assess the 
excavation zone and close the UST system according to subpart G if 
releases from the UST may, in the judgment of the implementing agency, 
pose a current or potential threat to human health and the environment.
Background
    Tanks and piping associated with airport hydrant systems and field-
constructed tanks can store millions of gallons of fuel and handle 
large volumes of regulated substances on a daily basis. Leaks from 
these systems can contaminate subsurface soil beneath the airport apron 
and runways, groundwater, and nearby surface water systems, posing a 
significant risk to human health and the environment. As a result, EPA 
is removing the deferral.
    Some commenters indicated EPA needed to justify that airport 
hydrant systems and field-constructed tanks are leaking in order to 
regulate them. The 1988 UST regulation required owners and operators 
report only confirmed releases from these tanks to implementing 
agencies. Owners and operators were not required to report suspected 
releases to implementing agencies, which sometimes resulted in gaps for 
ensuring proper site investigations or transmission of sufficient 
release information. As a result, implementing agencies have little to 
no available historical records regarding releases of regulated 
substances from airport hydrant systems and field-constructed tanks.
    In the 2011 proposed UST regulation, EPA provided details on 
several releases that previously occurred at airport hydrant systems. 
Since that time, EPA identified additional information on releases from 
both DoD and commercial airport hydrant systems. For example, at 
Hartsfield Jackson International Airport in Georgia, active remediation 
and free product recovery is ongoing (as of 2014) due to a 1988 release 
of an estimated 14,000 gallons of jet fuel.\44\ In 2003, an estimated 
100,000 gallons of jet fuel leaked from the valves and flanges of an 
airport hydrant system at Minneapolis-St. Paul International Airport in 
Minnesota. Some of the jet fuel was released into the sanitary sewer 
and nearby waterway. During the investigation of the jet fuel release, 
personnel discovered a second jet fuel leak at a different concourse; 
this leak impacted the stormwater system and produced oily sheens in 
the Minnesota River. Responsible parties agreed to pay civil penalties 
and complete environmental projects, including continued site 
remediation and fuel recovery.\45\ In 1983 at Camp Lejeune, North 
Carolina, investigators discovered multiple feet of free product while 
using a hand auger to investigate the cause of a fuel inventory 
discrepancy.\46\ In addition, from the 1960s to the 1980s, thousands of 
gallons of jet fuel leaked from a former airport hydrant system at Pope 
Air Force Base, North Carolina. At one time, it was noted that as much 
as 75,000 gallons of free product was floating on top of the 
groundwater because of these releases. As of 2014, the site is 
undergoing remediation.\47\ In addition, at Marine Corps Air Station 
Cherry Point, North Carolina there have been multiple releases from the 
airport

[[Page 41588]]

hydrant system underground piping. The station was cited twice in the 
1990s for contaminating soil and groundwater under this fuel facility 
due to leaking tanks or fuel spills. An extensive environmental 
remediation effort is underway in 2014 to clean this site. 
Contamination from many of the releases combined and migrated to form a 
single plume.
---------------------------------------------------------------------------

    \44\ Corrective Action Plan--Part B: Hartsfield-Jackson 
International Airport, Concourse Pit. Number 19 Fuel Spill.
    \45\ http://www.pca.state.mn.us/index.php/about-mpca/mpca-news/
current-news-releases/news-release-archive-2005/airport-agrees-to-
pay-$540000-for-environmental-violations.html?nav=0.
    \46\ http://www.tftptf.com/New_ATSDR3/RR_DRAFT_RAO.pdf.
    \47\ Federal Remediation Technologies Roundtable Abstracts of 
Remediation Case Studies, Volume 3 http://epa.gov/tio/download/frtr/abstractsvol3.pdf.
---------------------------------------------------------------------------

    In the 2011 proposed UST regulation, EPA also provided details on 
several previous releases that occurred from field-constructed tanks. 
Since that time, EPA identified additional anecdotal information on 
releases from field-constructed tanks. At Adak Island, Alaska's Tank 
Farm A, records show fuel was released at various times from 21,000 to 
420,000 gallon field-constructed tanks and piping. As of 2014, all 
tanks have been removed, but the former fuel farm is still undergoing 
remediation through long term monitoring and monitored natural 
attenuation.\48\ Also at Adak Island, an overfill during a fuel 
transfer caused 142,800 gallons of diesel fuel to leak from a 4.8 
million gallon underground field-constructed tank into the immediate 
and surrounding environment, causing harm to native wildlife.\49\
---------------------------------------------------------------------------

    \48\ Tank Farm A http://dec.alaska.gov/Applications/SPAR/CCReports/Site_Report.aspx?Hazard_ID=686.
    \49\ http://www.darrp.noaa.gov/northwest/adak/pdf/ADAK_DARPEA_FINAL_Draft%20PDF.pdf.
---------------------------------------------------------------------------

    Releases can have a major impact on human health and the 
environment. Release prevention equipment, regular release detection 
tests, operator training, periodic walkthrough inspections, and proper 
operation and maintenance are keys to preventing and quickly 
identifying releases before they contaminate the surrounding 
environment. This final UST regulation adds these requirements for 
airport hydrant systems and field-constructed tanks in order to help 
prevent and quickly detect leaks from these systems into the 
environment.
Definition of an Airport Hydrant System
    The 1988 UST regulation did not provide a definition for airport 
hydrant system. In the 2011 proposed UST regulation, EPA provided a 
definition of an airport hydrant system to clarify what components 
would be regulated. However, that definition was based on an airport 
hydrant system that received fuel at a single delivery point, designed 
with all components operating in tandem, and included only the 
immediate piping and tank directly feeding the airport hydrant piping. 
To clarify for owners and operators, EPA presented scenarios of typical 
airport hydrant systems in a guidance document provided during the 
public comment period.
    After publishing the 2011 proposed UST regulation, EPA met with 
stakeholders to gather more information on airport hydrant system 
design and operation.50 51 EPA also provided another 
iteration of the schematics that contained better defined airport 
hydrant system scenarios. However, some commenters still were confused 
about which specific components of an airport hydrant system would be 
regulated.\52\
---------------------------------------------------------------------------

    \50\ January 28, 2012, March 29, 2012, and October 19, 2012 
meetings with representatives from Airlines for America.
    \51\ February 28, 2013 and March 18, 2013 meetings with DoD's 
Defense Logistics Agency Energy.
    \52\ Airport Hydrant Systems Scenarios Revised, dated February 
28, 2012.
---------------------------------------------------------------------------

    Many commenters requested that EPA provide guidance on how to 
perform the calculations to determine whether the airport hydrant 
system meets the definition of an underground storage tank and 
requested clarification of system components. In response to these 
comments, EPA is providing guidance below.
    In order for an airport hydrant system to be subject to the final 
UST regulation, it must first meet the definition of an underground 
storage tank. Airport hydrant systems are not regulated UST systems 
under 40 CFR part 280, unless 10 percent or more of the total capacity 
of the system is beneath the surface of the ground. When performing the 
calculation, include all tanks and underground piping that are part of 
the airport hydrant system. An airport hydrant system may have one or 
more of the following connected together: Aboveground tanks, 
underground tanks, field-constructed tanks, or factory constructed 
tanks. Below are two examples. Note that aboveground piping is not 
included when calculating the total volume.
    Example 1: A 1 million gallon aboveground storage tank (AST) 
connected to underground piping with a capacity of 100,000 gallons does 
not meet the definition of an UST, as explained below:

1 million gallons (AST) + 100,000 gallons (underground pipe) = 1.1 
million gallons total volume
1.1 million gallons x 10% = 110,000 gallons

    The volume of the underground piping (100,000 gallons) is less than 
10 percent of the total volume of the tanks and underground piping 
(110,000 gallons).
    Example 2: A 2 million gallon AST feeds two 100,000 gallon field-
constructed underground storage tanks and two 50,000 gallon underground 
tanks constructed in the factory which feed 100,000 gallons of 
underground hydrant piping. Calculating these values yields a total 
system capacity of 2,400,000 gallons with 400,000 gallons underground. 
More than 16% of this airport hydrant system is underground making it 
an UST.
    In response to comments on the proposed definition, EPA is 
clarifying the definition of an airport hydrant system in this final 
UST regulation. EPA determined that multiple tanks grouped or 
interconnected together can function as one system to fuel an airport 
hydrant system. EPA agrees with commenters that it would not be 
feasible to separate these tanks to define an airport hydrant system. 
EPA also found that other tanks not directly connected to the 
underground airport hydrant piping also could feed the airport hydrant 
system. The Agency is concluding that an airport hydrant system may 
consist of interconnected aboveground and underground storage tanks 
(that could be constructed in the factory or field-constructed) and 
piping that function as integral and interchangeable components of the 
fueling system. Field-constructed tanks that are part of the airport 
hydrant system are treated as part of the airport hydrant system and 
not independent UST systems that are field-constructed. The airport 
hydrant system begins when regulated substance enters from an external 
source such as a pipeline, barge, rail car, or other motor vehicle 
carrier, but does not include the external source. Airport hydrant 
systems use large diameter piping and operate at pressures higher than 
those of a conventional UST. This final definition alleviates 
stakeholder uncertainty on which components of an airport hydrant 
system must meet the UST regulation by including all integral 
components that form an airport hydrant system and deliver fuel to the 
aircraft. These systems include underground piping and ASTs or USTs 
that hold aircraft fuel (for example, settling tanks or product 
recovery tanks). They do not include tanks or underground piping not 
storing aircraft fuel (for example, additive tanks) or tanks and 
underground piping not connected to the airport hydrant system (for 
example, a system that fuels an emergency power generator for a pump 
house). In addition, EPA is aware there may be instances where an 
airport hydrant system might include permanently installed dispensing

[[Page 41589]]

equipment at the end of the hydrant piping instead of a fill stand. 
However, since these systems still operate under high pressure and 
contain large diameter piping, we consider them to be airport hydrant 
systems.
Definition of a Field-Constructed Tank
    The preamble to the 1988 UST regulation described a field-
constructed tank as a tank usually constructed of steel or concrete and 
shaped like flat vertical cylinders, with a capacity of greater than 
50,000 gallons. Tanks that are primarily factory built, but assembled 
in the field, are considered factory built tanks. For example, welding 
two halves of a factory constructed tank together in the field does not 
qualify the tank as a field-constructed tank. Several commenters 
requested EPA define field-constructed tank in the final UST regulation 
in order for implementing agencies and owners and operators to know 
which tanks are applicable. While EPA thinks this term is self-evident, 
this final UST regulation defines field-constructed tank as a tank 
constructed in the field. For example, a tank constructed of concrete 
that is poured in the field, or a steel or fiberglass tank primarily 
fabricated in the field is considered field-constructed. Please note 
this definition excludes those tanks with components primarily 
manufactured in a factory with minimal assembly in the field. EPA 
considers those tanks are factory built tanks. Field-constructed tanks 
vary from sizes smaller than 50,000 gallons to sizes very large in 
capacity. Large capacity tanks may exceed size or shape limitations 
that prohibit transportation of the tank in whole to the UST site. 
Field-constructed tanks present an engineering, design, or 
transportation concern that cannot be addressed by fabrication in a 
factory or are more ideally addressed through in-field construction. 
This definition includes tanks that are mounded or partially buried, 
such as those defined in 40 CFR part 112, if 10 percent or more of the 
volume of the system is beneath the ground's surface or otherwise 
covered with earthen material. EPA considers a field-constructed tank 
that is part of a wastewater treatment system to be partially excluded 
from the final UST regulation according to Sec.  280.10(c). See section 
C-3 for additional information on the partial exclusion for wastewater 
treatment tank systems.
Universe of Field-Constructed Tanks and Airport Hydrant Systems 
Affected
    UST systems with field-constructed tanks are generally very large 
and, in the event of a release, pose a substantial threat to human 
health and the environment. Typical tank sizes range from 20,000 
gallons to greater than 2 million gallons. EPA is aware of 
approximately 330 UST systems with field-constructed tanks owned by the 
Department of Defense and 12 field-constructed tanks owned by the 
Department of Energy (DOE).
    One commenter objected to EPA regulating airport hydrant systems 
because the 2011 proposed UST regulation addressed airport hydrant 
systems at military facilities and did not include systems at 
commercial airports. When issuing the 2011 proposed UST regulation, EPA 
thought the universe of these systems was mainly owned by DoD, based on 
information from DoD and commercial airport representatives. The 2011 
proposed UST regulation also assumed the universe included two 
commercial airports with airport hydrant systems. Airlines for America 
(A4A, formerly known as Air Transport Association of America, Inc.) 
provided additional information during the public comment period that 
suggested nine commercial airports would be affected by the final UST 
regulation. As a result of the comments received, EPA did extensive 
research to confirm which commercial airports might be affected by the 
final UST regulation. EPA met with personnel from DoD and from eight of 
the nine suggested commercial airport facilities to gather additional 
information and determine the universe of airport hydrant systems that 
would have to comply with the final UST 
regulation.53 54 55 56 Additionally, EPA listened to 
concerns and answered questions about the 2011 proposed UST regulation. 
EPA also met with release detection vendors to determine whether 
commercial airports and DoD facilities could achieve release detection 
compliance within the specified time frames.57 58 59 EPA 
concluded that of the nine airports A4A named, eight would possibly be 
affected by the final UST regulation. Based on these meetings, EPA 
found that most of the commercial airport hydrant systems have release 
prevention and detection equipment currently installed on them and 
airport personnel are already performing various activities that can be 
modified to meet the final UST regulation.
---------------------------------------------------------------------------

    \53\ Discussions With Commercial Airports That May Be Affected 
By The Final UST Regulation dated February 6, 2013.
    \54\ Note that EPA did not meet with personnel from Indianapolis 
International Airport however, A4A and vendors stated that the 
airport hydrant system is equipped with the necessary equipment to 
meet requirements in the final UST regulation.
    \55\ January 28, 2013 and March 29, 2012 meetings with A4A.
    \56\ February 28, 2013 and March 18, 2013 meetings with DoD's 
Defense Logistics Agency Energy.
    \57\ June 20, 2012 and May 19, 2013 meeting with Hansa Consult 
of North America, LLC.
    \58\ June 20, 2012 meeting with VISTA Precision Solutions.
    \59\ August 15, 2012 meeting with Ken Wilcox and Associates.
---------------------------------------------------------------------------

Process for Obtaining Public Comment
    One commenter suggested that EPA:

 Did not follow all requirements to allow stakeholder input 
prior to issuing the 2011 proposed UST regulation
 Did not allow stakeholders adequate time to provide comments
 Failed to follow the correct public notice procedures
 Failed to inform stakeholders of two commercial airports that 
might be affected by the final UST regulation
 May have led commercial airport stakeholders to doubt that any 
commercial airport hydrant systems would be affected by the final UST 
regulation
    The commenter also suggested EPA should withdraw the 2011 proposed 
UST regulation because the administrative record and resulting proposal 
conflicted with Executive Order 13563 (Improving Regulation and 
Regulatory Review).\60\

    \60\ On January 18, 2011, President Obama issued Executive Order 
13563, which directed federal agencies to develop a preliminary plan 
which outlined the agency's approach for periodically reviewing 
regulations to determine whether any rules ``should be modified, 
streamlined, expanded, or repealed so as to make the agency's 
regulatory program more effective or less burdensome in achieving 
the regulatory objectives.''
---------------------------------------------------------------------------

    EPA disagrees with these comments. We performed extensive 
stakeholder outreach both prior to developing the 2011 proposed UST 
regulation and during the public comment period. In addition, EPA 
followed procedures required by the Administrative Procedure Act for 
providing public notice and requesting public comment through the 
Federal Register. In order to allow additional time for airport 
authorities to perform a preliminary assessment and respond to the 2011 
proposed UST regulation, EPA extended the public comment period by two 
months as requested by commenters.\61\ EPA met with all interested 
stakeholders who requested meetings, including representatives of 
commercial airports. EPA carefully researched information provided 
during the public comment period; this included verifying methods of 
release detection currently

[[Page 41590]]

in use at commercial airports and DoD facilities, as well as what 
methods would be technically feasible at those facilities. When issuing 
the 2011 proposed UST regulation, EPA thought Lambert-St. Louis 
International Airport and Denver International Airport were the only 
commercial airports that would be affected by the final UST regulation. 
EPA identified these airports in a meeting with Airlines for America. 
During that meeting, the Agency also received additional information on 
other airports possibly affected by the proposal.\62\ While EPA did not 
specifically identify the two commercial airports that would 
potentially be affected by the final UST regulation, the 1988 UST 
regulation has been in effect for over two decades and portions of it 
have applied to airport hydrant systems since that time. Owners and 
operators of these systems have been required to comply with those 
applicable portions of the UST regulation since 1988, and it has been 
the responsibility of owners and operators to determine whether their 
airport hydrant systems are regulated since the effective date of the 
1988 UST regulation. Nonetheless, EPA stated in the 2011 proposed UST 
regulation that airport hydrant systems are ``. . . mainly owned by the 
Department of Defense (DoD) . . .,'' not that DoD is the sole owner of 
all airport hydrant systems. This statement indicates there are non-DoD 
owned airport hydrant systems that could be affected by this final UST 
regulation.
---------------------------------------------------------------------------

    \61\ January 5, 2012 request from A4A for a 60-day extension for 
more time to review and query its membership and potentially 
affected airports for a more complete understanding of the 2011 
proposed UST regulation and potential costs.
    \62\ January 28, 2012 meeting with A4A.
---------------------------------------------------------------------------

Impacts of Regulating Airport Hydrant Systems and Field-Constructed 
Tanks
    Commenters generally supported removing the deferral for these 
systems. However, there were some commenters who opposed regulating 
these systems. A few commenters were concerned about the costs for 
owners and operators to comply with the release detection requirements 
of the final UST regulation. EPA acknowledges that some release 
detection methods may result in additional costs to owners and 
operators. However, EPA carefully researched current release detection 
efforts at commercial airports and DoD facilities and used that 
information to estimate costs. See the RIA, which is available in the 
docket for this action, for additional information about how we 
estimated costs.
Other Regulations That Affect Airport Hydrant Systems and Field-
Constructed Tanks
    To avoid overlapping regulations, several commenters suggested EPA 
evaluate other requirements that owners and operators of airport 
hydrant systems and field-constructed tanks perform as part of fuel 
management programs. One commenter also asserted that this evaluation 
was necessary to comply with Executive Order No. 13563.\63\ After 
issuing the 2011 proposed UST regulation, EPA performed this evaluation 
by gathering information on fuel management programs (such as release 
prevention, repairs, operation and maintenance, inspections, and 
operator training) owners and operators at these facilities must 
perform in order to meet other federal, state, and industry 
regulations.\64\ For example, EPA found that requirements administered 
by the Federal Aviation Authority (FAA), such as 14 CFR part 139 
(Certification of Airports), and directives, such as ATA 103 and United 
Facilities Criteria (UFC) 3-460-03, require owners and operators of 
airport hydrant systems inspect airport hydrant systems and connected 
components. EPA also found that 14 CFR part 139 (Certification of 
Airports) emphasizes overall airport safety practices.
---------------------------------------------------------------------------

    \63\ Executive Order 13563 requires federal agencies to avoid 
implementing unnecessary redundant requirements and promulgate 
regulations that are less burdensome to the regulated community.
    \64\ EPA performed an assessment of the following additional 
requirements that owners and operators follow: 40 CFR part 112 
(SPCC); 14 CFR part 139 (FAA); A4A 123; ATA 103; ATA O&M Guidance; 
UFC 3-460-1 [Proposed UST Requirements Compared To Existing Facility 
Requirements And Recommended Practices].
---------------------------------------------------------------------------

    One commenter asked whether EPA evaluated the SPCC requirements for 
regulating underground portions of airport hydrant systems. Another 
commenter suggested that EPA evaluate the effectiveness of existing 
state requirements for field-constructed tanks.\65\ EPA is aware that 
commercial airports and DoD facilities comply with SPCC requirements 
for their airport hydrant systems and field-constructed tanks. However, 
UST and SPCC regulations are complementary. The SPCC regulation focuses 
on oil discharges that could impact navigable waters, while the UST 
regulation focuses mainly on day-to-day maintenance and operation to 
prevent releases to soil and groundwater. For example, the SPCC 
regulation requires a tank inspection, such as an American Petroleum 
Institute (API) Standard 653 inspection, which ensures aboveground 
storage tanks and piping are structurally sound. In addition, 
regulatory overlap is mitigated by the SPCC regulation, which allows 
UST release detection as a method to meet its tank inspection 
requirement. The SPCC regulation requires owners and operators conduct 
integrity and leak testing of buried piping at the time of 
installation, modification, construction, relocation, or replacement, 
but does not specify a method, frequency, or leak rate. The UST 
regulation is more specific and requires periodic release detection 
testing of underground piping.
---------------------------------------------------------------------------

    \65\ New York allows owners and operators to perform a modified 
American Petroleum Institute Standard 653 inspection combined with 
monitoring well release detection for large field-constructed tanks.
---------------------------------------------------------------------------

    EPA thinks that other regulatory programs (such as SPCC and FAA) 
lack the necessary specificity or do not meet equivalency criteria we 
deem are necessary for these UST systems. Additionally, even though 
some A4A documents provide many recommended practices that owners and 
operators of airport hydrant systems and field-constructed tanks may 
follow for their fuel management programs, these practices are not 
regulatory requirements, and airports have the option of following 
them. Moreover, EPA developed a final UST regulation that is cost 
effective to the extent practical and is the least burdensome to owners 
and operators, yet still protects human health and the environment. 
This final UST regulation does not impose redundant requirements. 
Rather, it contains complementary requirements that will protect human 
health and the environment.
Effect on Airport Operations
    One commenter suggested the requirements in the 2011 proposed UST 
regulation were not legally or technically viable for commercial 
airports. That commenter said EPA should develop a separate regulation 
specific to commercial airport hydrant systems. In addition, a few 
commenters were concerned that removing the deferral for airport 
hydrant systems would cause service disruptions due to installing 
release prevention and detection equipment. Those commenters also said 
performing release prevention and detection would cause massive service 
delays, affect military missions, and threaten national security and 
the National Airspace System.
    Based on discussions with DoD prior to issuing the 2011 proposed 
UST regulation and talking to DoD and potentially affected airports 
after issuing it, EPA concluded that most facilities already have the 
necessary equipment to meet many of the requirements in the final UST 
regulation. EPA also concluded from those conversations that release 
detection is normally performed during service downtimes or when

[[Page 41591]]

operations are minimal. Some airport hydrant systems have the 
capability of transferring product flow to other sections of the 
airport hydrant system to avoid system downtime. DoD stated that leak 
testing is performed according to prescribed requirements in Florida 
and California and at least biennially in other states when funding 
allows. Where feasible, piping is normally tested in segments to meet 
testing leak rates; piping segments can be isolated to find leaks more 
efficiently. EPA learned that some airport hydrant systems are capable 
of bypassing areas when airport hydrant piping is being tested; this 
avoids total system shutdown and allows continued airport operation. In 
addition, many airport personnel perform daily operations and 
maintenance activities, such as hydrant pit inspections and leak 
monitoring, on airport hydrant system components to avoid product loss, 
ensure fuel quality, and ensure personnel safety.
    This final UST regulation incorporates many of those tasks that 
operators normally perform regularly to prevent and detect leaks from 
these systems. However, to meet the final UST regulation, owners and 
operators may need to make minor modifications to their current 
activities. Since many airports have mechanisms in place and are 
already performing release monitoring, meeting requirements in the 
final UST regulation will not severely affect airport operations or 
cause service delays severe enough to significantly affect the military 
mission or disrupt the National Airspace System. EPA concluded that the 
information we gathered since issuing the 2011 proposed UST regulation 
supports regulating these systems as required in the final UST 
regulation. In addition, this final UST regulation includes changes to 
ensure compliance requirements are less disruptive and further mitigate 
concerns regarding service disruptions, such as adding options owners 
and operators may use to meet the release detection requirement.
Implementation Time Frame
    EPA is aware that this final UST regulation adds new requirements 
for owners and operators, as well as implementing agencies which have 
not fully regulated airport hydrant systems and field-constructed tanks 
in the past. A few commenters voiced concerns that the proposed 
implementation time frames would not give owners and operators, or 
implementing agencies, adequate time to assess these systems and 
determine the proper course of action. EPA thinks providing a single 
effective date is important because it reduces the burden on 
implementing agencies, owners, and operators to track various 
compliance deadlines. EPA is also allowing owners and operators who use 
periodic tightness testing for certain piping to phase in release 
detection requirements up to seven years. Additionally, EPA thinks 
three years gives owners and operators sufficient time for planning and 
installing necessary equipment to meet the requirements in this final 
UST regulation.
Other Comments
    Commenters generally supported changing the applicability date for 
previously closed systems of airport hydrant systems and field-
constructed tanks, giving implementing agencies the flexibility to 
require a site assessment and proper closure of systems closed between 
the effective date of the 1988 UST regulation and this final UST 
regulation. EPA agrees with commenters. As a result, this final UST 
regulation requires owners and operators of field-constructed tanks and 
airport hydrant systems, which were permanently closed before the 
effective date of this final UST regulation, to conduct a site 
assessment and close the UST system according to the closure 
requirements if directed to do so by the implementing agency.
    In the 2011 proposed UST regulation, EPA asked commenters if we 
should consider alternative options for closing very large UST systems 
in place. Most commenters recommended that large field-constructed 
tanks either be removed or filled with an inert solid material to 
prevent releases of residual contamination to the environment. Others 
suggested EPA allow some flexibility when closing these UST systems in 
place. EPA agrees with commenters that implementing agencies may need 
to have more flexibility in addressing these systems at closure. EPA is 
modifying the closure requirement in Sec.  280.71(b) of the final UST 
regulation to allow closure in place in a manner approved by the 
implementing agency. This addition provides implementing agencies the 
option to determine that owners and operators may close the UST system 
in place without filling it with an inert solid material.
    One commenter recommended that EPA, in the final UST regulation, 
directly reference the military construction standard associated with 
field-constructed tank design and construction discussed in the 
preamble to the 2011 proposed UST regulation. EPA agrees with the 
commenter and is adding the military construction criteria UFC 3-460-
01--Petroleum Fuel Facilities to this final UST regulation.\66\ 
Although design standards are now available for aboveground field-
constructed tanks, EPA is not aware of standards written according to a 
national code of practice developed by a nationally recognized or 
independent testing laboratory for non-military field-constructed tanks 
and airport hydrant systems. If demand arises and a commercial standard 
is not developed to address the need, owners and operators may use the 
UFC, where applicable.
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    \66\ UFC 3-460-01--Petroleum Fuel Facilities is a military 
construction criteria that includes basic requirements for the 
design of fueling systems; the design of receiving, dispensing, and 
storage facilities; ballast treatment and sludge removal; corrosion 
and fire protection; and environmental requirements.
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Release Detection
Background
    In the preamble to the 1988 UST regulation, EPA discussed the large 
volumes of product throughput, large capacities, and long lengths of 
large diameter piping for airport hydrant systems. At the time, EPA 
believed release detection was not feasible for airport hydrant 
systems. These systems were monitored for releases periodically, but no 
single leak test existed as an industry standard. Inventory control was 
often used, but its sensitivity was limited due to the large product 
volumes airport hydrant systems typically handle. To allow more time 
for gathering information, EPA in the 1988 UST regulation deferred 
regulating airport hydrant systems from release detection requirements 
in subpart D. EPA also deferred UST systems with field-constructed 
tanks from most requirements in the 1988 UST regulation, due to a 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 or airport hydrant systems.
Challenges of Conventional Release Detection Methods
    Standard release detection methods can successfully test and detect 
releases on pressurized piping at commercial service stations, but that 
is not the case for airport hydrant systems and large diameter piping 
associated with field-constructed tanks. For a variety of reasons, the 
piping of most airport hydrant systems and field-constructed tanks 
cannot meet release detection

[[Page 41592]]

requirements in the 1988 UST regulation. High product throughput makes 
it difficult and expensive to achieve the same leak rate thresholds 
established for traditional UST systems within a reasonable time frame. 
Product temperature fluctuations present challenges for release 
detection testing of conventional underground piping. However, release 
detection for piping of airport hydrant systems and large diameter 
piping associated with field-constructed tanks poses greater 
challenges. As temperatures fluctuate, product expands or contracts, 
increasing or decreasing product volume and pressure. The magnitude of 
piping associated with these systems creates an even greater 
temperature fluctuation; there are varying temperature gradients 
throughout the length of piping. Fluctuating line pressure during a 
release detection test can mask an existing release or falsely indicate 
one occurred. In addition, the out of service period needed to test 
airport hydrant piping could range from one to several days after the 
last product transfer.
    Removing airport hydrant systems from service for extended periods 
will greatly impede their purpose of rapid and timely delivery of fuel 
to aircraft. When using pressure based testing methods to produce 
accurate leak test results, airport hydrant system piping needs to be 
isolated in appropriately sized segments. Some airport hydrant systems 
have numerous isolation points with connections for release detection 
equipment. Others have longer underground piping segments with 
isolation valves for testing located up to 0.5 miles apart. The greater 
the volume of a segment, the more time it takes to obtain a valid 
result at a given leak rate. Although technology is available, it may 
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.
    EPA also 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 
subpart D 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. EPA acknowledges the complexities in 
performing release detection on tanks significantly larger than 50,000 
gallons. It is critical to allow sufficient time for a tank to reach a 
state of equilibrium prior to performing a test. As tank size 
increases, the time for a tank to reach an equilibrium increases 
significantly. Based on discussions with release detection vendors, 
many larger tanks require multiple inactive days to yield an accurate 
test result.
    DoD owns most UST systems with field-constructed tanks. Taking 
these tanks out of service for multiple days to meet the 1988 release 
detection requirement would, in some cases, impede DoD's mission, be 
impractical to sustain, and result in significant costs.
Release Detection Is Now Available
    While release detection used for conventional USTs may not work 
well for airport hydrant systems and field-constructed tanks greater 
than 50,000 gallons, release detection methods specifically designed 
for these UST systems are now available. Over the last 25 years, the 
petroleum services industry has developed release detection 
technologies for airport hydrant systems and field-constructed tanks. 
The NWGLDE lists Large Diameter Line Leak Detection Method (6 Inches 
Diameter Or Above) and Bulk Underground Storage Tank Leak Detection 
Method (50,000 Gallons Or Greater), both of which identify methods 
capable of detecting releases from airport hydrant systems and field-
constructed tanks.\67\ EPA contacted several vendors to determine the 
strengths and limitations of release detection methods for these UST 
systems. EPA also talked with DoD's Defense Logistics Agency (DLA) 
Energy \68\ about challenges in addressing release detection 
requirements in states, such as California, which do not defer airport 
hydrant systems from release detection. Because they perform release 
detection on airport hydrant systems in other states, DLA Energy has 
significant information about airport hydrant system release detection. 
As of this final UST regulation, some state UST programs require 
release detection for UST systems with field-constructed tanks and 
airport hydrant systems.\69\
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    \67\ National Work Group On Leak Detection Evaluation's List Of 
Leak Detection Evaluations For Storage Tank Systems. http://www.nwglde.org/.
    \68\ Defense Logistics Agency Energy was formerly known as 
Defense Energy Support Center.
    \69\ Tasks 2-4, Work Assignment 1-25: Preliminary Assessment and 
Scoping of Data Related to Potential Revisions to the UST 
Regulations; Industrial Economics (IEc) Inc. identified 17 state UST 
programs that regulate airport hydrant systems. EPA's Office of 
Underground Storage Tanks gathered additional information from seven 
of nine select state UST programs to identify the extent of the 
state's release detection requirements and compare those 
requirements to the release detection requirements in EPA's proposed 
2011 UST regulation.
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Feasibility of Proposed Release Detection Options for Piping
    In order to allow owners and operators flexibility to meet the 
release detection requirement, EPA proposed these four alternatives for 
underground piping associated with airport hydrant systems and field-
constructed tanks greater than 50,000 gallons:

 Pressure based line testing methods
 Continuous interstitial monitoring
 Automatic line leak detector combined with interstitial 
monitoring and
 Other methods approved by implementing agencies

    EPA requested comment or additional data on the proposed release 
detection requirements to determine their feasibility. Several 
commenters said the options in the 2011 proposed UST regulation were 
insufficient and requested EPA provide options that offered owners and 
operators more choices. A4A provided EPA with the names of nine 
commercial airports that could be affected by the final UST regulation 
and the feasibility of applying the release detection methods discussed 
in the 2011 proposed UST regulation to these airports. This information 
helped EPA further refine this final airport hydrant system 
requirements, including release detection.
    A4A stated that the only feasible choice EPA provided was pressure 
based methods and substantial retrofits would be required to meet the 
requirements at Chicago O'Hare International Airport (ORD), John F. 
Kennedy International Airport (JFK), and possibly other airports. 
However, EPA through our analysis and in depth discussions with those 
airports, thinks the airport hydrant system at JFK, as currently 
configured, may not meet the definition of an UST in this final UST 
regulation; this means the requirements would not apply. In addition, 
if planned capital upgrades are completed on one of ORD's airport 
hydrant systems, that system may not meet the definition of an UST and 
would not be subject to this final UST regulation. If configurations 
for either of these airport hydrant systems change in the future, the 
owner and operator must re-evaluate the system to determine if it meets 
the definition of UST in this final UST regulation. Owners and 
operators are responsible for determining whether their airport hydrant 
systems meet the definition of an UST and, if necessary, comply with 
this final UST regulation.
    As a result of comments and while developing the final UST 
regulation, EPA met with DoD, A4A, personnel

[[Page 41593]]

representing potentially impacted commercial airports, and release 
detection vendors to develop release detection methods for the final 
UST regulation and determine how or if commercial airports and DoD 
facilities could achieve compliance within the specified time 
frames.70 71 72 73 74 From those discussions, EPA found that 
most, if not all, of the potentially affected commercial airports have 
or will have mechanisms in place to achieve compliance with the release 
detection requirements in this final UST regulation. In addition, 
owners and operators already implement release detection according to 
technical requirements in states where airport hydrant systems are not 
deferred. EPA found that many of these airport hydrant systems perform 
a type of inventory management and hydrostatic testing of the piping 
system to detect pressure changes in the UST system. EPA determined 
that although the 1988 UST regulation did not require airport hydrant 
system owners and operators perform these tests, both DoD facilities 
and commercial airports have already been performing various fuel 
management methods to monitor and track fuel inventories.
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    \70\ January 28, 2012 and March 29, 2012 meetings with 
representatives from Airlines for America.
    \71\ February 28, 2013 and March 18, 2013 meetings with DoD's 
Defense Logistics Agency Energy.
    \72\ June 20, 2012 and May 19, 2013 meeting with Hansa Consult 
of North America, LLC.
    \73\ June 20, 2012 meeting with VISTA Precision Solutions.
    \74\ August 15, 2012 meeting with Ken Wilcox and Associates.
---------------------------------------------------------------------------

Release Detection Options for Piping in the Final UST Regulation
    Based on comments, EPA is providing flexibility for owners and 
operators of piping associated with airport hydrant systems and field-
constructed tanks greater than 50,000 gallons to meet the release 
detection requirements. This final UST regulation modifies the piping 
release detection options in the 2011 proposed UST regulation and 
incorporates some of the methods currently used at commercial airports 
and DoD facilities. Owners and operators of these systems may use 
existing piping release detection options provided in subpart D (except 
for passive groundwater and vapor monitoring, which must be combined 
with inventory control as described below), or they may use alternative 
piping release detection methods in Sec.  280.252(d)(2). EPA thinks 
these options are reasonable and represent an appropriate balance of 
practicality and protectiveness. Piping associated with field-
constructed tanks 50,000 gallons or less in capacity must use the 
release detection options listed in subpart D.
Pressure Based Testing
    The final UST regulation allows owners and operators to perform 
pressure based testing methods according to performance criteria 
dependent on volume of the line segment tested. These criteria provide 
specific performance thresholds for both semiannual and annual testing. 
Owners and operators may perform semiannual or annual line testing at 
or above operating pressure with a probability of detection of 0.95 and 
a probability of false alarm of 0.05. This method allows owners and 
operators to meet a variable leak rate based on piping test section 
volume. The leak rate ranges from 1 to 3 gallons per hour, depending on 
piping volume for semiannual testing and from 0.5 to 1.5 gallons per 
hour for annual testing. The final UST regulation establishes 3 gallons 
per hour as the maximum threshold because the majority of available 
testing methods are capable of meeting this leak rate.
    For the first six years (or two test periods), piping segments that 
cannot meet a 3 gallons per hour threshold are allowed to meet a higher 
threshold of up to 6 gallons per hour. Available methods are capable of 
testing segments to a leak rate of 6 gallons per hour. The higher 
threshold 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 gallons per hour 
threshold for semiannual testing. Between years six and seven, owners 
and operators must conduct one additional tightness test that, at a 
minimum, meets the semiannual testing threshold. In the seventh year, 
owners and operators must begin meeting the semiannual or annual line 
tightness testing requirements according to the requirements in Sec.  
280.252(d)(2)(i). EPA is providing a three year phase-in period for the 
remaining release detection options, because these methods will not 
require significant construction or upgrades for implementation.
    EPA asked commenters whether other release detection options should 
be considered for underground piping associated with airport hydrant 
systems and field-constructed tanks greater than 50,000 gallons. Based 
on comments, EPA is adding inventory control, groundwater and vapor 
monitoring, and other methods for piping as release detection options 
in this final UST regulation.
Inventory Control
    EPA reviewed performance standards for daily inventory control 
procedures used by DoD and the commercial airports identified by 
A4A.75 76 Based on performance standards for daily inventory 
control procedures performed by both DoD and A4A, EPA is allowing 
inventory control as part of a combination method of release detection. 
EPA chose 0.5 percent of flow through as the performance standard for 
inventory control because this value represents the maximum tolerance 
allowed under the performance standard for products typically stored or 
handled by airport hydrant systems. Owners and operators may conduct 
inventory control according to DoD Directive 4140.25, ATA's Airport 
Fuel Facility Operations and Maintenance Guidance Manual, or equivalent 
procedures. EPA is allowing this method in combination with either a 
pressure based line tightness test using the leak rates from the 
semiannual test in Sec.  280.252(d)(2)(i) at least once every two 
years, or passive groundwater or vapor monitoring once every 30 days as 
described below.
---------------------------------------------------------------------------

    \75\ DoD's Bulk Petroleum Management Policy--DoD 4140.25-M, 
Volume II--Petroleum Management, Chapter 10--Accountability (June 
22, 1994) is accessible on line at: http://www.dtic.mil/whs/directives/corres/pdf/414025-m-vol2-chapter10.pdf. This standard 
recognizes that petroleum products are subject to losses and gains. 
The tolerance factor that represents the amount of fuel which might 
be lost or gained under normal conditions varies by product and 
status of fuel (i.e., storage or in transit). These values in the 
policy represent standard tolerances (i.e., system flow-through) for 
various products in transit and storage: (1) Aviation and motor gas 
= 0.5 percent and 0.5 percent; (2) JP4 = 0.5 percent and 0.3 
percent; (3) Jet Fuel, Distillates, Residuals = 0.5 percent and 0.25 
percent; and (4) JP5, JP8, DF2, F76, etc. = varies by individual 
agreements with airports and 0.5 percent.
    \76\ EPA reviewed Airlines For America Guidance--ATA Airport 
Fuel Facility Operation and Maintenance Guidance Manual, Revision 
2004.1; and ATA Spec 123: Procedures for the Accounting of Jet Fuel 
Inventory 2011.2. The two documents provide guidance for operators 
to investigate, report, or explain any variances exceeding 0.1 percent.
---------------------------------------------------------------------------

Groundwater and Vapor Monitoring
    EPA proposed to phase out groundwater and vapor monitoring as 
release detection methods in the 2011 proposed UST regulation. However, 
this final UST regulation retains these methods with modifications. See 
section D-6 for more information. These methods are also allowed with 
some modifications in subpart K. EPA divided vapor monitoring into two 
categories: Active monitoring for chemical markers or tracers and 
passive monitoring for stored product in the tank system. Owners and 
operators of these systems

[[Page 41594]]

may use active vapor monitoring methods characterized by testing or 
monitoring of chemical markers or a tracer compound placed in the tank 
system, according to Sec.  280.43(e) to detect a release of at least 
0.1 gallon per hour with probabilities of detection and false alarm of 
0.95 and 0.05, respectively. Owners and operators choosing this option 
must conduct this test at least once every two years. This method may 
be used as a stand-alone method of release detection.
    Owners and operators may also combine passive vapor or groundwater 
monitoring with inventory control, described above, that can detect a 
release of at least 0.5 percent of flow through at least every 30 days. 
Passive vapor monitoring or groundwater monitoring must be conducted at 
least every 30 days according to Sec.  280.43(e) or (f), respectively.
Other Methods for Piping
    The final UST regulation maintains the option for owners and 
operators to use alternative methods of release detection for piping 
approved by the implementing agency, as discussed in the 2011 proposed 
UST regulation. This provides flexibility for owners and operators to 
comply by using methods or a combination of methods equivalent to the 
requirements in Sec.  280.252(d)(2). EPA recognized that other methods 
not included in Sec.  280.252(d)(2) could be acceptable, as long as 
they are as effective and are approved by implementing agencies. The 
performance criteria for piping release detection methods in Sec.  
280.252(d)(2) provide owners and operators with information about how 
to demonstrate the effectiveness of release detection methods that must 
be approved by the implementing agency.
Proposed Release Detection Options for Piping Not Included in the Final 
UST Regulation
    Because piping segments associated with airport hydrant systems and 
field-constructed tanks can contain large volumes of regulated 
substances, EPA asked commenters if it was feasible to require ALLDs to 
detect a leak at 3 gallons per hour at 10 pounds per square inch line 
pressure within one hour or equivalent. EPA anticipated receiving 
information on the appropriate leak rate for ALLDs on this piping. EPA 
did not receive any indication that current performance standards of 
ALLDs could be modified for these systems. Although some portions of 
existing systems may be able to use this option, EPA agrees it is not 
feasible to use an ALLD with interstitial monitoring on piping 
associated with airport hydrant systems and field-constructed tanks.
    This final UST regulation modifies the 2011 proposed UST 
regulation; owners and operators of airport hydrant systems or piping 
associated with field-constructed tanks greater than 50,000 gallons are 
not provided specific requirements in this final UST regulation for 
using continuous interstitial monitoring and the combination of 
automatic line leak detectors with interstitial monitoring for piping. 
Many of these systems lack secondary containment and automatic line 
leak detectors cannot adapt to the operating pressures of these 
systems. In the 2011 proposed UST regulation, EPA asked if testing the 
piping for airport hydrant systems and field-constructed tanks at 
operating pressure was sufficient. The 1988 UST regulation requires 
owners and operators test conventional systems at one and a half times 
operating pressure. EPA is aware that airport hydrant system piping 
operates at high pressures and agrees with commenters who stated that 
testing above operating pressure might be infeasible. This final UST 
regulation requires owners and operators to test these systems at least 
at operating pressure, because these large piping systems operate at 
pressures much higher than conventional gasoline stations. However, EPA 
is allowing testing at or above operating pressure, but is not 
providing a set value. Professional testers can decide the appropriate 
pressure to test these systems, as long as the pressure is at least the 
operating pressure of the system.
Release Detection Requirements for Tanks Associated With Airport 
Hydrant Systems and Field-Constructed Tanks
    This final UST regulation establishes release detection 
requirements for tanks associated with airport hydrant systems and 
field-constructed tanks. Airport hydrant systems may consist of a 
series of large capacity shop fabricated tanks, although some airport 
hydrant systems use field-constructed tanks. Shop fabricated tanks and 
field-constructed tanks with a capacity less than or equal to 50,000 
gallons must meet the requirements in subpart D. Field-constructed 
tanks with capacity greater than 50,000 gallons must either be 
monitored using release detection methods in subpart D (except for 
passive groundwater and vapor monitoring which must be combined with 
inventory control as described below) or use one of the alternative 
methods for tanks listed at Sec.  280.252(d)(1).
Feasibility of Proposed Release Detection Options for Field-Constructed 
Tanks
    To allow owners and operators more flexibility in meeting the 
release detection requirement, EPA proposed these four alternatives for 
UST systems with field-constructed tanks greater than 50,000 gallons:
     Annual tank tightness test
     Automatic tank gauging system that can detect a 1 gph leak 
combined with a tank tightness test every three years
     Automatic tank gauging system that can detect a 2 gph leak 
combined with a tank tightness test every two years and
     Other methods approved by the implementing agency
    EPA requested comment or additional data on the proposed release 
detection options to determine their feasibility. Most commenters 
thought the release detection options were appropriate and sufficient. 
One commenter thought EPA should include chemical marker or tracer 
testing. Another commenter thought EPA should expand the types of 
release detection methods specified in the final UST regulation to 
include use of sensors, probes, monthly visual inspections, or other 
methods approved by the implementing agency.
    EPA met with and obtained information from DoD and release 
detection vendors throughout the regulatory process. EPA researched 
suggested release detection options and standard practices conducted by 
DoD following the public comment period for the 2011 proposed UST 
regulation. EPA found that these facilities perform inventory 
management on their UST systems. EPA determined that although not 
performed as specified in the 1988 UST regulation, some DoD facilities 
are performing fuel management methods to monitor and track fuel 
inventories for their field-constructed tanks.77 78
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    \77\ Final Report--Validation of the Low-Range Differential 
Pressure (LRDP) Leak Detection System for Small Leaks in Bulk Fuel 
Tanks Environmental Security Technology Certification Program, U.S. 
Department of Defense.
    \78\ DoD 4140.25-M: Management of Bulk Petroleum Products, 
Storage, and Distribution Facilities, Volume V http://www.dtic.mil/whs/directives/corres/html/414025m_vol1_3.html.
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Release Detection Options for Field-Constructed Tanks in the Final UST 
Regulation
    Based on comments and additional information from DoD as well as 
commercial airports about their operations, EPA is including in this 
final UST regulation all release

[[Page 41595]]

detection options discussed in the 2011 proposed UST regulation. EPA is 
also adding three other options to this final UST regulation. Owners 
and operators of field-constructed tanks less than or equal to 50,000 
gallons must meet the release detection requirements in subpart D. 
Owners and operators of field-constructed tanks greater than 50,000 
gallons must use the alternative release detection methods described in 
subpart K or the release detection options in subpart D (except that 
groundwater and vapor monitoring must be used in combination with 
inventory control as described below). EPA thinks these options are 
reasonable and will quickly detect releases when they occur.
Tank Tightness Testing
    In the 2011 proposed UST regulation, EPA discussed the option of 
owners and operators performing annual tank tightness testing that can 
detect a 0.5 gallon per hour leak rate. EPA proposed this performance 
standard based on information about leaks from several field-
constructed tanks. The information indicated leak rates from the tanks 
ranged from 0.31 gph to 10 gph, with a median leak rate of 0.58 gph. 
EPA determined that most available methods were capable of meeting the 
proposed leak rate of 0.5 gph. EPA did not receive comments regarding 
the performance standard during the public comment period. The final 
UST regulation retains the option for owners and operators to perform 
annual underground tank tightness testing that can detect a 0.5 gallon 
per hour leak rate.
Automatic Tank Gauging Combinations with Tank Tightness Testing
    This final UST regulation allows owners and operators to combine an 
automatic tank gauging system with a tank tightness test that achieves 
different leak rates during different periods of performance. One 
combination uses an automatic tank gauging system performing release 
detection at least every 30 days that can detect a leak rate less than 
or equal to 1 gallon per hour with a tank tightness test that can 
detect a 0.2 gallon per hour leak rate performed at least every three 
years. Another combination couples an automatic tank gauging system 
performing release detection at least every 30 days that can detect a 
leak rate less than or equal to 2 gallons per hour with a tank 
tightness test that can detect a 0.2 gallon per hour leak rate 
performed at least every two years. This automatic tank gauging 
requirement is different from the release detection requirement in the 
1988 UST regulation for factory built tanks. These leak 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.
Inventory Control
    This final UST regulation allows inventory control combined with 
one of these methods: passive groundwater monitoring every 30 days, 
passive vapor monitoring every 30 days, or a 0.5 gallon per hour tank 
tightness test performed at least once every two years. The inventory 
control option must meet the same requirements as inventory control for 
piping associated with airport hydrant systems and field-constructed 
tanks described in the Release Detection Options for Piping in the 
Final UST Regulation section above.
Groundwater and Vapor Monitoring
    This final UST regulation allows active vapor monitoring for tanks 
using the same requirements as described in the Release Detection 
Options for Piping in the Final UST Regulation section above. In 
addition, owners and operators may also use a combination method 
incorporating inventory control and passive vapor monitoring or 
groundwater monitoring using the requirements described in the Release 
Detection Options for Piping in the Final UST Regulation section above.
Other Methods for Field-Constructed Tanks
    Implementing agencies may approve another method if the owner and 
operator demonstrate the method can detect a release as effectively as 
any of the other five methods described in the Release Detection 
Options for Field-Constructed Tanks section. In comparing methods, an 
implementing agency shall consider the size of release the method can 
detect and frequency and reliability of detection. Other methods are 
described in Other Methods for Piping.
Release Detection Recordkeeping
    This final UST regulation requires owners and operators maintain 
records of release detection for field-constructed tanks and airport 
hydrant systems in accordance with Sec.  280.45. The results of any 
sampling, testing, or monitoring must be maintained for at least one 
year except as follows: Tank tightness testing; line tightness testing; 
and vapor monitoring using a tracer compound placed in the tank system 
must retain records until the next test is conducted. EPA is requiring 
owners and operators maintain these records until the next test is 
conducted because owners and operators can choose different time frames 
to conduct release detection testing. This additional flexibility 
results in some testing occurring at frequencies ranging from less than 
one year to up to three years.
Release Prevention
    As with all other regulated UST systems, this final UST regulation 
requires airport hydrant systems and field-constructed tanks meet 
corrosion protection, spill, and overfill requirements, as well as 
walkthrough inspections.
Corrosion Protection
    This final UST regulation requires all airport hydrant systems and 
field-constructed tanks that routinely contain regulated substances and 
are in contact with the ground to meet corrosion protection 
requirements in Sec.  280.252(b)(1). Metal tanks and piping which are 
encased or surrounded by concrete have no metal in contact with the 
ground and are not subject to the corrosion protection requirements. 
Because interim prohibition for deferred UST systems in the 1988 UST 
regulation has been in effect since May 1985, many of these systems are 
already equipped with corrosion protection (that is, constructed of: 
Non-corrodible material, coated and cathodically protected steel, 
fiberglass reinforced plastic, or steel tank clad with fiberglass 
reinforced plastic). In this final UST regulation, EPA renames Sec.  
280.11 to Installation requirements for partially excluded UST systems. 
For corrosion protection, airport hydrant systems and field-constructed 
tanks must meet the requirements in Sec.  280.252(b)(1). Owners and 
operators must meet this requirement within three years of the 
effective date of this final UST regulation.
    This final UST regulation does not allow an internal lining as a 
method for meeting the corrosion protection upgrade requirement. EPA is 
not allowing an internal lining as corrosion protection because it does 
not protect steel in contact with the ground from corroding and causing 
a release to the environment. Field-constructed tanks and tanks 
associated with airport hydrant systems, which are not upgraded 
according to Sec.  280.252(b), and are installed on or before the 
effective date of this final UST regulation must be permanently closed 
according to Sec.  280.70.
Spill and Overfill Prevention
    EPA concludes that using properly functioning equipment, which is

[[Page 41596]]

operated according to manufacturer guidelines, is necessary to protect 
human health and the environment. After discussions with industry, DoD, 
and commercial airport personnel, EPA understands that existing airport 
hydrant systems are generally already equipped with spill and overfill 
prevention equipment to prevent spills and overfills. This final UST 
regulation requires owners and operators of airport hydrant systems and 
field-constructed tanks to have spill and overfill prevention equipment 
and conduct testing or inspections of the equipment. This will ensure 
the systems and tanks operate properly, contain releases, and decrease 
the likelihood of a leak into the environment. Owners and operators 
must install spill and overfill prevention equipment and conduct the 
first test or inspection within three years of the effective date of 
this final UST regulation, then at least once every three years 
thereafter. For more information on spill prevention equipment testing 
and overfill prevention equipment inspections, see sections B-2 and B-
3, respectively.
Walkthrough Inspections
    Owners and operators need to properly operate and maintain their 
UST system equipment in order to prevent and quickly detect releases. 
Therefore, this final UST regulation adds requirements for owners and 
operators of airport hydrant systems and field-constructed tanks to 
perform periodic walkthrough inspections to prevent and quickly detect 
releases.
    EPA found that owners and operators of airport hydrant systems are 
required to ensure safety and fuel quality, and frequently inspect 
these systems as part of other requirements and recommendations to 
ensure system components are operating properly. In addition, EPA 
understands that airport hydrant systems and some field-constructed 
tank facilities are already performing operation and maintenance 
inspections that ensure their systems and associated spill and overfill 
equipment are operating properly. Thus, EPA found these requirements 
will impose little, if any, additional burden at these facilities. This 
final UST regulation requires owners and operators of airport hydrant 
systems and field-constructed tanks conduct walkthrough inspections 
according to Sec.  280.36. In addition, EPA is requiring owners and 
operators inspect hydrant pits and hydrant piping vaults. These areas 
are unique to airport hydrant systems. It is important to look at 
hydrant pits and hydrant piping vaults as part of periodic walkthrough 
inspections to ensure these areas are: Free of liquid and debris, not 
damaged, and free of leaks. Owners and operators must inspect these 
areas at least once every 30 days if OSHA confined space entry is not 
required or at least annually if OSHA confined space entry is required. 
See 29 CFR part 1910 for information about OSHA confined space entry. 
Some owners and operators already periodically check these areas using 
the ATA guidance manual, Airport Fuel Facility Operations and 
Maintenance Guidance Manual. Owners and operators must conduct the 
first inspection within three years of the effective date of the final 
UST regulation. For more information on walkthrough inspections, see 
section B-1.
Secondary Containment
    This final UST regulation does not require secondary containment 
for new and replaced piping associated with field-constructed tanks 
greater than 50,000 gallons in capacity or piping associated with 
airport hydrant systems. EPA understands this piping typically is 
larger diameter and runs for long distances, making it difficult to 
slope the piping to an interstitial monitoring area. In addition, EPA 
understands it is difficult to keep water out of the interstitial area 
of 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 operational life. Corrosion protection on the outside of 
the piping protects the part of the piping in contact with the ground 
from corrosion, 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 to do. Given these issues, EPA has determined that requiring 
secondary containment for these piping runs is not practical.
    However, EPA is requiring secondary containment for new and 
replaced piping associated with field-constructed tanks 50,000 gallons 
or less that do not feed airport hydrant system piping. EPA understands 
that new, smaller field-constructed tanks, such as those constructed 
within tanks following permanent closure of an existing UST, typically 
have piping similar to that installed at commercial gasoline stations. 
This piping can effectively meet the secondary containment requirements 
and better protect the environment. For more information, see section 
A-2, Secondary Containment.
Notification
    The 1988 UST regulation did not require owners of airport hydrant 
systems or field-constructed tanks to comply with the notification 
requirements of Sec.  280.22, which included certifying proper 
installation of airport hydrant systems. The 2011 proposed UST 
regulation required owners and operators of airport hydrant systems and 
field-constructed tanks installed prior to the effective date of the 
final UST regulation provide notification of existence to implementing 
agencies within 30 days of the effective date of this final UST 
regulation. This final UST regulation modifies the 2011 proposed UST 
regulation by requiring owners and operators provide a one-time 
notification of existence to implementing agencies no later than 3 
years after the effective date of this final UST regulation. EPA agrees 
with commenters that airport hydrant system owners and operators need 
more than 30 days to provide the one-time notification of existence. 
This change allows owners and operators, as well as implementing 
agencies, time to identify airport hydrant systems covered by the final 
UST regulation and gives implementing agencies time to include these 
systems in their inventories. The final UST regulation does not 
consider currently installed tanks, including airport hydrant systems, 
as new UST systems. Therefore, EPA is requiring owners and operators 
only certify proper installation for airport hydrant systems and field-
constructed tanks installed on or after the effective date of the final 
UST regulation according to Sec.  280.22. In addition, EPA is requiring 
owners notify within 30 days of ownership change. See section D-3 for 
more information on notification requirements.
Financial Responsibility
    Because EPA is eliminating the deferral for airport hydrant systems 
and field-constructed tanks, they are no longer be excluded from the 
financial responsibility requirements in subpart H. Owners and 
operators who install these UST systems after the effective date of 
this final UST regulation must comply with the financial responsibility 
requirements at installation. Owners and operators of airport hydrant 
systems and field-constructed tanks in use as of the effective date of 
this final UST regulation must have financial responsibility when they 
submit the one-time notification of existence for

[[Page 41597]]

these systems. However, subpart H exempts federal and state entities, 
which means that federal and state owners and operators of airport 
hydrant systems and field-constructed tanks do not have to meet the 
financial responsibility requirement.
Operator Training
    EPA is aware that commercial airports are required to follow fuel 
facility training requirements of 14 CFR part 139; however, those 
requirements do not cover specifics of the UST requirements. This final 
UST regulation requires owners and operators of airport hydrant systems 
and field-constructed tanks meet the operator training requirements of 
subpart J. Owners and operators of some airport hydrant systems that 
are considered underground storage tanks may have already complied with 
state operator training requirements. For example, personnel from 
General Mitchell Field in Wisconsin report that operators have received 
Wisconsin class A and B operator training certification. All owners and 
operators must begin meeting this requirement not later than three 
years after the effective date of this final UST regulation. For more 
information see section A-1, Operator Training.
Partially Excluded Components
    EPA regulates UST systems, including tanks and underground piping, 
in 40 CFR part 280 and aboveground tanks in 40 CFR part 112 (Oil 
Pollution Prevention). Facilities with greater than 1,320 gallons of 
aboveground oil storage capacity that could reasonably be expected to 
discharge oil into navigable waters or adjoining shorelines are subject 
to the SPCC regulation under the authority of the Clean Water Act.\79\ 
The SPCC regulation includes requirements for oil spill prevention, 
preparedness, and response to prevent oil discharges into navigable 
waters and adjoining shorelines. The SPCC regulation also requires 
regular inspections of aboveground valves, piping, and appurtenances 
along with integrity and leak testing of buried piping at the time of 
installation, modification, construction, relocation, or replacement. 
Facilities regulated by the SPCC regulation must also prepare and 
maintain a written SPCC plan that includes measures to prevent, prepare 
for, and respond to oil discharges that threaten navigable waters or 
adjoining shorelines.
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    \79\ http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=b843807afdc641b203ffec44aa671d36&rgn=div5&view=text&node=40:23.0.1.1.7&idno=40.
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    Aboveground storage tanks associated with airport hydrant systems 
and field-constructed tanks covered in this final UST regulation do not 
have to meet many of the requirements in the UST regulation because 
they are neither beneath the surface of the ground, nor in contact with 
the ground. For these reasons, the SPCC regulation is the most 
effective means of addressing the aboveground storage tanks associated 
with UST systems. Airport hydrant systems that do not meet the 
definition of UST system because the underground portion is less than 
10 percent of the system capacity may be subject to the SPCC regulation 
for both the aboveground and underground portions of the system. 
Underground storage tank components such as hydrant pits and piping 
vaults are considered part of the UST system and subject to the 
requirements in 40 CFR part 280.
Complementary Regulation of Partially Buried Tanks
    Partially buried (also called partially covered) field-constructed 
tanks may be regulated by both this final UST regulation and the SPCC 
regulation. The SPCC regulation exempts only completely buried storage 
tanks subject to all of 40 CFR part 280.\80\ Additionally, the SPCC 
regulation covers tanks situated on top of the ground's surface or 
partially buried (for example, bunkered, also referred to as mounded 
tanks) and considers these to be aboveground storage tanks. If 10 
percent or more of the total capacity of the tank or tanks and 
underground piping is underground, the tank system meets the definition 
of an UST regulated by 40 CFR part 280 or state equivalent program 
approved under 40 CFR part 281. Therefore, these containers or systems 
are covered by both SPCC and UST regulations. These regulations are 
complementary because the SPCC regulation focuses on oil discharges 
that could impact navigable waters or shorelines, while the UST 
regulation focuses primarily on day-to-day maintenance and operation to 
prevent releases that impact soil and groundwater.
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    \80\ 40 CFR 112.2 defines completely buried as any container 
completely below grade and covered with earth, sand, gravel, 
asphalt, or other material. Containers in vaults, bunkered tanks, or 
partially buried tanks are considered aboveground storage containers 
for purposes of the part.
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Change from Deferred to Partially Excluded
    The 2011 proposed UST regulation used the term deferred for 
aboveground storage tanks associated with airport hydrant systems and 
field-constructed tanks considered to be UST systems. The proposal 
indicated that although these aboveground storage tanks would be 
subject to some parts of the final UST regulation, EPA intended to 
continue evaluating whether to fully regulate them in the future. EPA 
reconsidered these aboveground storage tanks and is making the final 
determination that the SPCC requirements are the most effective means 
for addressing oil discharges from aboveground storage tanks. This 
final UST regulation excludes from subparts B, C, D, E, G, J, and K 
aboveground storage tanks associated with airport hydrant systems and 
field-constructed tanks. Aboveground storage tanks that are part of an 
UST system must continue to meet the requirements of subparts A and F.
3. Wastewater Treatment Tank Systems that Are Not Part of a Wastewater 
Treatment Facility Regulated Under Sections 402 or 307(b) of the Clean 
Water Act
    In the 2011 proposed UST regulation, EPA removed the existing 
deferral in Sec.  280.10(c)(1) for wastewater treatment tank systems 
that are not part of a wastewater treatment facility regulated under 
sections 402 or 307(b) of the Clean Water Act. Since the 1988 UST 
regulation, owners and operators of these systems (hereafter referred 
to as wastewater treatment tanks) were deferred from complying with 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). Owners and operators have been required to 
comply with requirements for interim prohibition and release response 
and corrective action (40 CFR part 280, subparts A and F) since the 
effective date of the 1988 UST regulation. However, removing the 
deferral, as discussed in the 2011 proposed UST regulation, would have 
required owners and operators comply with all subparts of 40 CFR part 
280.
Change from Deferred to Partially Excluded
    The 1988 UST regulation used the term deferred for wastewater 
treatment tanks. Although these tanks were subject to some parts of the 
UST regulation, EPA intended to continue evaluating whether or not to 
regulate these tanks at a future date. EPA reconsidered these tanks and 
is making a final determination. EPA is excluding

[[Page 41598]]

these tanks from most requirements in this final UST regulation; 
however, the regulatory requirements in subparts A and F for these 
systems remain the same.
    EPA deferred wastewater treatment tanks in the 1988 UST regulation 
due to uncertainty about the number of tanks that existed and the 
appropriateness of release detection for these systems. EPA's intent in 
removing the deferral for these tanks in the 2011 proposed UST 
regulation was to regulate them further, which would protect human 
health and the environment from discharges of regulated substances 
contained in these systems. EPA used the proposal to obtain additional 
information on these systems, and determine if there were appropriate 
release prevention and detection technologies available to fully 
regulate them according to the UST regulation. According to commenter 
responses, EPA determined that these tanks are often subject to other 
environmental regulations; it may not be technically feasible to 
install release prevention and detection equipment on these systems due 
to varying designs of these systems; and many of these systems contain 
mostly water and are not significant sources of contamination.
Installation Requirements for Partially Excluded Tanks
    In the 1988 UST regulation, deferred wastewater treatment tanks 
were required to meet the interim prohibition requirements at Sec.  
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, these tanks are already equipped with corrosion protection 
if they were installed after the effective date of the 1988 UST 
regulation. EPA thinks it is appropriate to maintain this requirement, 
which ensures these tanks are provided with some degree of corrosion 
protection to prevent releases into the environment. Because EPA is 
partially excluding these systems, the term interim prohibition no 
longer applies. Therefore, EPA is rewording the title of Sec.  280.11 
to Installation requirements for partially excluded UST systems. In 
addition, EPA is changing Sec.  280.11(a) to reflect that these 
requirements are installation requirements rather than prohibitions on 
installation.
    Many commenters did not support removing the deferral to regulate 
these UST systems and were unsure of the universe of wastewater 
treatment tanks. To address this concern, EPA developed a February 2012 
document describing wastewater treatment tanks that would have been 
regulated under the final UST regulation.\81\ Several commenters also 
voiced concern that regulating these systems may result in unintended 
consequences (for example, impracticability of technical requirements 
and dual regulation) for owners and operators and implementing 
agencies. To help determine the feasibility of the 2011 proposed UST 
regulation, EPA asked several stakeholders about operating various 
types of wastewater treatment tanks.82 83 84 EPA also 
gathered information from commenters about implementing other 
regulations that apply to these systems.85 86 87 88 After 
considering commenters' feedback, EPA concluded that the historic level 
of regulation for these tanks is appropriate and provides adequate 
controls to ensure environmental protection.
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    \81\ http://www.epa.gov/oust/fedlaws/wwtts_2-29-12_final.pdf.
    \82\ April 2012 telephone conversation with Tom Groves, New 
England Interstate Water Pollution Control Commission.
    \83\ April 2012 telephone conversation with Ming Pan, 
Massachusetts Department of Environmental Protection.
    \84\ April 2012 telephone conversation with Joe Cerutti, 
Massachusetts Department of Environmental Protection.
    \85\ March 2012 telephone conversation with Kevin Brackney, Nez 
Perce Tribe.
    \86\ April 2012 telephone conversation with Chris Wiesberg, 
Missouri Department of Natural Resources.
    \87\ April 2012 telephone conversation with Mary Hansen, 
Washington State Department of Ecology.
    \88\ May 2012 telephone conversation with Candace Cady, Utah 
Department of Environmental Quality.
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    This final UST regulation excludes owners and operators of 
wastewater treatment tanks from 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); H (Financial Responsibility); J (Operator 
Training); and K (UST Systems with Field-Constructed Tanks and Airport 
Hydrant Fuel Distribution Systems). EPA is basing this decision on 
maintaining the installation requirement (Sec.  280.11), other 
regulatory controls in place, and the additional information gathered. 
Owners and operators of wastewater treatment tank systems are still 
required to comply with subparts A (Program Scope and Installation 
Requirements for Partially Excluded UST Systems); and F (Release 
Response and Corrective Action for UST Systems Containing Petroleum or 
Hazardous Substances).
4. USTs Containing Radioactive Material and Emergency Generator UST 
Systems at Nuclear Power Generation Facilities Regulated by the Nuclear 
Regulatory Commission
    In the 2011 proposed UST regulation, EPA maintained the existing 
deferral in Sec.  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 United States Nuclear Regulatory 
Commission (NRC). Since the 1988 UST regulation, owners and operators 
of these tanks were deferred from complying with 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). Owners and operators have been required to comply with 
requirements for interim prohibition and release response and 
corrective action (40 CFR part 280, subparts A and F) since the 
effective date of the 1988 UST regulation.
    After review of DOE Orders and NRC regulations,\89\ EPA determined 
these requirements are comparable to EPA requirements for new and 
existing USTs regarding spill and overfill control (Sec.  280.30); 
operation and maintenance of corrosion protection (Sec.  280.31); and 
release detection (40 CFR part 280, subpart D). DOE established 
standards for facility operations that: protect the public and 
environment from exposure to radiation from radioactive

[[Page 41599]]

materials; 90 91 92 protect workers; \93\ provide industrial 
safety; \94\ and ensure compliance with applicable federal, state, and 
local laws, as well as Executive Orders and other DOE directives. DOE 
uses orders to regulate radioactive materials at their facilities.
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    \89\ Contract No. GS-10F-0309N, EPA Work Order No. EP-G10S-
00001, Work Order No. 1004, Task 2, Subtask c, Quick Turnaround 
Request No. 6, Release Response and Corrective Action.
    \90\ DOE Order 435.1 Chg 1, Radioactive Waste Management, 
ensures management of DOE radioactive waste (i.e. high-level, 
transuranic, low-level, and the radioactive component of mixed 
waste) is consistent with Atomic Energy Act of 1954 
responsibilities, in a manner that provides radiological protection 
from DOE operations. (see https://www.directives.doe.gov/directives-documents/400-series/0435.1-BOrder-chg1.)
    \91\ DOE M 435.1-1 Admin Chg 2, Radioactive Waste Management 
Manual, further describes the requirements and establishes specific 
responsibilities for implementing DOE O 435.1, Radioactive Waste 
Management. It prescribes the following requirements and specific 
responsibilities for new or modified existing systems: Secondary 
containment designed to detect and contain releases, and compatible 
with material stored (Chapter II P(2)(b)); spill/overfill control 
(Chapter II(P)(2)(i)); release detection for tanks (Chapter 
II(Q)(2)(a)(1)), and other storage components (Chapter II(Q)(2)(c)); 
release detection for failed containment and/or other abnormal 
conditions (Chapter II(P)(2)(j)); monitoring and/or leak detection 
for secondary containment (Chapter IIP(2)(j)); corrosion protection 
(Chapter II(Q)(2)(a)(2),(3)); monitoring and physical inspections 
(Chapter II(T)) and corrective action (Chapter I(2)(F)(20)). (see 
https://www.directives.doe.gov/directives-documents/400-series/0435.1-DManual-1-admchg2.)
    \92\ DOE O 458.1 Admin Chg 3, Radiation Protection of the Public 
and the Environment (see https://www.directives.doe.gov/directives-documents/400-series/0458.1-BOrder-AdmChg3).
    \93\ 10 CFR part 835, Occupational Radiation Protection (see 
http://www.ecfr.gov/cgi-bin/text-idx?SID=dc937acd7069e30635139ca1ee3a44a0&node=pt10.4.835&rgn=div5).
    \94\ DOE O 440.1B Admin Chg 1, Worker Protection Program for DOE 
(Including the National Nuclear Security Administration) Federal 
Employees (see https://www.directives.doe.gov/directives-documents/400-series/0440.1-BOrder-b-admchg1).
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    NRC regulations at 10 CFR part 50 require that construction permit 
applications include a design and safety analysis, health and safety 
risk assessment of facility operations, and determination of the 
adequacy of controls for accidental releases into the environment for 
the life of the operating unit. NRC regulations also require facilities 
meet minimum design, installation, testing, and performance 
criteria.\95\ Appendix B of 10 CFR part 50 requires a quality assurance 
report that includes testing of facility structures, systems, and 
components.\96\ NRC also developed guidance documents to assist 
operators with licensing compliance.\97\
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    \95\ see http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/radwaste.html.
    \96\ Ibid.
    \97\ Ibid.
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    EPA was concerned with whether NRC and DOE cleanup standards for 
radionuclides adequately protect groundwater 98 99 100 and 
was unfamiliar with how NRC regulates releases of petroleum products or 
enforces cleanup of releases.
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    \98\ February 1997 letter from EPA to the NRC expressing 
concerns over the NRC's proposal for increasing dose limits and 
eliminating the requirement to protect groundwater that could be 
used as drinking water.
    \99\ December 1997 letter from EPA to DOE expressing concerns 
that DOE's draft rule 10 CFR part 834 (Radiation Protection of the 
Public and the Environment) needs to be consistent with CERCLA and 
that inconsistencies exist between the draft rule and CERCLA and NCP 
guidance.
    \100\ October 2002 Memorandum of Understanding between EPA and 
NRC to identify the interactions for only the decommissioning and 
decontamination of NRC-licensed sites and ensure dual regulation 
does not occur regarding the cleanup and reuse of NRC-licensed 
sites.
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    The 1988 UST regulation contains prescriptive procedures UST owners 
and operators must follow in responding to releases into the 
environment. NRC regulations are performance-based actions; they 
identify performance measures that are designed to ensure an adequate 
safety margin and offer incentives for licensees to improve safety 
without formal regulatory intervention.\101\ Accordingly, DOE created 
orders to supplement EPA regulations for USTs at DOE facilities already 
subject to the 1988 UST regulation.\102\ NRC requires that facilities 
perform site remediation as part of the decommissioning process, but 
there are currently no NRC regulations that require remediation at 
active facilities, unless dose limits are exceeded.\103\
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    \101\ Contract No. GS-10F-0309N, EPA Work Order No. EP-G10S-
00001, Work Order No. 1004, Task 2, Subtask c, Quick Turnaround 
Request No. 6, Release Response and Corrective Action.
    \102\ Ibid.
    \103\ Ibid.
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    EPA concludes it is appropriate to continue requiring release 
response and corrective action for these tanks, if the need arises. Due 
to the sensitive nature of these facilities, implementing agencies have 
flexibility to establish appropriate response and remediation 
requirements for owners and operators at these facilities.
Move from Deferred to Partially Excluded
    The 1988 UST regulation used the term deferred for USTs containing 
radioactive material and for emergency generator UST systems at nuclear 
power generation facilities regulated by the NRC. This indicated that 
although these tanks were subject to some parts of the UST regulation, 
EPA intended to continue evaluating the applicability of full 
regulation of these tanks at a future date. EPA reconsidered these 
tanks and is making a final determination. EPA is excluding these tanks 
from most requirements in this final UST regulation; however, the 
regulatory requirements in subparts A and F for these systems remain 
the same.
Installation Requirements for Partially Excluded Tanks
    In the 1988 UST regulation, deferred USTs containing radioactive 
material and emergency generator UST systems at nuclear power 
generation facilities regulated by NRC were required to meet the 
interim prohibition requirements of Sec.  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). While NRC's 
regulation addresses design and installation standards, interim 
prohibition requirements have been in effect since the 1988 UST 
regulation. Accordingly, owners and operators have had to follow this 
requirement since the effective date of the 1988 UST regulation. EPA 
has no information suggesting that maintaining this requirement has 
been an issue for owners and operators. After considering commenters' 
feedback, EPA concluded that the historic level of regulation for these 
tanks is appropriate and provides adequate environmental controls to 
ensure environmental protection. Therefore, this final UST regulation 
continues to require that owners and operators of these tanks comply 
with the requirements of Sec.  280.11. Because EPA is partially 
excluding these systems, the term interim prohibition no longer 
applies. Therefore, EPA is rewording the title of Sec.  280.11 to 
Installation requirements for partially excluded UST systems. In 
addition, EPA is changing Sec.  280.11(a) to reflect that these 
requirements are installation requirements rather than prohibitions on 
installation.
    After considering comments and additional information, this final 
UST regulation excludes owners and operators of these tanks from 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); H (Financial Responsibility); 
J (Operator Training); and K (UST Systems with Field-Constructed Tanks 
and Airport Hydrant Fuel Distribution Systems). Owners and operators of 
these tank systems are still required to comply with subparts A 
(Program Scope and Installation Requirements for Partially Excluded

[[Page 41600]]

UST Systems) and F (Release Response and Corrective Action for UST 
Systems Containing Petroleum or Hazardous Substances).
    This final UST regulation also amends Sec.  280.10(c)(4) which 
refers to facilities licensed under 10 CFR part 50. This change is 
consistent with the regulatory citation listed in the Spill Prevention, 
Control, and Countermeasure provision in 40 CFR part 112 and also 
applies to installation of these tanks at NRC facilities in the future.

D. Other Changes

1. Changes to Overfill Prevention Equipment Requirements
    Through extensive stakeholder outreach, EPA identified vent line 
flow restrictors (also called ball float valves) as a significant 
concern for operability and safety. As a result, this final UST 
regulation modifies the 1988 UST regulation by eliminating vent line 
flow restrictors as an option for meeting the overfill prevention 
equipment requirement for new tank installations and when overfill 
prevention equipment is replaced. EPA makes this change to: reduce the 
frequency of UST releases due to operability issues, address system 
safety concerns, and address personnel safety concerns. Below are the 
issues:
     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 non-tight areas. If vapors continue to 
escape from 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 be damaged during deliveries when product is pumped into the tank. 
PEI's recommended practice for installation, RP 100, advises 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 because pressure can build up in the tank when the vent line 
flow restrictor 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 to meet the overfill prevention 
requirement for their UST systems.
    Owners and operators using a vent line flow restrictor before the 
effective date of this final UST regulation may continue using it to 
meet the overfill prevention requirement, as long as it operates 
properly by restricting the flow of regulated substances into the UST 
when the device activates. Flow restrictors in vent lines must be 
periodically inspected for proper operation according to section B-3, 
Overfill Prevention Equipment Inspections. This means that the flow 
restrictor will need to be accessible to the person inspecting the 
overfill prevention device. In addition, owners and operators may 
continue to use flow restrictors in UST system vent lines for reasons 
other than meeting the overfill prevention requirement, as long as the 
flow restrictors do not interfere with operation of the overfill 
prevention equipment being used.
    Most commenters supported this change to the 1988 UST regulation. 
Several even suggested requiring retrofits of vent line flow 
restrictors with another type of overfill prevention equipment. Because 
EPA is concerned about imposing too many additional costs on owners and 
operators of existing UST systems, EPA is not requiring retrofits of 
existing vent line flow restriction devices, as long as they operate 
properly, alert delivery personnel, and prevent overfills. Some 
commenters suggested EPA continue to allow the use of vent line flow 
restrictors if they meet the criteria set forth in PEI's RP 100. EPA 
reviewed the PEI recommended practice and noted that the code sets 
criteria for the allowed use of vent line flow restrictors. However, 
more importantly, the code advises against using vent line flow 
restrictors for overfill prevention under any circumstance because they 
pressurize the UST, creating a hazardous condition when the device 
operates as designed. Consistent with PEI's RP 100 advisory, EPA is not 
allowing owners and operators to use vent line flow restrictors in new 
tanks or when overfill prevention equipment is replaced. Finally, 
several commenters suggested EPA continue to allow the use of vent line 
flow restrictors, as long as the flow restrictor can be shown to 
operate effectively. Because it is difficult to determine if flow 
restrictors in vent lines will effectively restrict flow when the tank 
is close to being full, EPA is not allowing their use in new UST system 
installations or when overfill prevention equipment is replaced. 
However, the final UST regulation allows continued use of vent line 
flow restrictors installed before the effective date of the final UST 
regulation, as long as they operate properly, alert delivery personnel, 
and prevent overfills.
2. Internal Linings that Fail the Periodic Lining Inspection and Cannot 
Be Repaired
    About 3 percent of tanks rely on internal lining as the sole method 
of corrosion protection to meet the 1988 UST regulation.\104\ Tanks 
that were internally lined to meet the 1988 UST regulation corrosion 
protection requirement at Sec.  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, this language, which was in the 1988 UST regulation 
preamble, was inadvertently omitted from the 1988 UST regulation.
---------------------------------------------------------------------------

    \104\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.
---------------------------------------------------------------------------

    This final UST regulation modifies the 1988 UST regulation by 
requiring owners and operators to permanently close an UST that uses 
internal lining as the sole method of corrosion protection for the tank 
when the 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. 
EPA understands that codes of practice for internal lining inspections 
in use as of publication of this final UST regulation contain pass or 
fail criteria for the internal lining and criteria for allowing repairs 
to an internal lining that fails the internal lining inspection.

[[Page 41601]]

    Owners and operators using internal lining as the sole method of 
corrosion protection for the tank may continue using that method as 
long as the internal lining is periodically inspected according to 
Sec.  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,\105\ 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 Sec.  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. In addition, owners and 
operators may use internal linings for purposes other than meeting 
EPA's corrosion protection upgrade requirement (for example, internal 
linings used for compatibility or secondary containment).
---------------------------------------------------------------------------

    \105\ EPA UST Technical Compendium Question And Answer # 14: 
www.epa.gov/oust/compend/nus.htm.
---------------------------------------------------------------------------

    Most commenters supported this change to the 1988 UST regulation. 
Some even suggested more restrictive requirements: either phasing out 
internal lining as a corrosion protection upgrade or permanently 
closing an UST if the lining inspection failed. EPA is not requiring 
these more restrictive approaches because we think internal lining 
repairs can be appropriate and protect the environment when conducted 
according to a code of practice developed by a nationally recognized 
association or independent testing laboratory. In addition, requiring 
permanent closure under these more restrictive circumstances would 
place additional financial burdens on UST owners and operators. Several 
commenters offered adding cathodic protection and relining the tank as 
alternatives to permanent closure. EPA is not including these options 
in this final UST regulation because internally lined tanks that fail 
the lining inspection and cannot be repaired according to a code of 
practice are generally older and are nearing or past the end of their 
useful lives.
3. Notification
    This final UST regulation adds a one-time notification of existence 
for UST systems with field-constructed tanks and UST systems identified 
as airport hydrant fuel distribution systems. In addition, it adds a 
new notification requirement for ownership changes; provides a new form 
for making notification of ownership changes; and makes minor changes 
to the notification language and notification form.
    EPA agrees with commenters who opposed requiring one-time 
notification of existence for emergency power generator UST systems as 
was proposed. Commenters explained, and EPA agrees, that since the 1988 
UST regulation deferred these systems only from the release detection 
requirements in subpart D, owners should have notified the appropriate 
implementing agency within 30 days of bringing an UST system into use 
in accordance with the notification requirements in subpart B. 
Therefore, in this final UST regulation, the requirement to submit a 
one-time notification of existence applies only to owners of UST 
systems with field-constructed tanks and airport hydrant fuel 
distribution systems. (This one-time notification of existence does not 
apply to wastewater treatment tank systems, UST systems containing 
radioactive material that are regulated under the Atomic Energy Act of 
1954, and UST systems that are part of an emergency generator system at 
nuclear power generation facilities regulated by the Nuclear Regulatory 
Commission under 10 CFR part 50 previously deferred in the 1988 UST 
regulation and partially excluded in this final UST regulation.)
    Furthermore, EPA agrees with commenters' requests to extend the 
time frame of 30 days in the 2011 proposed UST regulation for owners of 
UST systems with field-constructed tanks and airport hydrant fuel 
distribution systems to submit their one-time notification of 
existence. To provide owners more time for identifying and gathering 
information about these previously deferred systems, EPA is allowing 
owners of existing UST systems with field-constructed tanks and airport 
hydrant fuel distribution systems to submit a one-time notification of 
existence within 3 years of the effective date of this final UST 
regulation. EPA is requiring owners of UST systems with field-
constructed tanks and airport hydrant fuel distribution systems brought 
into use after the effective date of the final UST regulation to submit 
notification forms; this notification requirement has been in place 
since 1986 for all UST owners bringing new USTs into use. See subpart K 
for other requirements related to UST systems with field-constructed 
tanks and airport hydrant fuel distribution systems.
    Several commenters requested EPA allow 60 days instead of 30 days 
to submit a notification of ownership change, noting that the 30-day 
requirement is too stringent. One commenter stated that the time frame 
should be relaxed to account for large organizations where paperwork 
could involve a significant amount of time to process. Another stated 
that 30 days would be too short and unduly burdensome on small 
businesses. While EPA fully considered these comments, EPA thinks it is 
important for the ownership change notification requirement to be 
consistent with the new tank notification requirement (within 30 days 
of bringing an UST into use) in place since 1988. In addition, the 
ownership change notification form is shorter and takes less time to 
complete than the new tank notification form. As a result, this final 
UST regulation requires owners to submit a notification of ownership 
change within 30 days of assuming ownership of regulated UST systems.
    In this final UST regulation, EPA provides a new notification form 
titled Notification of Ownership Change for Underground Storage Tanks 
under appendix II. This form supplants the List of Agencies Designated 
to Receive Notifications in appendix II of the 1988 UST regulation. The 
list, published in 1988, contained agency names, addresses, and phone 
numbers, many of which are no longer accurate. EPA considered updating 
the list, but given the frequency with which contact information 
changes, decided it is pointless to publish information in the final 
UST regulation since it will quickly become obsolete. Rather, owners 
can obtain current agency contact information on EPA's Web site at 
www.epa.gov/oust.
    Two commenters indicated it was unclear who the implementing agency 
is and whether owners and operators need to notify both the state and 
EPA. In this final UST regulation, EPA is clarifying that owners must 
submit notification forms to the appropriate implementing agency. The 
term implementing agency is defined in the UST regulation and owners 
can obtain current contact and other information regarding their 
implementing agency on EPA's Web site at www.epa.gov/oust. In practice, 
EPA expects most owners will submit notification forms only to their 
respective state as their implementing agency, except in instances 
where the implementing agency is EPA. For example, EPA is the 
implementing agency for USTs located in Indian country; thus, owners 
with USTs in Indian country will submit their

[[Page 41602]]

notification forms to EPA. Owners should also be aware that individual 
states may have state versions of notification forms which owners 
should use instead when submitting to the implementing agency. EPA is 
revising the regulatory language in Sec.  280.22(a) and (b) and 
including language in subpart K to reflect that state forms may be used 
if the state requires owners to use notification forms that differ from 
those in appendices I and II.
    Lastly, EPA is amending the notification form in appendix I and the 
ownership change form in appendix II to incorporate comments regarding 
specific items on these forms. For example, two commenters noted that 
owners of previously deferred UST systems would be unable to complete 
the Certification of Installation section of the Notification for 
Underground Storage Tanks form because they were not subject to this 
requirement when the UST system was brought into use. In addition, 
records of installation for these previously deferred UST systems are 
likely to be nonexistent given the passage of time since installation. 
EPA agrees with these commenters and is revising the notification form 
to indicate that only owners of UST systems with field-constructed 
tanks and airport hydrant fuel distribution systems brought into use 
after the effective date of this final UST regulation need to complete 
this section.
4. Compatibility
Regulated Substance and Motor Fuel Definitions
    This final UST regulation revises the regulated substance 
definition to clarify that UST systems containing petroleum derived 
from non-crude oil products are regulated. The preamble to the 
supplement of the proposed 1988 UST regulation indicates that petroleum 
products can be derived from other materials, such as biomass, plant 
material, organic waste, coal, and shale oil.\106\ Petroleum is 
comprised of a complex blend of hydrocarbons regardless of its source 
material.
---------------------------------------------------------------------------

    \106\ ``40 CFR parts 280 and 281 USTs; Supplement to Proposed 
Rule,'' 52 FR 48640 (December 23, 1987).
---------------------------------------------------------------------------

    Many people applied the definition of regulated substance in the 
1988 UST regulation to petroleum UST systems only if the petroleum was 
derived from crude oil. This final UST regulation clarifies that 
petroleum derived from non-crude oil based products, such as green 
gasoline, is a regulated substance under 40 CFR part 280. This 
clarification is consistent with the preamble to the 1988 UST 
regulation, which indicates petroleum is not limited to being derived 
from crude oil.
    This final UST regulation also modifies the definition of motor 
fuel to better accommodate new motor fuels that may be marketed and 
stored in the future. The definition in the 1988 UST regulation listed 
motor fuel products. This led to confusion as to whether new fuels, 
such as petroleum blended with ethanol or biodiesel, are motor fuels. 
This final UST regulation clarifies the definition of motor fuel and 
explains that it is any fuel typically used to operate a motor engine. 
In addition, EPA received comments to change the motor fuel definition 
from petroleum and petroleum-based substances to a complex blend of 
hydrocarbons. EPA agrees that using the phrase complex blend of 
hydrocarbons eliminates ambiguity; it provides a clearer definition of 
motor fuel by including complex blends of hydrocarbons that may not be 
petroleum or petroleum-based. EPA is making this change in this final 
UST regulation.
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 ethanol- and biodiesel-
blended fuels increases, EPA is concerned that not all UST system 
equipment or components are compatible with these fuel blends. For 
purposes of compatibility, EPA uses the term equipment to mean a group 
of components assembled together by the manufacturer. Compatibility can 
be determined for all components of a piece of equipment. Compatibility 
determinations for equipment are typically useful when an UST system is 
newly installed or when a complete piece of equipment is replaced. 
Examples of equipment include the piping system, STP assembly, and 
automatic shutoff device assembly. A component is considered an 
individual piece of an UST system and is typically a single piece of 
the equipment. Component compatibility is determined on a piece by 
piece basis. A component compatibility determination is typically 
needed when performing repairs on an UST system where only parts of a 
piece of equipment are replaced. Examples of components include 
gaskets, seals, and other individual pieces that form a piece of 
equipment.
    Gasoline containing 10 percent or less ethanol (E10) has been used 
in parts of the United States for many years. UST equipment and 
component manufacturers accommodated the E10 market by producing 
compatible equipment and components. According to the Renewable Fuels 
Association, ethanol is blended into over 90 percent of all gasoline 
sold in the United States,\107\ predominantly as E10. Recently, the 
United States has been moving toward use of higher blends of ethanol, 
due in part to federal and state laws encouraging increased use of 
biofuels. While most UST system equipment and components are compatible 
with E10, fuel blends containing greater than 10 percent ethanol do not 
have a long history of storage and may not be compatible with certain 
materials in existing UST systems. According to a 2011 report published 
by the U.S. Department of Energy's Oak Ridge National Laboratory,\108\ 
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) \109\ 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 degraded more when exposed 
to 25 percent ethanol test fluid than when exposed to 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.\110\ Based on this information, this 
final UST regulation clarifies the compatibility requirements for 
owners and operators storing regulated substances containing greater 
than 10 percent ethanol.
---------------------------------------------------------------------------

    \107\ Renewable 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.
    \108\ Oak Ridge National Laboratory, Intermediate Ethanol Blends 
Infrastructure Materials Compatibility Study: Elastomers, Metals, 
and Sealants (March 2011).
    \109\ Underwriters 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.
    \110\ Westbrook, 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.
---------------------------------------------------------------------------

    This final UST regulation also clarifies the compatibility 
requirements for owners and operators storing regulated substances 
containing greater than 20 percent biodiesel. Although the total use of 
biodiesel is significantly less than that of ethanol, biodiesel has

[[Page 41603]]

become increasingly available across the United States and may be 
incompatible with certain materials in UST systems. For example, pure 
biodiesel (B100) 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,\111\ ``B100 will degrade, soften, or seep through some hoses, 
gaskets, seals, elastomers, glues, and plastics with prolonged 
exposure. . . . Nitrile rubber compounds, polypropylene, polyvinyl, and 
Tygon[supreg] materials are particularly vulnerable to B100.''
---------------------------------------------------------------------------

    \111\ National 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.
---------------------------------------------------------------------------

    In contrast, the properties of very low blends of biodiesel, such 
as B5 or less, are so similar to those of petroleum diesel that the 
American Society for Testing and Materials (ASTM) International 
considers conventional diesel that contains up to 5 percent biodiesel 
to meet its Standard Specification for Diesel Fuel Oils.\112\ 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, such as B5 and B2, ``. . 
. have no noticeable effect on materials compatibility.'' \113\ In 
addition, fleet service sites have stored B20 in UST systems for years, 
and EPA is not aware of compatibility-related releases associated with 
those UST systems storing B20. Therefore, this final UST regulation 
requires tank owners and operators who store greater than 20 percent 
biodiesel in their UST systems demonstrate compatibility of UST 
equipment or components by one of the options listed in Sec.  280.32.
---------------------------------------------------------------------------

    \112\ ASTM Standard D975, 2010c, Standard Specification for 
Diesel Fuel Oils, ASTM International, West Conshohocken, PA, 2010, 
DOI: 10.1520/D0975-10C, www.astm.org.
    \113\ National 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.
---------------------------------------------------------------------------

    This final UST regulation retains the requirement for owners and 
operators to use UST systems made of or lined with materials that are 
compatible with the substance stored in the UST system. It does not 
change the compatibility requirement in the 1988 UST regulation, but 
does add several options for owners and operators to demonstrate that 
their UST systems are compatible with regulated substances containing 
greater than 10 percent ethanol, greater than 20 percent biodiesel, or 
any other regulated substances identified by the implementing agency. 
Owners and operators of these UST systems must meet one of the 
following options:

 Use equipment or components that are certified or listed by a 
nationally recognized, independent testing laboratory for use with the 
fuel stored
 Use equipment or components approved by the manufacturer to be 
compatible with the fuel stored

    In addition, owners and operators may use another option determined 
by the implementing agency to be no less protective of human health and 
the environment than the methods listed above.
    These options provide owners and operators flexibility in 
demonstrating compatibility while still protecting human health and the 
environment. In the past, owners and operators typically demonstrated 
compatibility by using equipment or components certified or listed by a 
nationally recognized, independent testing laboratory, such as UL. Many 
pieces of UST equipment and 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. However, many other pieces 
of equipment and components of UST systems, 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 compatibility testing 
on UST system equipment or components with biodiesel-blended fuels. 
Absent certification or listing from a nationally recognized, 
independent testing laboratory or other verification that the equipment 
or component may be used with anything other than conventional fuels, 
the suitability of an UST system for use with biodiesel blends is 
questionable. As a result, EPA is providing several options for 
demonstrating compatibility to reduce the risk of releases due to 
material incompatibility. Owners and operators storing regulated 
substances blended with greater than 10 percent ethanol or greater than 
20 percent biodiesel must meet the compatibility requirements before 
storing those regulated substances.
    For equipment and components tested and approved by a nationally 
recognized, independent testing laboratory, owners and operators may 
demonstrate compatibility solely by keeping records of the equipment 
and 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. This means 
owners and operators will be able to demonstrate compatibility by 
retaining equipment or component records.
    Owners and operators may also demonstrate compatibility by 
obtaining manufacturer's approval of the equipment or component. The 
manufacturer's approval must be in writing and include an affirmative 
statement that the equipment or component is compatible with the fuel 
blend stored. The manufacturer's approval must also specify the range 
of fuel blends for which the equipment or component is compatible. 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 enables owners and operators to demonstrate 
compatibility for equipment or components not approved for use by a 
nationally recognized, independent testing laboratory. It also provides 
implementing agencies with verification that the equipment or component 
is compatible with the fuel stored.
    Implementing agencies may approve other options for complying with 
the compatibility requirement for regulated substances containing 
greater than 10 percent ethanol or greater than 20 percent biodiesel if 
they are no less protective of human health and the environment than 
manufacturer's approval or a listing, labeling, or approval by a 
nationally recognized, independent testing laboratory. This provides 
implementing agencies with flexibility to consider other approaches 
they determine to be appropriate. For example, in lieu of an 
affirmative compatibility determination, implementing agencies may 
allow secondarily contained UST systems using interstitial monitoring 
to store regulated substances containing greater than 10 percent 
ethanol or 20 percent biodiesel. The rationale is that a leak from the 
primary containment will be contained by secondary containment and 
detected by interstitial monitoring equipment before regulated 
substances reach the environment.
    Although these options for demonstrating compatibility apply to

[[Page 41604]]

UST systems storing regulated substances containing greater than 10 
percent ethanol and greater than 20 percent biodiesel, this final UST 
regulation extends the compatibility demonstration requirement to other 
regulated substances identified by implementing agencies. This provides 
implementing agencies with the flexibility to require a demonstration 
of compatibility if there are concerns about other existing regulated 
substances and when new regulated substances, such as biobutanol, enter 
the fuel market.
    EPA received comments about the difficulty in determining whether 
some UST system equipment or components currently installed in the 
ground are compatible with ethanol and biodiesel blended fuels. In 
fact, EPA thinks there are many cases where some equipment or 
components of UST systems in the ground as of 2014 are not compatible 
with newer fuels. Unless owners and operators specifically requested 
all of the UST system be compatible with higher ethanol or biodiesel 
blends, installers probably installed lower cost options for certain 
UST system equipment, such as a STP assembly, which may not be 
compatible with some newer fuels. Non-compatible equipment or 
components, such as equipment in containment sumps, are usually easier 
to upgrade or replace than the tank or piping because they are 
typically located in areas not requiring excavation. In addition, EPA 
provides various options for meeting the compatibility requirement. To 
protect the environment from releases of ethanol blends greater than 10 
percent, biodiesel blends greater than 20 percent, or any other 
regulated substance identified by the implementing agency, owners and 
operators must do one of the following:

 Demonstrate the UST system is compatible through certification 
or listing by a nationally recognized, independent testing laboratory 
or manufacturer approval
 Replace equipment or components not compatible or for which 
compatibility cannot be determined
 Use another option determined by an implementing agency to be 
no less protective of human health and the environment
 Not store these regulated substances in the UST system

    These options provide owners and operators with adequate 
flexibility when demonstrating compatibility and determining whether 
certain regulated substances may be stored in the UST system.
    Some commenters suggested adding other options owners and operators 
could use for determining compatibility. One suggested addition was 
certification by a professional engineer (P.E.), who would perform an 
on-site UST system analysis to determine compatibility. In order to 
perform this analysis, a P.E. would need to know the manufacturer and 
model of all UST system equipment or components. Because this 
information cannot be entirely obtained through visual observation, a 
P.E. would need to obtain records of the equipment to make an 
assessment and then search for relevant equipment listings or 
manufacturer certifications. This means a P.E. certification is 
equivalent to the options in this final UST regulation. EPA does not 
object to a P.E. performing a records review; however, we think it is 
impractical for a P.E. to perform a visual assessment of an UST system 
and make a compatibility determination in the absence of equipment 
records and certifications. Therefore, EPA is not explicitly allowing a 
P.E. to make a compatibility determination in the absence of UST system 
information and compatibility certifications.
    Some commenters suggested EPA use a tiered approach to demonstrate 
compatibility for UST systems storing regulated substances containing 
greater than 10 percent ethanol and greater than 20 percent biodiesel, 
and choose one method of determining compatibility. EPA interprets 
tiered approach to mean requiring the more stringent option first, 
which is listing by a nationally recognized, independent testing 
laboratory. If the more stringent option is not available, the second 
tier would allow manufacturer's approval. This final UST regulation 
does not include a tiered approach because EPA thinks using this method 
for demonstrating compatibility makes the final UST regulation too 
complicated for implementing agencies as well as owners and operators. 
Even if the UST system equipment or components have a listing from a 
nationally recognized, independent testing laboratory, we do not always 
know whether compatibility testing was part of the listing. EPA thinks 
manufacturers will only issue written claims of compatibility if they 
have sufficient information to support such claims.
    The 2011 proposed UST regulation required owners and operators 
retain these records:

 For all new and replaced equipment or components--so it is 
easier to demonstrate whether or not the equipment or component is 
compatible with the regulated substance stored
 For UST systems storing greater than 10 percent ethanol, 
greater than 20 percent biodiesel, or other regulated substance 
identified by the implementing agency--to demonstrate the UST system is 
compatible with these regulated substances or compliance with 
alternatives allowed by the implementing agency

    However, after careful consideration of comments, this final UST 
regulation does not require owners and operators maintain records for 
all new and replaced equipment. EPA decided it is too onerous for 
owners and operators to maintain this information, which may not 
transfer when facilities change ownership.
    To make it easier for UST owners and operators to comply with the 
compatibility requirement, this final UST regulation requires that 
owners and operators notify the implementing agency at least 30 days 
before switching to a regulated substance containing greater than 10 
percent ethanol, greater than 20 percent biodiesel, or any other 
regulated substance identified by the implementing agency. This 
notification prior to switching fuels gives the implementing agency an 
opportunity to inquire about the compatibility of the UST system before 
owners and operators begin storing the new regulated substance. This 
notification requirement already exists in some states. For example, 
Colorado, North Carolina, and South Carolina require UST owners submit 
a completed compatibility checklist prior to storing some newer fuel 
blends. To notify, owners and operators may contact implementing 
agencies via EPA's Web site at www.epa.gov/oust/.
    This final UST regulation requires owners and operators maintain 
records that demonstrate compliance with Sec.  280.32(b) for as long as 
the UST system stores greater than 10 percent ethanol, greater than 20 
percent biodiesel, or other regulated substances identified by the 
implementing agency. Owners and operators must retain records for these 
regulated substances in order to meet this compatibility requirement.
    The 2011 proposed UST regulation preamble included an extensive 
list of UST system equipment and components that must be compatible but 
that list was not in the 2011 proposed UST regulation. Based on 
commenter input, this final UST regulation includes a list of UST 
system equipment and components that owners and operators

[[Page 41605]]

must demonstrate to be compatible when using the manufacturer's 
approval and certification or listing options. The UST system equipment 
or components that owners and operators must demonstrate to be 
compatible are those related to the tank, piping, containment sumps, 
pumping equipment, release detection equipment, spill prevention 
equipment, and overfill prevention equipment. These items are a subset 
of an UST system, as defined by Sec.  280.12, which, if incompatible, 
could lead to a release.
    This changes protect human health and the environment from 
potential releases from incompatible UST systems. These changes are not 
overly burdensome, nor do they require costly retrofits. They give 
owners and operators flexibility, yet provide EPA with confidence that 
UST systems are compatible with new fuel blends when owners and 
operators use one or more of the options to determine compatibility. 
This final UST regulation provides owners and operators with certainty 
about which options are allowed for demonstrating UST system 
compatibility with the substances stored.
    Finally, EPA is removing from the compatibility section of the 1988 
UST regulation API Recommended Practice 1627, which is a code of 
practice related to methanol-blended fuels. EPA included this code of 
practice in the 1988 UST regulation to help owners and operators 
demonstrate compliance with the compatibility requirement for methanol-
blended fuels. However, EPA's subsequent review of this code revealed 
no substantial information about determining compatibility of UST 
systems with methanol-blended fuels. In August 2010, API published an 
updated version of API Recommended Practice 1626, which is a code of 
practice for storing and handling of ethanol-blended fuels. In the 2011 
proposed UST regulation, EPA removed this code of practice because the 
proposed UST regulation provided specific requirements about how owners 
and operators may demonstrate compatibility for their UST systems. 
However, because commenters pointed out the code of practice includes 
requirements for demonstrating compatibility of UST systems with 
ethanol-blended fuels, EPA is including it as a code of practice that 
may be useful in complying with the compatibility section in this final 
UST regulation.
5. Improving Repairs
Changes to the Definition of Repair
    This final UST regulation adds these UST system components to the 
definition of repair: piping; spill prevention equipment; overfill 
prevention equipment; corrosion protection equipment; and release 
detection equipment. The 1988 UST regulation definition of repair used 
the generic term UST system component and provided no detail about what 
an UST system component is. By adding these UST system components, EPA 
is making it clear that these specific components are subject to the 
repairs allowed section of the final UST regulation. This means owners 
and operators performing repairs on these UST system components must 
follow the repairs allowed section (Sec.  280.33).
    Owners and operators commonly fix UST components that have not 
caused a release of regulated substance from the UST system. However, 
the repair definition in the 1988 UST regulation did not consider these 
types of fixes as repairs since they were not associated with releases. 
This final UST regulation removes the link that a repair is only 
associated with a release, requiring owners and operators meet the 
repairs allowed section (Sec.  280.33) when fixing UST system 
components that have failed to function properly, even if they have not 
caused a release of product from the UST system. This change means 
owners and operators must perform repairs in accordance with a code of 
practice developed by a nationally recognized association or 
independent testing laboratory and test or inspect the repaired 
equipment. This change ensures repair activities separate from a 
release are conducted properly. For example, under the 1988 UST 
regulation, fixing a cathodic protection system was not considered a 
repair. In this final UST regulation, this activity is considered a 
repair that must meet the repair requirements in Sec.  280.33.
    EPA proposed adding a suspected release as part of the definition 
of repair, so repairs associated with suspected releases are covered 
under the repair definition. However, based on comments received, EPA 
is not including suspected release as part of the definition of repair 
in this final UST regulation because that circumstance is already 
covered under the ``failed to function properly'' language in the 
repair definition. EPA disagrees with commenters suggesting EPA remove 
the ``failed to function properly'' language because EPA thinks repairs 
need to occur both when a release occurs and when UST system equipment 
fails to function properly.
    Finally, based on comments received, EPA is adding clarifying 
language to the repair definition to ensure UST system component 
repairs restore components to proper operating condition.
Tests or Inspections After Repairs
    This final UST regulation adds new testing or inspection 
requirements for spill, overfill, and secondary containment equipment 
following a repair and allows owners and operators up to 30 days 
following the repair to test or inspect the repaired UST component. EPA 
acknowledges that some secondary containment can be tested through 
normal release detection if vacuum, pressure, or liquid-filled methods 
of interstitial monitoring are used as the method of release detection. 
In these cases, the secondary containment test occurs automatically, 
making it unnecessary to perform additional testing.
    EPA agrees with commenters about using the term inspecting rather 
than testing as it relates to the operability of overfill prevention 
equipment. Performing inspections will avoid potentially overfilling 
the tank while ensuring the overfill prevention equipment operates 
properly. EPA is revising the overfill prevention equipment test to be 
an overfill prevention equipment inspection.
    EPA agrees with commenters who indicated that testing or inspection 
following repair should only apply to the component or components 
repaired and not to the entire UST system. This final UST regulation 
requires testing or inspection, as appropriate, following a repair only 
for those UST system components repaired and not to all components at 
the UST site. In addition, EPA is requiring owners conduct a test of 
the secondary containment area (including containment sumps) only if 
the secondary containment area is repaired and that area is used for 
interstitial monitoring. Note that all secondary containment areas must 
use interstitial monitoring for tanks and piping installed 180 days 
after the effective date of this final UST regulation (see section A-2, 
Secondary Containment for additional information). Repairs to the 
primary containment areas of a tank or piping may be tested using other 
options for tanks and piping listed in the repairs section.
    Several commenters expressed concern that replacing UST system 
components that have not yet failed to function properly would trigger 
the repair requirements. If owners and

[[Page 41606]]

operators choose to replace UST system components, those components 
must meet the installation requirements in Sec.  280.20(d). Therefore, 
replaced UST system components do not have to meet the repair 
requirements in Sec.  280.33.
    EPA solicited comments about whether to consider requiring tests or 
inspections of spill, overfill, and secondary containment areas before 
returning the UST system to service, rather than within 30 days of the 
repair. Many commenters were supportive of requiring testing or 
inspection before bringing the UST system back into service. However, 
this final UST regulation allows owners and operators up to 30 days 
following the repair to conduct testing or inspections. EPA thinks 
owners and operators need to test or inspect the repaired component as 
soon as possible following the repair. However, EPA understands there 
are circumstances where testing or inspection before returning the UST 
system to service may be impractical (for example, weather conditions, 
remote locations, or the need to schedule a test). In these examples, 
the UST system would remain out of service until the test or inspection 
is completed, resulting in unnecessary UST system down time for owners 
and operators. Thirty days allows some flexibility for completing the 
test or inspection, while allowing the UST system to return to service.
6. Vapor Monitoring and Groundwater Monitoring
    This final UST regulation retains vapor monitoring and groundwater 
monitoring as methods of release detection for tanks and piping 
installed before the effective date of this final regulation, as long 
as owners and operators demonstrate proper installation and performance 
through a site assessment. In addition, this final UST regulation 
revises the recordkeeping requirement in Sec.  280.45, which means 
owners and operators must maintain site assessments according to Sec.  
280.43(e)(6) and (f)(7) for as long as these release detection methods 
are used.
    In the 2011 proposed UST regulation, EPA phased out vapor 
monitoring and groundwater monitoring over a five year time frame. 
However, EPA received significant comments in support of retaining 
these release detection methods. Many commenters presented 
circumstances where EPA should allow owners and operators to use vapor 
monitoring and groundwater monitoring such as: Until the system is 
replaced and the secondary containment requirement is triggered; or 
when the UST implementing agency already has or will establish 
additional criteria for use. In addition, commenters suggested EPA 
continue allowing certain UST systems to use vapor monitoring and 
groundwater monitoring, specifying emergency generator tanks, certain 
high-throughput UST systems, or specific low-throughput systems. EPA 
also received numerous requests to expand our proposed release 
detection options for airport hydrant fuel systems and field-
constructed tanks to allow the use of vapor monitoring or groundwater 
monitoring. Under the 2011 proposed UST regulation, these options are 
not acceptable release detection options for owners and operators of 
airport hydrant systems and field-constructed tanks.
    EPA agrees with commenters that owners and operators of emergency 
generator tanks, certain high-throughput UST systems, and specific low-
throughput systems could benefit from continued use of vapor monitoring 
and groundwater monitoring until owners and operators replace their UST 
systems to meet the secondary containment requirement necessitating 
interstitial monitoring. EPA thinks that requiring owners and operators 
to maintain the site assessment will increase environmental protection 
appreciably beyond the 1988 UST requirements. Implementing agencies 
have noted that site assessments often do not exist for vapor or 
groundwater monitoring. Thus, by requiring site assessment records, we 
will ensure vapor and groundwater monitoring wells are properly located 
and function as effective release detection. EPA also thinks that 
allowing these release detection options to be customized and used for 
airport hydrant systems and field-constructed tanks will make it easier 
for owners and operators to comply with the release detection 
requirement.
    Therefore, this final UST regulation continues to allow vapor and 
groundwater monitoring as long as owners and operators maintain a site 
assessment that demonstrates the release detection method meets the 
requirements in this final UST regulation. Owners and operators of 
airport hydrant systems and field-constructed tanks will have to meet 
the requirements for vapor monitoring and groundwater monitoring 
described in subpart K (see section C-2 for additional information).
    The 1988 UST regulation defined criteria for the use of both 
release detection methods as explicitly as possible, given the large 
variation of site-specific conditions at UST sites across the country. 
EPA supports UST implementing agencies' efforts to better define site 
assessment criteria specific to their local geology in addition to what 
is required in the UST regulation. EPA also acknowledges and supports 
several UST implementing agencies' efforts in conducting construction 
certification and recertification inspections. However, EPA has not 
analyzed the economic burden construction certification and 
recertification inspections would place on UST implementing agencies 
and potentially UST system owners and operators. Therefore, this final 
UST regulation does not require installation inspections, 
certification, or recertification inspections of monitoring wells. EPA 
expects UST implementing agencies will continue reviewing and accepting 
site assessments according to their program policies.
    In the event of a confirmed release at an UST site, vapor 
monitoring and groundwater monitoring are no longer acceptable options 
for release detection unless a new site assessment for the release 
detection method is conducted. If a release is confirmed, an owner and 
operator will have to remediate the site according to 40 CFR part 280, 
subpart F. Following site remediation, and as long as replacement of 
the UST system does not trigger the secondary containment requirement, 
an owner and operator must obtain a new site assessment to verify 
appropriate use of these methods, if the owner and operator chooses to 
continue using vapor monitoring or groundwater monitoring as the 
primary release detection method. Otherwise, owners and operators must 
use another method of release detection according to subpart D or 
subpart K.
    At the time of the 2011 proposed UST regulation, EPA estimated 
approximately 5 percent of all active UST systems were using vapor 
monitoring or groundwater monitoring to comply with release monitoring 
requirements.\114\ Commenters confirmed that 5 percent of vapor 
monitoring and groundwater monitoring was accurate. EPA also confirmed 
that although the methods are used very infrequently in the majority of 
jurisdictions, there is considerably high use in certain states. 
Arkansas, Louisiana, and Mississippi have a significant number of 
owners and operators using vapor monitoring, groundwater monitoring, or 
a combination of the two methods.

[[Page 41607]]

Estimated use of both methods in these states is 29 percent, 12 
percent, and 65 percent, respectively. Confirmation of high use in one 
particular geographic area of the country influenced EPA's decision to 
continue allowing use of these methods.
---------------------------------------------------------------------------

    \114\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.
---------------------------------------------------------------------------

    EPA agrees with comments about major benefits for UST system owners 
and operators to use backup release detection, whether it is vapor 
monitoring, groundwater monitoring, or another method. However, neither 
the 1988 UST regulation nor this final UST regulation requires a 
secondary 30 day release detection method.
    EPA discussed several issues in the 2011 proposed UST regulation 
that prompted our proposal to no longer allow vapor monitoring and 
groundwater monitoring as primary methods of release detection. 
However, the requirement in this final UST regulation for owners and 
operators to maintain the record of a site assessment for as long as 
the method is used will address most of these issues.
    If the site assessment is available when inspecting USTs, UST 
implementing agencies can confirm proper installation and use of 
monitoring wells. For example, if inspectors find what they believe to 
be insufficient numbers of wells or wells improperly located to 
sufficiently monitor all portions of the tank or piping that routinely 
contain product, inspectors will be able to reference the site 
assessment to determine adequacy of the wells.
    The site assessment will also help UST implementing agencies 
determine whether certain conditions, which allow users to switch 
between vapor monitoring and groundwater monitoring due to seasonal 
variations, have been met. Monitoring wells must be properly 
constructed and installed to meet all criteria in Sec.  280.43(e) and 
(f). Wells used for vapor monitoring must allow vapors to collect; 
wells used for groundwater monitoring must be screened to prevent 
clogging and intercept the water table at both high and low groundwater 
conditions while being sealed from the ground to the top of the filter 
pack. Information regarding acceptability of the same wells used for 
both methods of release detection must be documented in the site 
assessment.
    In the 2011 proposed UST regulation, EPA discussed issues that were 
specific to vapor monitoring. These issues will be addressed when 
owners and operators maintain the site assessment for as long as the 
method is used. The site assessment will contain information on site 
conditions, such as whether porosity of the surrounding soil is 
sufficient. The site assessment will confirm that vapors to be 
monitored will be unaffected by groundwater, rainfall, or soil 
moisture. Perhaps the most crucial information in the site assessment 
is the background contamination level at the site. This will allow 
owners, operators, and implementing agencies to determine whether that 
level interferes with monitoring methods. It also marks the threshold 
for determining a release has occurred when monitoring for petroleum 
hydrocarbons.
    Maintaining the site assessment also addresses specific groundwater 
monitoring issues EPA discussed. Groundwater at times can be more than 
20 feet from the ground surface, due to seasonal water table 
variations. This can result in the depth to groundwater requirement not 
being met. Unless an analysis is performed and valid documentation 
regarding use of the wells for vapor monitoring during low water table 
conditions is included in the site assessment, the wells will be 
restricted for groundwater monitoring use only.
    In cases where there is no site assessment or an assessment does 
not sufficiently ensure requirements in Sec.  280.43(e) or (f) are met, 
UST system owners and operators must reassess the site and maintain 
documentation required in Sec.  280.43(e)(6) and (f)(7) in order to 
continue using groundwater or vapor monitoring as a method of release 
detection. At a minimum, a professional engineer or professional 
geologist, or equivalent licensed professional with experience in 
environmental engineering, hydrogeology, or other relevant technical 
discipline acceptable to the UST implementing agency must sign the new 
site assessment.
    EPA understands that in Arkansas, Louisiana, and Mississippi, where 
the methods are commonly used and account for the majority of use in 
the country, most UST system owners and operators or the UST 
implementing agency have sufficient documentation of the site 
assessment. This means most owners and operators in those states will 
not need to conduct a new site assessment to comply with this final UST 
regulation. Owners and operators in other areas of the country may need 
to conduct a site assessment in order to continue using vapor 
monitoring or groundwater monitoring.
    This final UST regulation also addresses another major aspect 
associated with vapor monitoring and groundwater monitoring methods. 
Equipment that is used as part of these release detection methods 
requires proper operation and maintenance in order to provide optimal 
monitoring results. Operation and maintenance requirements for 
electronic and non-electronic equipment are addressed in the release 
detection equipment testing requirement discussed in section B-5 and 
the walkthrough inspection requirement in section B-1, respectively.
7. Interstitial Monitoring Results, Including Interstitial Alarms, 
Under Subpart E
    This final UST regulation clarifies UST owners' and operators' 
responsibilities regarding interstitial monitoring results, including 
alarms, under 40 CFR part 280, subpart E. Specifically, EPA is making 
these changes:

 Sec.  280.50(b)--adding liquid in interstitial spaces of 
secondarily contained UST systems as an example of an unusual operating 
condition and adding to the list of criteria for not being required to 
report a suspected release that any liquid in the interstitial space 
not used as part of the interstitial monitoring method must be removed
 Sec.  280.50(c)--clarifying that an alarm during release 
detection monitoring is subject to the reporting requirement and 
describing exceptions to the reporting requirement
 Sec.  280.52(a)--adding owners and operators as appropriate 
must conduct secondary containment testing, and clarifying actions UST 
owners and operators must take if a test confirms a leak into the 
interstitial space or indicates a release to the environment

    The 1988 UST regulation implicitly covered interstitial monitoring 
when reporting suspected releases because it was a method of release 
detection. This final UST regulation makes changes to explicitly cover 
interstitial monitoring and reinforce that a leak into an interstitial 
space of a secondarily contained UST system also indicates a potential 
threat to the environment; leaks must be investigated, addressed, and 
as necessary, reported.
    This final UST regulation requires interstitial monitoring for all 
new or replaced tanks and piping (see section A-2, Secondary 
Containment). 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, 
must be handled.
    In the 1988 UST regulation, EPA indicated that product or water in 
the

[[Page 41608]]

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. To alleviate 
uncertainty for owners and operators, EPA provides information below 
about interstitial monitoring and responses to alarms.
    This final UST regulation revises Sec.  280.50(b) by adding 
interstitial spaces of secondarily contained UST systems and clarifying 
the presence of liquid in this space as an unusual operating condition 
unless the liquid is used for interstitial monitoring or meets the 
requirements described in Sec.  280.43(g)(2)(iv). 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 the two typically encountered liquids discovered in 
the interstice. However, EPA is using the broader term liquid to cover 
water, product, or other substances in the liquid-phase in the 
interstitial space. Any liquid in this space not used for interstitial 
monitoring or not meeting the requirements described in Sec.  
280.43(g)(2)(iv) indicates there is an UST system problem that needs to 
be resolved. As a result, EPA is specifying this as an unusual 
operating condition and is requiring UST owners and operators 
investigate and address it.
    Several commenters suggested changes to Sec.  280.50(b) of the 2011 
proposed UST regulation. Suggestions included: Deleting that water or 
product in the interstice is reportable and clarifying the requirement 
that the unexplained presence of water or product is an unusual 
operating condition. Based on comments, EPA in Sec.  280.50(b) of this 
final UST regulation is using the term liquid, rather than water or 
product, to address any liquid in the interstitial space. To add 
clarity to this final UST regulation, EPA is also restructuring the 
section to provide subsections with separate examples of unusual 
operating conditions. This final UST regulation also allows owners and 
operators to not remove or report liquid under two conditions: Within 
secondary barriers described in Sec.  280.43(g)(2)(iv), as long as 
interstitial monitoring is not rendered inoperative, or the liquid is 
used as part of the interstitial monitoring method.
    EPA is clarifying in Sec.  280.50(c) that an alarm during release 
detection monitoring, which indicates a potential release or compromise 
of the interstitial space, is subject to the reporting requirement. UST 
owners and operators must appropriately address all release detection 
monitoring alarms. For example, some interstitial monitoring systems 
will trigger an alarm, which indicates a potential release or that the 
interstitial space has been compromised. In subpart E, EPA is adding 
interstitial monitoring to emphasize its importance because the 
secondary containment requirement for new and replaced systems in 
section A-2 will increase the use of interstitial monitoring. UST 
owners and operators are not required to report alarms from defective 
system equipment or components or alarms that are investigated and 
determined to be a non-release. Also, UST owners and operators do not 
have to report leaks, which are contained in the interstitial space; 
but owners and operators must investigate and repair problems. Except 
as provided in Sec.  280.43(g)(2)(iv), any liquid in the interstitial 
space not used as part of the interstitial monitoring method, such as 
brine filled, must be removed.
    Several commenters misunderstood EPA's discussion regarding 
reporting alarms. In the 2011 proposed UST regulation, EPA intended 
that owners and operators need to investigate all alarms, but only 
report confirmed releases and suspected releases that could not be 
ruled out by an investigation. Commenters suggested these changes to 
EPA's 2011 proposed UST regulation at Sec.  280.50(c): Deleting 
language pertaining to alarms; changing language regarding the time 
allowed to repair, recalibrate, or replace defective system equipment; 
and including an exception for reporting alarms that have been 
confirmed to be false alarms. Based on comments, EPA in Sec.  280.50(c) 
of this final UST regulation is expanding and describing exceptions to 
reporting monitoring results, including investigation of an alarm from 
a release detection method that indicates a release may have occurred.
    EPA is adding secondary containment testing, as appropriate, to the 
release investigation and confirmation steps in Sec.  280.52(a) of the 
final UST regulation. EPA thinks it is important to clarify actions UST 
owners and operators must take if a test confirms a leak into the 
interstitial space or indicates a release has occurred. If a leak into 
the interstice is confirmed, an UST owner and operator must correct or 
address the problem. In addition to options listed in the 1988 UST 
regulation, this final UST regulation includes closure as an option 
when an owner and operator confirms a release. Nothing in this final 
UST regulation changes the requirement in subpart F for an UST owner 
and operator to take corrective action if a release occurred.
    In the 2011 proposed UST regulation, EPA suggested that UST owners 
and operators follow integrity test requirements, now referred to as 
secondary containment testing, of the interstitial area. Many 
commenters noted that tank tightness testing or line tightness testing 
may be more appropriate tests to confirm a suspected release under 
certain circumstances, and UST system owners and operators should be 
allowed the choice of determining which test to use. EPA agrees and is 
revising Sec.  280.52(a) to indicate use of secondary containment 
testing as appropriate.
    EPA received several comments about the terms release and leak used 
throughout the 2011 proposed UST regulation and the 1988 UST 
regulation. Historically, EPA used these terms interchangeably. As a 
result of EPA's new secondary containment and interstitial monitoring 
requirement (see section A-2, Secondary Containment), there is now a 
subtle but important distinction between the terms. The term release is 
defined in the Solid Waste Disposal Act. EPA provides the same 
definition of release in the UST regulation at Sec.  280.12. Release 
means any spilling, leaking, emitting, discharging, escaping, leaching 
or disposing from an UST into groundwater, surface water or subsurface 
soils. A release always reaches the environment. The term leak in this 
final UST regulation is a more general term that includes both cases of 
when a regulated substance enters into a contained area (such as 
secondary containment) but has not yet reached the environment and when 
a regulated substance reaches the environment (a release). Therefore, 
the term release is a subset of the more general term leak. Note that 
leaks and releases have investigation and reporting requirements in 
subpart E.
    As a result of distinguishing between a leak and a release, EPA is 
clarifying the definition of release detection. The 1988 UST regulation 
defined release detection as determining whether a release of a 
regulated substance occurred from the UST system into the environment 
or into the interstitial space between the UST system and its secondary 
barrier or secondary

[[Page 41609]]

containment around it. This final UST regulation revises the definition 
of release detection to clarify regulated substances entering into the 
interstitial space are leaks instead of releases. This final UST 
regulation defines release detection as determining whether a release 
of a regulated substance occurred from the UST system into the 
environment or a leak occurred into the interstitial space between the 
UST system and its secondary barrier or secondary containment around 
it. This change allows EPA to continue to use the term release 
detection as it applies to both leaks and releases.

E. General Updates

1. Incorporate Newer Technologies
    Since EPA promulgated the 1988 UST regulation, newer tank, piping, 
and release detection technologies have been developed and are being 
used. EPA is incorporating several of these newer technologies in this 
final UST regulation. In addition, because the 1988 UST regulation 
closure requirements unintentionally restrict use of a newer tank 
within a tank technology, EPA is revising closure requirements to 
provide additional flexibility for implementing agencies to allow 
field-constructed tank technologies that construct a tank within an 
existing closed tank. However, EPA is not specifically including field-
constructed tank within a tank technologies in the new tank standards 
section in Sec.  280.20 of the final UST regulation, because the tank 
construction technologies currently covered in this section include 
both factory constructed and field-constructed technologies. Note that 
Sec.  280.20(d) requires new UST systems, including tank within a tank 
technologies, to be properly installed according to a code of practice 
developed by a nationally recognized association or independent testing 
laboratory and the manufacturer's instructions.
Clad and Jacketed Tanks
    This final UST regulation adds steel tanks that are clad or 
jacketed with a non-corrodible material to the list of specific new 
tank design and construction options for UST systems. 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.\115\
---------------------------------------------------------------------------

    \115\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.
---------------------------------------------------------------------------

    The 1988 UST regulation allowed a steel-fiberglass-reinforced-
plastic composite tank (also called a fiberglass clad tank), but did 
not specifically include other non-corrodible claddings. In addition to 
fiberglass, manufacturers in 2014 are using other non-corrodible 
materials claddings for steel tanks, which are listed by UL standard 
1746, External Corrosion Protection Systems for Steel Underground 
Storage Tanks. These tank technologies are effective at preventing 
corrosion of the portion of the steel tank shell in contact with the 
ground. EPA considers a cladding to be a non-corrosive dielectric 
material, bonded to a steel tank with sufficient durability to prevent 
external corrosion during the tank's life.
    Because they were not commonly used at the time, EPA did not 
include jacketed tanks in the 1988 UST regulation. These tanks are now: 
More commonly used; UL 1746 listed for external corrosion protection; 
and effective in preventing corrosion of the steel tank shell. EPA 
considers the tank jacket to be a non-corrosive dielectric material 
that: is constructed as secondary containment or jacketed around a 
steel tank; has sufficient durability to prevent external corrosion of 
the steel tank shell during a tank's life; and prevents a regulated 
substance released from the primary steel tank wall from reaching the 
environment.
Non-Corrodible Piping
    The 1988 UST regulation allowed fiberglass-reinforced plastic 
piping, but did not specifically include other non-corrodible piping 
options such as flexible plastic piping. Both fiberglass and flexible 
plastic piping are listed under the UL 971 standard, Nonmetallic 
Underground Piping for Flammable Liquids. Non-corrodible piping not 
made of fiberglass-reinforced plastic (in particular, flexible plastic 
piping) was installed at UST sites beginning in the 1990s and has 
evolved over the past 20 years. Flexible plastic piping is made of 
various non-corrodible 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.\116\ This final UST regulation revises 
fiberglass-reinforced piping to be non-corrodible piping and allows UST 
owners and operators to install other types of non-corrodible piping, 
such as flexible plastic, without requiring implementing agencies to 
make a determination on the suitability of those materials.
---------------------------------------------------------------------------

    \116\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.
---------------------------------------------------------------------------

Release Detection Technologies
    The 1988 UST regulation allowed UST owners and operators to use 
other methods that meet release detection performance criteria listed 
at Sec.  280.43(h). Although continuous in-tank leak detection (CITLD) 
and SIR were allowed under Sec.  280.43(h), EPA is including both by 
name and providing specific performance criteria in this final UST 
regulation for the reasons described below.
CITLD
    The 1988 UST regulation allowed ATG systems as a recognized method 
of release detection. However, ATG systems were generally listed with 
performance requirements consistent with performing a static test. ATG 
systems rely on system down time and the absence of product delivery or 
dispensing activities to perform release detection. In static testing 
mode, an ATG system analyzes product level and determines whether a 
leak is present during that down time. UST owners and operators also 
use ATG systems as a means of continually monitoring tanks for 
potential releases. CITLD has evolved as a reliable means of providing 
release detection equivalent to other methods specified in Sec.  
280.41. Within this category of methods, this final UST regulation 
allows continuous in-tank methods where the system incrementally 
gathers measurements to determine a tank's leak status within the 30-
day monitoring period.
    One commenter asked EPA to further clarify the term CITLD. That 
commenter said EPA presented language in the 2011 proposed UST 
regulation that confused CITLD, continuous statistical leak detection 
(CSLD), and SIR because each is a statistically based release detection 
method. EPA agrees with the commenter and is clarifying use of the term 
CITLD, which encompasses all statistically based methods where the 
system incrementally gathers measurements on an uninterrupted or nearly 
uninterrupted basis to determine a tank's leak status. Currently, there 
are two major groups that fit into this category: CSLD (also referred 
to as continuous automatic tank gauging methods) and continual 
reconciliation. Both groups typically use sensors permanently installed 
in the tank to obtain inventory measurements. They are combined with a 
microprocessor in

[[Page 41610]]

the ATG system or other control console that processes the data. 
Continual reconciliation methods are further distinguished by their 
connection to dispensing meters that allow for automatic recording and 
use of dispensing data in analyzing tanks' leak status. SIR, which we 
describe below, is not a continually operating method that fits into 
the CITLD category.
    This final UST regulation formally recognizes CITLD as a release 
detection method in Sec.  280.43(d). Per Sec.  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 Sec.  
280.45. Another method of release detection is required in the event of 
an inconclusive result. For example, in the event of an inconclusive 
result, UST owners and operators may perform an in-tank static test 
using an ATG system or use another method of release detection.
SIR
    This final UST regulation adds SIR as a release detection method 
and provides performance criteria for its use. SIR must:
     Report a quantitative result with a calculated leak rate;
     Be capable of detecting a leak rate of at least 0.2 gallon 
per hour or a release of 150 gallons within a 30-day period 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 reported results. Based on information in the 
NWGLDE list,\117\ approximately 85 percent of SIR methods listed are 
quantitative-based methods. Many state UST implementing agencies 
already only allow quantitative methods. This final UST regulation only 
allows quantitative SIR as an option for meeting the release detection 
requirement.
---------------------------------------------------------------------------

    \117\ National Work Group On Leak Detection Evaluations' List Of 
Leak Detection Evaluations For Storage Tank Systems: http://www.nwglde.org/.
---------------------------------------------------------------------------

    Consistent with the performance criteria described in the other 
methods option for release detection, this final UST regulation 
maintains the performance standards of a 0.2 gallon per hour release or 
a release of 150 gallons within a 30-day period with a probability of 
detection of 0.95 and a probability of false alarm of 0.05. The 2011 
proposed UST regulation did not include the additional standard of 150 
gallons within a 30-day period for SIR. EPA agrees with the commenter 
who noted the importance of the 150 gallons criteria if SIR methods are 
used for monitoring piping for release detection; as a result, we are 
retaining this performance standard for SIR in the final UST regulation 
because EPA and some other implementing agencies allow UST system 
owners and operators to use SIR for piping release detection.
    Like other release detection methods, SIR must be capable of 
detecting a release of 0.2 gallon per hour or less with a probability 
of detection (Pd) of at least 0.95 and probability of false alarm (Pfa) 
of no more than 0.05. 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 investigated as a suspected 
release.
    One commenter asked EPA to further clarify SIR. The commenter said 
EPA presented language in the 2011 proposed UST regulation that 
confused statistically based release detection methods currently in 
use. EPA agrees and is modifying the description of SIR in this final 
UST regulation at Sec.  280.43(h) to narrow the focus of statistically 
based methods, which fit under this section. SIR encompasses only those 
statistically based methods where inventory data is gathered over a 
period and typically provided to a vendor who analyzes the data to 
determine the leak status of the tank. These methods do not include 
systems that incrementally gather measurements on an uninterrupted or 
nearly uninterrupted basis to determine the tank's leak status 
described in Sec.  280.43(d) under continuous in tank leak detection.
    This final UST regulation addresses these issues associated with 
SIR:
 SIR is not the same as inventory control
    [cir] Historically, users, vendors, and regulators have incorrectly 
associated SIR with inventory control in Sec.  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. Section 280.50(c)(3) allows 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. 
Therefore, any failed SIR result must be investigated as a suspected 
release. Also, in the event of an inconclusive result, UST owners and 
operators must use another method of release detection to determine the 
leak status of the tank.
 Results for release detection, including SIR, are required 
within the 30-day monitoring period
    [cir] EPA considered including a requirement in the final UST 
regulation that UST owners and operators obtain a record of SIR results 
within 30 days. However, this requirement is already covered in the 
release detection requirements. As Sec.  280.41(a)(1) states, ``Tanks . 
. . must be monitored for releases at least every 30 days using one of 
the methods listed in Sec.  280.43(d) through (i) . . .'' In this final 
UST regulation, 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
    [cir] 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,\118\ which says all 
methods used to meet release detection requirements in Sec.  280.41 
must obtain a conclusive result of pass or fail within the 30-day 
monitoring period. All monitoring records must be maintained according 
to Sec.  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 gathered to generate an 
initial report at startup; or when a report is not available for any 
month of

[[Page 41611]]

monitoring. Owners and operators have not performed release detection 
until the release status of the UST system has been conclusively 
determined.
---------------------------------------------------------------------------

    \118\ UST Technical Compendium, question and answer number 
21:http://epa.gov/oust/compend/rd.htm.
---------------------------------------------------------------------------

 Initial SIR report at startup
    [cir] SIR methods need to gather data over a period in order to 
determine whether the tank is leaking. In some cases, implementing 
agencies have addressed significant lag times between when data is 
collected and 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 and 30 days to gather 
sufficient measurements that provide an accurate result. Any method 
that goes beyond a 30-day monitoring period is inconsistent with and 
does not meet the release detection requirement. It is imperative that 
UST owners and operators determine the status of their tanks within the 
established monitoring period to avoid increased risk of releases. 
Therefore, owners and operators must use another release detection 
method at least once every 30 days until a SIR result is obtained. 
After that, owners and operators must have a SIR result at least once 
every 30 days.
 Meeting the 30-day monitoring requirement
    [cir] EPA received several comments regarding the lack of 
timeliness associated with determining whether a leak exists when using 
SIR. In many instances, monitoring results are not produced until the 
next monitoring period or well beyond. These commenters also provided 
several suggestions for EPA to address the lag time between UST owners 
and operators collecting leak detection data and receiving late 
reporting on the leak status of the tank. EPA reiterates its 
established regulatory requirement that tanks must be monitored for 
releases at least once every 30 days.
    [cir] Commenters provided other options for how owners and 
operators can meet the release detection requirement. One possible 
option is for EPA to require owners and operators perform a SIR 
analysis every 15 days using the last 30 days of data. This option 
results in a more frequent analysis of the UST system's leak status. 
EPA agrees this option would allow owners and operators to meet the 
release detection requirement. Another option suggested was for EPA to 
add a requirement that SIR results must be returned to owners within 
seven days of the end of the data collection period; other commenters 
indicated various other times. EPA disagrees with this option because 
it would not meet the requirement to conduct release detection at least 
once every 30 days. Providing additional time for one method to 
determine whether a leak has occurred would be both unfair to UST 
system owners and operators using other release detection methods, as 
well as result in decreased environmental protection. To meet the 
release detection requirement for SIR, owners and operators could 
conduct a more frequent analysis, as one commenter suggested, or send 
data more expeditiously by electronic means. EPA is retaining the 30-
day release detection requirement, which allows owners and operators to 
use whatever method they choose, as long as the method meets 
performance standards. UST system owners and operators can discuss 
changing their methods or data collection procedures with their SIR 
vendors in order to meet EPA's release detection requirement.
Interstitial Monitoring
    The 2011 proposed UST regulation included three methods of 
continuous interstitial monitoring--vacuum, pressure, and liquid-filled 
methods--in Sec.  280.43(g). EPA proposed these methods in conjunction 
with the periodic secondary containment testing requirement. Based on 
comments, EPA removed references to continuous interstitial monitoring 
in this final UST regulation. Because continuous interstitial 
monitoring is not discussed in this final UST regulation, EPA does not 
include language pertaining to continuous vacuum, pressure, or liquid-
filled methods of interstitial monitoring in Sec.  280.43(g). This does 
not impact release detection methods allowed under Sec.  280.43(g).
2. Updates to Codes of Practice Listed in the UST Regulation
    This final UST regulation updates 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. The 1988 UST regulation relied on codes of practice 
developed by nationally recognized associations or independent testing 
laboratories to implement many of the requirements. EPA will continue 
to rely on codes of practice in this final UST regulation.
    EPA reviewed information from more than 25 code making groups on 
more than 200 codes of practice, which have been developed or revised 
since the 1988 UST regulation.\119\ As a result, EPA is:
---------------------------------------------------------------------------

    \119\ E\2\, 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 are 
located in the docket EPA-HQ-UST-2011-0301.

 Updating titles and designations of existing codes of 
practice;
 Adding applicable codes of practice developed after the 1988 
UST regulation was finalized;
 Moving codes of practice that were misplaced in the 1988 UST 
regulation; and
 Removing codes of practice that:
    [cir] Are out of date, no longer available, withdrawn, or 
rescinded;
    [cir] No longer provide any information appropriate to or relevant 
to the final UST regulation where it was referenced; or
    [cir] Are no longer needed.

    For example, EPA listed the Association for Composite Tanks ACT-100 
tank standard in Sec.  280.20(a)(3) of the 1988 UST regulation as a 
code of practice for meeting the clad tank requirement. EPA is removing 
this code of practice from this final UST regulation because both the 
association and code of practice no longer exist.
    In several cases, EPA is moving a code of practice from one section 
of the final UST regulation to another. For example, EPA is moving 
Steel Tank Institute Standard F841, Standard for Dual Wall Underground 
Steel Storage Tanks from Sec.  280.43(g)--interstitial monitoring to 
Sec.  280.20(a)(2), which covers steel tanks. EPA thinks it makes more 
sense for this to be included under the UST design and construction 
standards, rather than as a release detection standard. EPA used 
similar rationale when relocating other codes of practice in this final 
UST regulation.
    As in the preamble to the 1988 UST regulation, this final UST 
regulation does not require use of a specific version or edition of any 
code. The consensus codes are frequently revised and updated. EPA 
recognizes that requiring use of the most recent edition of a code of 
practice would cause undue confusion in the regulated community. For 
example, owners and operators install UST systems according to codes

[[Page 41612]]

of practice current at the time of installation, but may not have 
equipment in the ground that meets codes that are current 10 years 
later. EPA concludes that the industry codes in effect at the date of 
publication of this final UST regulation are protective of human health 
and the environment. Using future editions of codes instead of editions 
now in effect is not required, but is encouraged; updated codes will 
probably provide for newer, more effective technologies and practices. 
Using past codes, which have been replaced by new editions prior to the 
effective date of this final UST regulation, is not allowed because 
some past recommended industry practices may not represent current 
codes of practice or may not adequately cover the regulatory 
requirement.
    Consistent with the preamble to the 1988 UST regulation, this final 
UST regulation interprets the term nationally recognized organization 
to mean a technical or professional organization that has issued 
standards formed by the consensus of its members. The organization 
should consider all relevant viewpoints and interests, including those 
of consumers and future or existing potential industry participants. 
The resulting standards should be widely accepted and based on a broad 
range of technical information, and performance criteria should be 
central elements of the resulting standards. EPA regards the following 
organizations, whose codes of practice are listed in this final UST 
regulation, as examples of nationally recognized organizations:

American Petroleum Institute (API)
American Society for Testing and Materials (ASTM)
Fiberglass Tank and Pipe Institute (FTPI)
National Association of Corrosion Engineers (NACE)
National Fire Protection Association (NFPA)
National Leak Prevention Association (NLPA)
Petroleum Equipment Institute (PEI) Steel Tank Institute (STI) 
Underwriters Laboratory (UL)
EPA received broad support for updating the codes of practice listed in 
the final UST regulation. Several commenters pointed out errors to 
titles or designations in the 2011 proposed UST regulation. This final 
UST regulation corrects these errors.

    EPA received comments on the 2011 proposed UST regulation asking 
that we add or remove several codes of practice. EPA reviewed PEI's 
recommended practice for testing and verification of spill, overfill, 
leak detection, and secondary containment equipment (RP 1200), and in 
this final UST regulation is including it in areas where testing or 
inspecting UST equipment is required. EPA also reviewed and is 
including PEI's recommended practice for the inspection and maintenance 
of UST systems (RP 900) in the walkthrough inspections portion of this 
final UST regulation. EPA is not including the Canadian code for 
installing fiber reinforced plastic linings (ULC/ORD-C58.4-05), because 
this final UST regulation no longer allows owners and operators to 
install internal linings to meet the corrosion protection upgrade. 
Owners may continue using internal linings for other reasons such as 
compatibility or secondary containment; but EPA determined there are no 
appropriate areas in this final UST regulation to list lining codes of 
practice for those purposes. Also, EPA is not including PEI's 
recommended practice for the inspection and maintenance of motor fuel 
dispensing equipment (RP 500), because it is a standard for inspecting 
motor fuel dispensing equipment and Subtitle I of the SWDA does not 
give EPA the authority to regulate aboveground equipment such as motor 
fuel dispensing equipment. Finally, EPA is not including STI's storage 
tank maintenance standard (R-111) as an option for periodic walkthrough 
inspections because the content of the 2011 version of this code of 
practice only focused on water and contaminants in the tank along with 
compatibility. Except for a monthly inspection checklist, this code of 
practice does not describe how to conduct a periodic walkthrough 
inspection. If STI changes this code of practice, implementing agencies 
may determine whether the newer version is adequate for meeting the 
periodic walkthrough inspection requirement in this final UST 
regulation.
    In the 2011 proposed UST regulation, EPA asked for input on whether 
the requirement to follow codes of practice and manufacturer's 
instructions under the installation requirements in Sec.  280.20(d) 
should apply to just tanks and piping (as stated in the 1988 UST 
regulation) or apply to the UST system as a whole. Both the 1988 UST 
regulation and this final UST regulation define UST system as the 
underground storage tank, connected underground piping, underground 
ancillary equipment, and containment system, if any. Commenters 
strongly supported requiring installation of the UST system, rather 
than just tanks and piping, according to a code of practice developed 
by a nationally recognized association or independent testing 
laboratory and according to manufacturer's instructions. For these 
reasons, this final UST regulation replaces tanks and piping with UST 
system in Sec.  280.20(d).
3. Updates To Remove Old Upgrade and Implementation Deadlines
    This final UST regulation removes references to the 1998 deadline 
and old phase in schedules, while continuing to allow testing of 
corrosion protection and release detection. These changes 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. In addition, as of 2010 
implementing agencies have inspected all regulated UST systems at least 
once for compliance with release detection, release prevention, and 
financial responsibility requirements.
    EPA will no longer allow owners and operators to upgrade UST 
systems if they never met the 1998 upgrade requirements, unless the 
implementing agency determines the UST system is acceptable to upgrade. 
Owners and operators must permanently close non-upgraded UST systems 
according to the closure requirements in subpart G. Non-upgraded UST 
systems 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 unprotected metal in contact with soil corrodes. EPA is 
allowing implementing agencies to make case-by-case determinations on 
when to allow upgrades. EPA does not expect implementing agencies to 
allow continued use of tanks 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.
    EPA will continue to allow UST systems with field-constructed tanks 
and airport hydrant systems to be upgraded with spill, overfill, and 
corrosion protection under subpart K of the UST regulation. See section 
C-2 for additional information on upgrading these UST systems.
    To meet the release detection requirement, Sec.  280.41 of the 1988 
UST regulation allowed owners and operators of USTs not upgraded with 
corrosion protection to use a

[[Page 41613]]

combination of monthly inventory control with annual tank tightness 
testing until December 22, 1998. Since owners and operators no longer 
have the option to use inventory control and annual tightness testing, 
EPA is removing this option from this final UST regulation.
    In response to comments received, EPA is removing the definition of 
petroleum marketing firm from subpart H of this final UST regulation. 
EPA only used the term petroleum marketing firm in the compliance dates 
section as it related to when these firms needed to meet the financial 
responsibility requirements. Since the compliance dates for 
conventional UST systems have passed more than a decade ago, the term 
no longer needs to be defined.
4. Editorial Corrections and Technical Amendments
    This final UST regulation includes editorial corrections and 
technical amendments to the 1988 UST regulation. 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, 
this final UST regulation adds technical amendments, which include 
updating the final UST regulation to incorporate statutory changes that 
occurred since the 1988 UST regulation was promulgated and clarifying 
longstanding Agency interpretations and policies. EPA is making the 
following technical amendments in this final UST regulation:
     Sec.  280.10(c)(4)--EPA is revising the Nuclear Regulatory 
Commission citation to be consistent with the Spill Prevention Control 
and Countermeasures requirements in 40 CFR part 112. This final UST 
regulation partially excludes emergency generator systems at nuclear 
power generation facilities licensed by the Nuclear Regulatory 
Commission that are subject to Nuclear Regulatory Commission 
requirements regarding design and quality criteria, including but not 
limited to 10 CFR part 50. EPA originally proposed only deleting 
appendix A from the regulatory citation. However, EPA agrees with 
commenters that using language consistent with the Spill Prevention 
Control and Countermeasures requirements in 40 CFR part 112 provides 
clarity and consistency for owners and operators of emergency generator 
UST systems at nuclear power generation facilities.
     Sec.  280.12--EPA is revising exclusion (ii) of the 
definition of UST to incorporate a revision in section 9001 of the 
Solid Waste Disposal Act.
     This final UST regulation adds a technical amendment to 
Sec.  280.43(b), which codifies longstanding Agency policy adding 
additional flexibility for using manual tank gauging. This change 
updates UST capacity allowances and testing durations when using manual 
tank gauging. Since 1990, EPA allowed these deviations from the 1988 
UST regulation through policy and included them in outreach 
publications.
     The 2011 proposed UST regulation removed the requirement 
for inventory control for the automatic tank gauging release detection 
method in Sec.  280.43(d) because some interpreted the language as 
requiring both inventory control and automatic tank gauging. However, 
EPA agrees with commenters who indicated the language is necessary to 
ensure automatic tank gauging equipment meets inventory control 
performance standards in Sec.  280.43(a). More specifically, EPA is 
keeping the regulatory language to ensure owners and operators continue 
to measure for water as described in the inventory control requirement. 
This final UST regulation departs from the proposal and retains 
language established in the 1988 UST regulation that automatic tank 
gauging equipment also must meet the inventory control requirements. 
This final UST regulation does not require owners and operators to 
perform inventory control in addition to automatic tank gauging.
     This final UST regulation expressly states which new 
operation and maintenance requirements owners and operators do not have 
to meet for UST systems in temporary closure. Owners and operators of 
temporarily closed UST systems that are empty do not have to perform 
the following periodic release detection operation and maintenance 
testing and inspections in subparts C and D: 30 day release detection 
checks, annual sump checks, and annual hand-held release detection 
checks described in the walkthrough inspection section (see section B-
1); testing of containment sumps used for interstitial monitoring 
described in the secondary containment testing section (see section B-
4); and testing of release detection equipment described in the release 
detection equipment testing section (see section B-5). These 
requirements are unnecessary as long as the temporarily closed UST 
system is empty because release detection is not required in the first 
place. In addition, owners and operators of any UST system in temporary 
closure are not required to conduct the following periodic operation 
and maintenance testing and inspections for spill prevention equipment 
and overfill prevention equipment in subpart C: Spill prevention 
equipment testing (see section B-2); overfill prevention equipment 
inspections (see section B-3); or spill prevention equipment checks 
described in walkthrough inspections (see section B-1). Spill and 
overfill testing or inspections are not required for UST systems in 
temporary closure because those systems are not receiving deliveries of 
regulated substances. Finally, as a conforming amendment, this final 
UST regulation adds subpart K to the release detection citation because 
new release detection requirements for field-constructed tanks and 
airport hydrant systems are included in that subpart.
     This final UST regulation amends the definition of the 
term accidental release in Sec.  280.92 so it matches the definition 
described in the preamble to the 1988 UST regulation for the financial 
responsibility requirements (53 FR 43334). EPA intended the definition 
in the preamble to be included in the 1988 UST regulation, but failed 
to include the concept of releases as a result of operating the UST. 
Through this amendment, 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).
     Sec.  280.94(a)(1)--EPA proposed to include the local 
government option citations in this section. However, those options are 
not included in this final UST regulation because they are already 
included in Sec.  280.94(a)(2).
     Sec.  280.97(b)(1) and (2)--EPA added the local government 
options as part of the reference since those options are also viable 
financial responsibility mechanisms.
     To make the local government bond rating test consistent 
with the requirements of the financial test in Sec.  280.94, this final 
UST regulation adds a new subsection to Sec.  280.104.
     To ensure the definition of UST technical standards in 
subpart I, Lender Liability, includes all of the preventative and 
operating requirements in this final UST regulation, EPA revised the 
definition to include subparts J and K as part of the preventative and 
operating requirements under 40 CFR part 280.
     To add clarity about the statement for shipping tickets 
and invoices in appendix III, this final UST regulation revises the 
appendix.
     Finally, the final UST regulation revises sections that 
use the terms operating life or properly closed to be permanently 
closed or when a change-

[[Page 41614]]

in-service occurs; this amendment will clearly indicate when the 
regulated operating life of an UST system ends. This final UST 
regulation does not define an operating life or proper closure. Rather, 
it describes permanent closure and change-in-service.

F. Alternative Options EPA Considered

    In developing this final UST regulation (hereafter the Selected 
Option), EPA considered and evaluated variations of a subset of the 
regulatory requirements using two alternative options (hereafter Option 
1 and Option 2). The table below highlights differences between the 
Selected Option and Options 1 and 2. Some of the regulatory 
requirements do not vary across the options (for example, notification 
of ownership changes is required in all three). As a result, 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 those of the Selected Option.

                                Comparison of Selected Option and Options 1 and 2
----------------------------------------------------------------------------------------------------------------
                                                                        Options
        Regulatory requirement        --------------------------------------------------------------------------
                                               Selected                    1                        2
----------------------------------------------------------------------------------------------------------------
Walkthrough inspections..............  30 days................  30 days (per 2011        Quarterly.
                                                                 proposed UST
                                                                 regulation) *.
Overfill prevention equipment          3 years................  Annual.................  Not required.
 inspections.
Spill prevention equipment tests.....  3 years................  Annual.................  3 years.
Containment sump tests...............  3 years................  Annual.................  Not required.
Elimination of flow restrictors in     Required...............  Required...............  No change from 1988 UST
 vent lines for all new tanks and                                                         regulation.
 when overfill devices are replaced.
Operability checks for release         Annual (plus annual      Annual (per 2011         Annual (plus annual
 detection equipment.                   check of sumps).         proposed UST             check of sumps).
                                                                 regulation) *.
Groundwater and vapor monitoring for   Continue to allow with   5-year phase out (per    No change from 1988 UST
 release detection.                     site assessment.         2011 proposed UST        regulation.
                                                                 regulation) *.
Remove release detection deferral for  Required...............  Required (per 2011       Required.
 emergency generator tanks.                                      proposed UST
                                                                 regulation) *.
Requirements for demonstrating         Required...............  Required (per 2011       No change from 1988 UST
 compatibility for fuels containing                              proposed UST             regulation.
 >E10 and >B20.                                                  regulation) *.
Remove deferrals for airport hydrant   Regulate under           Require airport hydrant  Maintain deferral.
 fuel distribution systems and UST      alternative release      systems and field-
 systems with field-constructed tanks.  detection requirements.  constructed tanks
                                                                 notify implementing
                                                                 agency and report
                                                                 releases (with no
                                                                 other new
                                                                 requirements).
----------------------------------------------------------------------------------------------------------------
* In the 2011 proposed UST regulation, these regulatory changes generally consisted of more or stricter
  requirements than what is in the final UST regulation. For example, the 30-day walkthrough inspections in the
  2011 proposed UST regulation included monthly check of sumps. Please see the 2011 proposed UST regulation for
  details.

    Below we explain Options 1 and 2, as well as our rationale for 
each. (Note that EPA conducted a regulatory impact analysis for all 
three options. The results are discussed in the RIA document titled 
Assessment of the Potential Costs, Benefits, and Other Impacts of the 
Final Revisions to EPA's Underground Storage Tank Regulations, which is 
available in the docket for this action.)
EPA's Rationale for Option 1
    EPA considered keeping walkthrough inspections as described in the 
2011 proposed UST regulation. However, based on concerns from 
commenters regarding the proposed walkthrough inspection requirements, 
EPA decided to revise the components of the walkthrough inspection. See 
section B-1 for details regarding this final UST regulation on 
walkthrough inspections.
    EPA also considered requiring annual inspections of overfill 
prevention equipment, annual spill prevention equipment tests, and 
annual containment sump testing. After reviewing comments, considering 
the benefits of establishing one consistent implementation time frame 
across as many regulatory requirements as possible, as well as 
assessing the cost of requiring annual tests and inspections, EPA is 
requiring owners and operators inspect overfill prevention equipment 
and test spill prevention equipment and containment sumps once every 
three years. This balances the benefits of ensuring properly 
functioning equipment with the potential administrative burden and 
costs imposed on owners and operators.
    When considering operability checks for release detection 
equipment, EPA examined the possibility of keeping the operability 
checks as described in the 2011 proposed UST regulation. However, based 
on comments, EPA decided to revise some components of the operability 
checks. This resulted in allowing owners and operators to perform some 
release detection checks on an annual basis instead of every 30 days. 
See section B-5 for details regarding release detection equipment 
testing.
    EPA also considered maintaining the 2011 proposed option of a five 
year phase out of groundwater and vapor monitoring as permissible 
release detection methods. Based on concerns from states where 
groundwater and vapor monitoring are used frequently by owners and 
operators, EPA is retaining groundwater and vapor monitoring as long as 
owners and operators demonstrate proper installation and performance 
through a site assessment that must be maintained as long as the 
methods are used. See section D-6 for details regarding groundwater and 
vapor monitoring.
    EPA also considered maintaining its 2011 proposed requirements for 
release detection of emergency generator tanks and for demonstrating 
compatibility. However, as discussed in earlier sections (C-1 for 
emergency generator tanks and D-4 for compatibility), EPA is

[[Page 41615]]

revising these requirements in response to comments. For emergency 
generator tanks, we are revising the implementation time frame for 
consistency with other implementation dates. For compatibility, EPA is 
removing the recordkeeping requirement for new installations to make it 
easier for owners and operators to be in compliance. EPA is also adding 
a list of equipment that must demonstrate compatibility with storing 
ethanol blends greater than 10 percent or biodiesel blends greater than 
20 percent, or any other regulated substance identified by the 
implementing agency. This will help owners and operators understand 
which UST equipment must be demonstrated to be compatible.
    Lastly, EPA considered requiring owners and operators of airport 
hydrants systems and field-constructed tanks submit a one-time notice 
of existence in addition to reporting confirmed releases to the 
implementing agency. Owners and operators of these systems would not be 
subject to any additional regulatory requirements under Option 1. After 
weighing the availability of release detection options for these 
systems, the applicability of other requirements in this final UST 
regulation, and the potential human health and environmental impact of 
releases from these systems, EPA is fully regulating these systems. See 
C-2 for EPA's rationale for regulating airport hydrant systems and 
field-constructed tanks.
EPA's Rationale for Option 2
    In comparing costs with benefits of the final regulatory changes, 
EPA weighed different frequencies for walkthrough inspections and 
periodic equipment inspections or tests. EPA assessed quarterly 
walkthrough inspections, and not requiring overfill prevention 
equipment inspections and containment sump testing as ways to reduce 
potential cost impacts on owners and operators. Compared to the 30-day 
requirement, quarterly walkthrough inspections would reduce costs to 
owners and operators. However, EPA thinks a period less frequent than 
30 days for walkthrough inspections would considerably reduce benefits. 
High operator turnover and the frequency of deliveries both contribute 
to the need for 30-day walkthrough inspections. With that in mind, 
today EPA is requiring 30-day walkthrough inspections so owners and 
operators can consistently and routinely verify proper spill prevention 
and release detection performance. This will ensure problems are 
detected before a release occurs.
    EPA also considered not requiring overfill prevention equipment 
inspections and containment sump testing. However, as explained in 
sections B-3, Overfill Prevention Equipment Inspections and B-4, 
Secondary Containment Tests, tank overfills and containment sump areas 
account for a significant amount of releases from UST systems. As a 
result, EPA is requiring overfill prevention equipment inspections and 
containment sump testing (for containment sumps used for interstitial 
monitoring) once every three years. Overfill prevention equipment 
inspections will ensure overfill prevention equipment is operating 
properly. Similarly, containment sump testing will ensure that 
containment sumps used for interstitial monitoring will be liquid 
tight.
    To reduce total compliance costs of this final UST regulation 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 public 
comments, EPA maintains its position that vent line flow restrictors 
present problems for operability and safety reasons. As described in 
section D-1, EPA is eliminating ball float valves as an overfill 
prevention equipment option for all new tanks and when overfill 
prevention equipment is replaced in existing tanks.
    EPA considered maintaining the existing requirements for 
groundwater and vapor monitoring, in particular retaining the two as 
permissible release detection methods with no changes to the 1988 UST 
regulation. However, given the numerous concerns that have arisen over 
the years regarding these two release detection methods, such as 
misapplications and improper designs of monitoring wells, EPA is 
retaining these two release detection methods only if owners and 
operators demonstrate proper installation and performance through a 
site assessment. See section D-6 for details regarding groundwater and 
vapor monitoring.
    EPA also considered only retaining the current requirement for 
owners and operators to use UST systems made of or lined with materials 
that are compatible with the substance stored in the UST system. 
However, EPA understands that the chemical and physical properties of 
ethanol and biodiesel can be more degrading to certain UST materials 
than petroleum alone. As the use of ethanol- and biodiesel-blended 
fuels increases, EPA is concerned that not all UST system equipment or 
components are compatible with these fuels. Therefore, EPA is requiring 
owners and operators demonstrate compatibility of certain UST system 
components when storing ethanol blends greater than 10 percent and 
biodiesel blends greater than 20 percent. Owners and operators can 
demonstrate compatibility of required components by using one of the 
three options described in this final UST regulation. See section D-4 
for details regarding compatibility.
    Finally, EPA considered maintaining deferrals for airport hydrant 
systems and field-constructed tanks. However, as explained above, after 
weighing the availability of release detection options for these 
systems, the applicability of the other requirements in this final UST 
regulation, and the potential human health and environmental impact of 
releases from these systems, EPA is fully regulating these systems. See 
C-2 for EPA's rationale for regulating airport hydrant systems and 
field-constructed tanks.

V. Updates to State Program Approval Requirements

    EPA is making changes to the 1988 SPA regulation (40 CFR part 281) 
to make it consistent with certain Energy Policy Act requirements and 
certain revisions to the 1988 UST regulation (40 CFR part 280). 
Commenters generally supported EPA changing portions of the 1988 SPA 
regulation and making it consistent with revisions to the 1988 UST 
regulation. Commenters supported EPA keeping the general format of the 
1988 SPA regulation and not making the final SPA regulation as explicit 
or prescriptive as this final UST regulation.
    EPA is making these substantive changes to the 1988 SPA regulation.

 Sec.  281.12(b)--adding definitional exceptions for several 
Energy Policy Act definitions
 Sec. Sec.  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 section 9003(i)(2) of 
the Solid Waste Disposal Act
 Sec. Sec.  281.30(a)(1) and 281.33(d)(3)--exclude safe suction 
piping, airport hydrant system piping, and field-constructed tank 
piping from being required to meet the secondary containment and 
interstitial monitoring requirements

[[Page 41616]]

 Sec.  281.30(b)--eliminate flow restrictors for new or 
replaced overfill prevention
 Sec.  281.30(c)--add notification for ownership changes
 Sec. Sec.  281.31 and 281.33(b)--delete upgrading requirements 
and eliminate phase-in schedule; add phase-in schedule for airport 
hydrant fuel distribution systems and UST systems with field-
constructed tanks
 Sec.  281.32(c)--add requirement for states to include 
provisions for demonstrating compatibility with new and innovative 
regulated substances or other regulated substances identified by 
implementing agencies or include other provisions determined by the 
implementing agency to be no less protective of human health and the 
environment than the provisions for demonstrating compatibility
 Sec. Sec.  281.32(e) and (f) and 281.33(a)(3)--add periodic 
testing or inspection of spill and overfill prevention equipment, 
containment sumps used for interstitial monitoring of piping, and 
mechanical and electronic release detection components; and operation 
and maintenance walkthrough inspections, as well as maintaining 
associated records
 Sec.  281.33(c)--limit use of monthly inventory control in 
combination with tank tightness testing conducted every five years for 
the first ten years after the tank is installed or upgraded, if the 
tank was installed prior to a state receiving SPA
 Sec.  281.33(e)--require hazardous substance USTs to only use 
secondary containment with interstitial monitoring
 Sec.  281.34(a)(1)--add interstitial space may have been 
compromised to suspected releases
 Sec.  281.37--eliminate phase-in requirement for financial 
responsibility
 Sec.  281.39--require operator training according to Sec.  
9010 of the Solid Waste Disposal Act
 Sec.  281.41(a)(4)--add authority to prohibit deliveries

    EPA is making these technical changes to the SPA regulation.

 Sec.  281.10--change subpart to part
 Sec. Sec.  281.11(c), 281.20(d), 281.21(a)(2), 281.23, 
281.50(a), and formerly Sec.  281.51--eliminate interim approval
 Sec.  281.12(a)(2)--change Indian lands to Indian country
 Formerly Sec.  281.32(e)--eliminate requirement to maintain 
upgrade records
 Formerly Sec.  281.38--eliminate reserved section for 
financial responsibility for USTs containing hazardous substances
 Move Sec.  281.39 to Sec.  281.38--Lender Liability
 Sec. Sec.  281.50(e) and 281.51(c)(1)--clarify how to provide 
public notice to attract statewide attention
 Sec.  281.51, formerly Sec.  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
 Sec.  281.61--move Sec.  281.60(b) to Sec.  281.61(b)(2)

Background Information

    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 federal 
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 changing the 1988 SPA regulation and making it consistent 
with this final UST regulation. By doing so, EPA will require states to 
adopt requirements similar to the final UST regulation, in order to 
obtain or retain SPA. Commenters supported maintaining the general 
format of the 1988 SPA regulation and EPA is keeping that general 
format. We are not making this final SPA regulation as explicit or 
prescriptive as this final UST regulation. Finally, EPA is making 
technical corrections and adding a deadline for states to apply for 
revised state program approval.

Addressing Energy Policy Act Requirements and 40 CFR Part 280 Changes

How SPA Works
    This final UST regulation primarily impacts the 1988 SPA regulation 
in 40 CFR part 281, subpart C--Criteria for No Less Stringent. As of 
2014, 40 states, including the District of Columbia and Puerto Rico, 
have state program approval and state UST requirements apply in lieu of 
the federal requirements. To ensure these jurisdictions and any other 
states or territories obtaining SPA adopt these 40 CFR part 280 
changes, EPA must update the 1988 SPA regulations in 40 CFR part 281, 
subpart C--Criteria for No Less Stringent. To continue providing states 
with flexibility and not disrupt current state programs, EPA is 
revising the 1988 SPA regulation to make it consistent with, but not 
identical to, the 40 CFR part 280 changes. Instead, EPA is making 
changes to the 1988 SPA regulation in a less prescriptive manner than 
the changes to 40 CFR part 280. Since 1988, this approach has proven a 
successful way to implement the UST program and provide environmental 
protection.
    The 1988 SPA regulation developed no less stringent criteria in the 
form of objectives.\120\ EPA is continuing this format so that, taken 
as a whole, state programs will be no less stringent than the federal 
requirements, even though state programs may deviate slightly from what 
is explicitly required in 40 CFR part 280. For example, Sec.  281.30 
covers the no less stringent requirement for new UST system design, 
construction, and installation; it corresponds to Sec.  280.20 of this 
final UST regulation, but is much less explicit about requirements.
---------------------------------------------------------------------------

    \120\ 53 FR 37216, September 23, 1988.
---------------------------------------------------------------------------

    According to Sec.  281.30 and in order 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, Sec.  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 Sec.  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.
Goal Oriented Changes
    EPA is making 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 meet the goals of 
particular sections of the final SPA regulation. These changes reflect 
certain 40 CFR part 280 changes.

 Sec.  281.30(c)--add notification for ownership changes
 Sec. Sec.  281.31 and 281.33(b)--add a phase-in schedule for 
upgrading previously deferred airport hydrant fuel distribution systems 
and UST systems with field-constructed tanks
 Sec.  281.32(c)--add requirement for states to include 
provisions for demonstrating compatibility with new and innovative 
regulated substances or other regulated substances identified by 
implementing agencies

[[Page 41617]]

or include other provisions determined by the implementing agency to be 
no less protective of human health and the environment than the 
provisions for demonstrating compatibility
 Sec. Sec.  281.32(e) and (f) and 281.33(a)(3)--add periodic 
testing or inspection of spill and overfill prevention equipment, 
containment sumps used for interstitial monitoring of piping, and 
mechanical and electronic release detection components; and operation 
and maintenance walkthrough inspections, as well as maintaining 
associated records

    The ownership change notification in Sec.  280.22 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. However, the SPA regulation change in Sec.  
281.30(c) is much less prescriptive and indicates that states require 
owners and operators to ``. . . notify the implementing state agency 
within a reasonable time frame when assuming ownership of an UST 
system.'' 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 jurisdictions. EPA does not have an 
annual UST registration program, so we specify a time frame in Sec.  
280.22 because we want to know who owns tanks in jurisdictions where we 
are the implementing agency.
    EPA is requiring that previously deferred airport hydrant fuel 
distribution systems and UST systems with field-constructed tanks meet 
specific upgrade requirements in subpart K. This is one way that states 
can achieve compliance with Sec.  281.31, which requires states ensure 
tanks are upgraded to prevent releases due to corrosion, spills, and 
overfills or be permanently closed. EPA concludes 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 thinks it is also 
adequate to upgrade previously deferred systems to this standard.
    Additionally, EPA is requiring airport hydrant systems, field-
constructed tanks, and emergency generator tanks be upgraded within 
three years of the effective date of the state requirements. For states 
which did not defer these systems or already had their requirements in 
place before the effective date of this final SPA regulation, the three 
year requirement does not apply. In the past, EPA experienced issues 
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 had difficulty implementing or obtaining a retroactive 
requirement. EPA understands that states may have given owners and 
operators of UST systems previously deferred by EPA different time 
periods than three years to initially meet their requirements.
    In Sec.  281.32(c), EPA is adding a requirement for states to 
include provisions for demonstrating compatibility with new and 
innovative regulated substances or other regulated substances 
identified by implementing agencies or include other provisions 
determined by the implementing agency to be no less protective of human 
health and the environment than the provisions for demonstrating 
compatibility. EPA is concerned about the compatibility of new and 
innovative fuels with the existing UST system infrastructure. We added 
to Sec.  280.32 methods for demonstrating compatibility of UST systems 
with certain ethanol and biodiesel blends in response to this concern. 
State UST implementing agencies also need to ensure owners and 
operators only store regulated substances compatible with their UST 
systems. Requiring states have provisions in place for storing new and 
innovative regulated substances in order to receive SPA ensures states 
are taking appropriate steps to ensure compatibility of the UST system 
with a rapidly expanding spectrum of traditional and new and innovative 
fuels.
    This final UST regulation adds various UST operation and 
maintenance requirements. In 40 CFR part 280, EPA is requiring specific 
frequencies and procedures for testing or inspecting spill and overfill 
prevention equipment, testing containment sumps used for interstitial 
monitoring of piping, testing release detection equipment, and 
conducting operation and maintenance walkthrough inspections. According 
to Sec.  281.32, states must require these tests or inspections 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. EPA 
thinks this approach allows states that implement 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 updating Sec.  281.32(g) by adding these 
activities to the recordkeeping requirements of SPA.
Energy Policy Act Changes
    In this final SPA regulation, EPA is addressing Energy Policy Act 
requirements more generally than in this final UST regulation; however, 
the Energy Policy Act requirements are slightly different than the goal 
oriented approach discussed above. The Energy Policy Act amends the 
Solid Waste Disposal Act and requires states, which 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 require 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 the Energy Policy 
Act requirements; many states implemented the Energy Policy Act 
requirements according to these guidelines. In order to impose similar 
requirements in Indian country and in states that do not adopt Energy 
Policy Act requirements, EPA is adding secondary containment and 
operator training to these 40 CFR part 280 requirements. However, it is 
not EPA's intent to supersede programs states developed to meet Energy 
Policy Act requirements.
    Several commenters had concerns about the Energy Policy Act 
provisions. Seven commenters wanted to ensure states only have to meet 
Energy Policy Act grant guidelines and do not have to change their 
regulations to mirror the 40 CFR part 280 requirements in order to 
obtain SPA. These commenters were also concerned that EPA requirements 
for secondary containment and operator training could be considered 
more stringent than state requirements that met the grant guidelines. 
EPA agrees that requiring states to alter newly implemented provisions 
could cause unnecessary work for states and UST owners. Therefore, this 
final SPA regulation explicitly addresses the secondary containment, 
manufacturer and installer financial responsibility

[[Page 41618]]

and installer certification, delivery prohibition, and operator 
training requirements that appear in the Energy Policy Act. EPA agrees 
that it is not necessary for states already meeting these Energy Policy 
Act requirements to change their programs in order to receive or retain 
SPA. EPA was unable to incorporate a similar requirement in 40 CFR part 
280, so states will need to obtain SPA in order to ensure there is no 
difference between state and federal requirements with respect to 
Energy Policy Act requirements.
    EPA is adding definitional exceptions in Sec.  281.12(b). This 
final SPA regulation allows states to use definitions associated with 
tank and piping secondary containment and operator training that are 
different than those in 40 CFR part 280 as long as those definitions 
are consistent with definitions described in sections 9003 and 9010 of 
the Solid Waste Disposal Act. This change provides states with 
additional flexibility in defining key terms.
    EPA is adding additional measures to protect groundwater and is 
adding operator training requirements in subpart C (Sec. Sec.  
281.22(d)(3), 281.30(a), 281.33(c)(2), and 281.39). Delivery 
prohibition is in subpart D--Adequate Enforcement of Compliance (Sec.  
281.40(a)). Because delivery prohibition is an enforcement option, EPA 
is requiring states have authority to prohibit deliveries according to 
the Energy Policy Act and EPA's grant guidelines, rather than make this 
a no less stringent requirement.
    EPA is not adding delivery prohibition to 40 CFR part 280 because 
delivery prohibition is primarily an enforcement option 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 this final UST regulation. However, the only way to 
ensure states have that same authority is to require states implement 
delivery prohibition as a prerequisite for SPA, as required in Sec.  
281.40(a).
Specific Changes
    EPA is making the changes listed below to subpart C--Criteria for 
No Less Stringent to reflect changes made in 40 CFR part 280. These 
changes ensure states adopt the changes made in 40 CFR part 280 and are 
able to receive SPA.

 Sec. Sec.  281.30(a)(1) and 281.33(d)(3)--exclude safe suction 
piping, airport hydrant system piping, and field-constructed tank 
piping from being required to meet the secondary containment and 
interstitial monitoring requirements
 Sec.  281.30(b)--eliminate flow restrictors for new or 
replaced overfill prevention
 Sec.  281.31--delete upgrading requirements
 Sec.  281.33(c)--limit use of monthly inventory control in 
combination with tank tightness testing conducted every five years for 
the first ten years after the tank is installed or upgraded, if the 
tank was installed prior to a state receiving SPA
 Sec.  281.33(e)--require hazardous substance USTs to only use 
secondary containment with interstitial monitoring
 Sec.  281.34(a)(1)--add ``. . . interstitial space may have 
been compromised . . .'' to suspected releases
 Sec.  281.37--eliminate phase-in requirement for financial 
responsibility

    In Sec. Sec.  281.30(a)(1) and 281.33(d)(3) EPA is not requiring 
safe suction piping, airport hydrant system piping, and piping 
associated with field-constructed tanks greater than 50,000 gallons in 
capacity to meet the secondary containment and interstitial monitoring 
requirements. Suction piping that meets the requirements of Sec.  
281.33(d)(2)(ii) has characteristics that ensure little, if any, 
regulated substances will be released if a break occurs in the line. 
For additional information see section A-2, Secondary Containment. EPA 
is not requiring secondary containment for piping associated with 
field-constructed tanks greater than 50,000 gallons in capacity and 
airport hydrant system piping due to sloping and corrosion concerns. 
For additional information, see section C-2, Airport Hydrant Fuel 
Distribution Systems and UST Systems with Field-Constructed Tanks.
    In Sec.  281.30(b), EPA is requiring states, which receive SPA, not 
allow installation of flow restrictors (commonly referred to as ball 
floats) in vent lines for overfill prevention for new installations or 
when flow restrictors need to be replaced. The existing goal of Sec.  
281.30(b) is for states to require that UST systems have equipment to 
prevent spills and overfills. In this final UST regulation, 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 deleting the 
1988 UST regulation deadlines in the final SPA regulation. In 
Sec. Sec.  281.31 and 281.33(b), EPA is removing the option for UST 
upgrades, except for USTs deferred in the 1988 UST regulation. In Sec.  
281.37, we are eliminating the financial responsibility phase-in 
schedule. Please note EPA is allowing states to implement UST 
requirements, such as upgrades and operation and maintenance, after the 
deadlines in 40 CFR part 280. EPA is taking this action because 
experience has shown that some states had difficulties implementing a 
retroactive requirement when applying for SPA after a federal deadline 
has passed.
    In Sec.  281.33(c), EPA is allowing monthly inventory control in 
combination with tank tightness testing conducted every five years as a 
release detection method for the first ten years after a tank is 
installed or upgraded, only if a tank was installed prior to a state 
receiving SPA for the 1988 UST regulation. This reflects a change in 40 
CFR part 280 and avoids another problem in the 1988 SPA regulation. 
First, EPA is eliminating this method for new installations. Second, 
EPA is tying the date for eliminating this method to the effective date 
of a state's regulations. EPA concludes it is better to tie deadlines 
in the final SPA regulation to the effective date of states' 
regulations, rather than dictate specific dates for all states. In the 
2011 proposed SPA regulation, we tied the deadlines to the date a state 
submitted its SPA application or revised application. However, in this 
final SPA regulation, we realize tying the deadlines to the effective 
date of a state's regulations is clearer for state regulators as well 
as owners and operators.
    Several commenters were concerned with how release detection 
requirements were expressed in 40 CFR part 281. One commenter was 
concerned that the term monthly in Sec.  281.33(c)(1) is not as 
stringent as the 40 CFR part 280 requirement of completing release 
detection every 30 days. This commenter wanted EPA to amend the 40 CFR 
part 281 language so it matches the 30 day wording in 40 CFR part 280. 
EPA is maintaining the term monthly in 40 CFR part 281. EPA agrees 
there is variation between the 30 day time frame in 40 CFR part 280 and 
monthly in 40 CFR part 281. For states receiving SPA, the difference 
should result in a variation of only a few days, and therefore need not 
be changed. It is EPA's position that release detection monitoring 
should be conducted on a consistent and frequently occurring basis. EPA 
chose the 30 day period in 40 CFR part 280 to represent an average 
calendar month.

[[Page 41619]]

    In this final SPA regulation, EPA is requiring states, which wish 
to receive SPA, no longer allow installation of non-secondarily 
contained hazardous substance UST systems. This is consistent with 
EPA's change in Sec.  280.42(e); an equivalent and specific change in 
the final SPA regulation is the only way to ensure states adopt it. For 
consistency with changes in this final UST regulation and to ensure 
states wishing to receive SPA adopt this change, in Sec.  281.34(a)(1), 
EPA is adding ``. . . interstitial space may have been compromised . . 
.'' to suspected release conditions.
    One commenter expressed concern with the release detection language 
in Sec.  280.41(b)(2)(ii), which indicates EPA intends to exempt from 
release detection requirements suction piping that meets the condition 
of paragraphs (b)(1)(ii)(A) through (E). However Sec.  281.33(d)(3) 
indicates that in order to be considered no less stringent, states must 
require new or replaced piping use interstitial monitoring with 
secondary containment. EPA agrees with the commenter that we need to 
modify Sec.  281.33(d)(3) to incorporate the concepts of Sec.  
280.41(b)(2)(ii). In the final SPA regulation, EPA is modifying Sec.  
281.33(d)(3) to indicate that the requirement is applicable to all 
pressurized piping and suction piping that does not meet standards in 
Sec.  281.33(d)(2)(ii).
    One commenter said that it may be very difficult to achieve 
compliance with release detection requirements for emergency power 
generator USTs within one year. This commenter suggested that EPA 
reword Sec.  281.33(b)(3) to give owners at least three years from the 
effective date of the final SPA regulation. EPA agrees with the 
commenter and is extending the date of compliance for this requirement 
to three years as we are in this final UST regulation; this approach 
corresponds with EPA's goal of aligning dates of compliance to the 
extent possible.

Addressing SPA Revision Process

    EPA is adding a requirement for approved states to submit a revised 
application within three years of final SPA regulation changes that 
require a program revision under Sec.  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 these 
significant changes, EPA thinks it is necessary to develop a time frame 
which will ensure approved states meet final SPA regulation changes in 
a reasonable time. EPA's language in Sec.  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, these 
changes to subpart C--Criteria for No Less Stringent will require state 
program revision.
    Commenters disagreed on the appropriate time frame for states to 
submit their SPA applications. Some said three years was appropriate, 
while others preferred a different time frame. EPA maintains that three 
years is adequate for most states to re-apply for SPA. One commenter 
expressed concern about what will happen to a state's SPA status if it 
does not re-apply within the required time frame. 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 work with 
states which have not revised their programs 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 revised 
applications. EPA will consider these factors before initiating state 
program approval withdrawal. One commenter was concerned about the cost 
to states of revising and reapplying for SPA. It is important for 
states to reapply for SPA to ensure they make appropriate changes to 
their programs.

Additional Changes to SPA Regulation

    EPA is making these additional changes; they are not a direct 
result of these 40 CFR part 280 changes. Rather, the majority are 
corrections to the 1988 SPA regulation.

 Sec.  281.10--change subpart to part
 Sec. Sec.  281.11(c), 281.20(d), 281.21(a)(2), 281.23, and 
formerly Sec.  281.51--eliminate interim approval
 Sec.  281.12(a)(2)--change Indian lands to Indian country
 Sec.  281.32(e)--eliminate requirement to maintain upgrade 
records
 Formerly Sec.  281.38--eliminate reserved section for 
financial responsibility for USTs containing hazardous substances
 Move Sec.  281.39 to Sec.  281.38--Lender Liability
 Sec. Sec.  281.50(e) and 281.51(c)(1)--clarify how to provide 
public notice to attract statewide attention
 Sec.  281.61--move Sec.  281.60(b) to Sec.  281.61(b)(2)

    The 1988 SPA regulation incorrectly uses the term subpart in Sec.  
280.10 and, therefore, EPA is correctly changing this to part. EPA has 
been using the term Indian country instead of Indian lands for years. 
We are now incorporating this term in this final SPA regulation; this 
does not alter the meaning. EPA is removing the reserved financial 
responsibility for USTs containing hazardous substances section 
(formerly Sec.  281.38); moving the lender liability section from Sec.  
281.39 to Sec.  281.38; and including the new operator training section 
in Sec.  281.39. Because operator training needs to be in subpart C, 
which has no section numbers available, 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 deleting the interim SPA approval language in Sec. Sec.  
281.11(c) and 281.51. In more than 20 years of the UST program, no 
state applied for interim approval; it is more beneficial to receive 
full approval all at once, rather than in steps. Also, because 40 
states, including the District of Columbia and Puerto Rico, have SPA as 
of 2014, EPA thinks interim SPA approval is unnecessary at this time.
    EPA is eliminating the requirement to maintain upgrade records for 
the operational life of an UST facility. This requirement in Sec.  
281.32(e) of the 1988 SPA regulation does not exist in 40 CFR part 280. 
In addition, except for airport hydrant systems and field-constructed 
tanks, EPA is no longer allowing upgrades.
    EPA is clarifying how to provide public notice to attract statewide 
attention in Sec. Sec.  281.50(e) and 281.51(c)(1). In today's digital 
age, it is unnecessary to require publication in a state's newspapers. 
Each state can determine the most appropriate methods for public notice 
and statewide attention.
    EPA is also moving Sec.  281.60(b) to Sec.  281.61(b). This 
paragraph explains the procedure EPA will follow to withdraw approval 
after the conclusion of the proceeding to withdraw approval. EPA thinks 
this paragraph is better suited for Sec.  281.61, which explains the 
procedures for withdrawing approval, as opposed to Sec.  281.60, which 
explains the criteria for withdrawal.

VI. Overview of Estimated Costs and Benefits

    EPA prepared an analysis of the potential incremental costs and 
benefits associated with this final UST regulation. This analysis is 
contained in the regulatory impact analysis document titled Assessment 
of the Potential Costs, Benefits, and Other Impacts of the Final 
Revisions to EPA's

[[Page 41620]]

Underground Storage Tank Regulations, which is available in the docket 
for this action. The RIA estimated regulatory implementation and 
compliance costs, as well as benefits for the three regulatory options 
described in section IV, subsection F. In the RIA, EPA estimated 
regulatory compliance costs on an annualized basis for the three 
options: $160 million (Selected Option), $290 million (Option 1), and 
$70 million (Option 2). Separately, the analysis assessed the potential 
benefits of the final UST regulation. As discussed in the RIA, a 
substantial portion of the beneficial impacts associated with the final 
UST regulation are avoided cleanup costs as a result of preventing 
releases and reducing the severity of releases. This action is expected 
to have annual cost savings related to avoided costs of $310 million 
(range: $120-$530 million) per year under the Selected Option, $450 
million (range: $210-$670 million) per year under Option 1, and $230 
million (range: $45-$420 million) per year under Option 2. Due to data 
and resource constraints, EPA was unable to quantify some of the final 
UST regulation's benefits, including avoidance of human health risks, 
ecological benefits, and mitigation of acute exposure events and large-
scale releases, such as those from airport hydrant systems and field-
constructed tanks. EPA was also unable to place a monetary value on the 
groundwater protected by the final UST regulation, but estimates that 
this final UST regulation could potentially protect 50 billion to 240 
billion gallons of groundwater each year.

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 are documented in the docket for this action. 
Also, as part of EO 13563, EPA encourages owners and operators to 
maintain records electronically which simplifies compliance and 
recordkeeping by using 21st century technology tools.\121\
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    \121\ Executive Order 13563, Improving Regulation and Regulatory 
Review, Section 3, http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    The information collection requirements (ICR) in this rule will be 
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 requirements are not enforceable until OMB 
approves them.
    The proposed rule ICR was submitted to OMB on 11/18/2011 under OMB 
number 2050-0068, ICR number 1360.11. On 1/30/2012 OMB released a 
Notice of Action of comment filed on proposed rule and continue. They 
also issued this comment: ``Terms of the previous clearance remain in 
effect. OMB is withholding approval at this time. Prior to publication 
of the final rule, the agency should provide a summary of any comments 
related to the information collection and their response, including any 
changes made to the ICR as a result of comments. In addition, the 
agency must enter the correct burden estimates. This action has no 
effect on any current approvals.'' The final rule ICR will be submitted 
to OMB under a new ICR OMB control number.
    This action contains mandatory information collection requirements. 
The labor burden and associated costs for these requirements are 
estimated in the ICR supporting statement for this final action. The 
supporting statement identifies and estimates the burden for each of 
the changes to the regulation that include recordkeeping or reporting 
requirements. 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; regulating certain UST systems deferred 
in the 1988 UST regulation; 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 RIA for 
this action, but using the burden estimations for ICRs, the ICR 
supporting statement estimates an average annual labor hour burden of 
344,000 hours and $12 million for the final UST regulation. One 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 211,154 
facilities and 56 states and territories. Burden is defined at 5 CFR 
1320.3(b).
    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 are listed in 40 CFR part 9. When this ICR is approved by 
OMB, the agency will publish a technical amendment to 40 CFR part 9 in 
the Federal Register to display the OMB control number for the approved 
information collection requirements contained in this final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any regulation subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute, unless the agency certifies that 
the regulation 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 this final UST regulation 
on small entities, a small entity is defined as: (1) A small business 
as defined by the Small Business Administration's 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 this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities directly regulated by this final rule are small businesses and 
small governmental jurisdictions. We have determined that less than 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 will be impacted at 1 percent or 3 
percent of revenues. This certification is based on the small entities 
analysis contained in the RIA for this final rule.

[[Page 41621]]

    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless 
sought to reduce the impact of this rule on small entities. EPA 
conducted extensive outreach to determine how to change the 1988 UST 
regulation. EPA worked with representatives of owners and operators and 
reached out specifically to small businesses. In addition, EPA limited 
changes that would have required major retrofits to UST systems, since 
this would place a high financial burden on small businesses. Finally, 
EPA provided numerous options for compliance in order to provide as 
much flexibility as possible for small entities. EPA also aligned 
compliance dates to facilitate owner and operator compliance.

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 state, local, and tribal governments, in the 
aggregate, or the private sector in any one year. Accordingly, EPA 
prepared under section 202 of the UMRA a written statement which is 
summarized below.
    As estimated in the RIA, on an annualized basis, the total 
estimated regulatory compliance costs for the three options in this 
final action are $160 million (Selected Option), $290 million (Option 
1), and $70 million (Option 2). Of this amount, annualized costs to 
state and local governments total $6.8 million under the Selected 
Option, $14 million under Option 1, and $3.6 million under Option 2. 
These costs consist of estimated regulatory compliance costs for state 
and local governments that currently own or operate UST systems and 
annualized costs of $120,000 for states to implement the final UST 
regulation. EPA estimates total annualized costs to owners and 
operators of tribally-owned UST systems are $0.67 million under the 
Selected Option. The estimated annualized cost to the private sector is 
approximately $130 million under the Selected Option, $270 million 
under Option 1, and $67 million under Option 2. While this final UST 
regulation may result in expenditures of $100 million or more for the 
private sector, thereby triggering section 202 of the UMRA, this final 
UST regulation is not subject to the requirements of section 204 of 
UMRA because EPA does not think 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. This final UST regulation 
identifies the regulatory options EPA considered. The RIA estimates the 
annual cost across the three considered options may range between $70 
million and $290 million. Section 205 of the UMRA requires federal 
agencies to select the least costly or most cost-effective regulatory 
alternative unless EPA publishes with the final regulation an 
explanation of why such alternative was not adopted. As discussed 
earlier in the preamble, EPA considered and evaluated variations of a 
subset of the regulatory requirements using two alternative options 
(Options 1 and 2). Despite Option 2's lower costs, EPA chose the 
Selected Option because it provides for greater protection of human 
health and the environment and better addresses stakeholder concerns.
    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.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on states, the relationship between the 
federal government and states, or the distribution of power and 
responsibilities among various levels of government, as specified in EO 
13132. Under this final action, 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, Executive Order 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 solicited comment on the proposed action 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Subject to 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 money 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 has concluded that this action will have tribal implications to 
the extent that tribally-owned entities with UST systems in Indian 
country will be affected. However, it will neither impose substantial 
direct compliance costs on tribal governments, nor preempt tribal law. 
EPA estimated total annualized costs for tribally-owned UST systems in 
Indian country to be $0.67 million.
    EPA consulted with tribal officials early in the process of 
developing this regulation to permit them to have meaningful and timely 
input to its development. EPA consulted 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 in developing and implementing an UST program strategy in Indian 
country which would supplement the 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 in this final UST regulation is 
to establish in Indian country federal requirements similar to the 
Energy Policy Act provisions; this is an important step in achieving 
more consistent program results in release prevention. Both EPA and 
tribes recognize the importance of ensuring parity in program 
implementation between states and in Indian country.
    In addition to early consultation with tribes, EPA also reached out 
to tribes as we started the official rulemaking process and while 
developing the 2011 proposed UST regulation. EPA sent letters to 
leaders of over 500 tribes, as well as to tribal regulatory staff, 
inviting their participation in developing the 2011 proposed UST 
regulation. EPA also held conference calls for tribes to provide input. 
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 determined that this final UST regulation is needed to ensure 
parity between UST systems in states and in Indian country. This final 
UST regulation is also needed to ensure

[[Page 41622]]

equipment is both installed and working properly, which will protect 
the environment from potential releases.
    As required by section 7(a), EPA's Tribal Consultation Official 
certified that the requirements of the Executive Order have been met in 
a meaningful and timely manner. EPA included a copy of the 
certification in the docket for this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because the Agency does not think the environmental health risks 
or safety risks addressed by this action present a disproportionate 
risk to children. EPA's risk assessment for this action 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. They are:
     Ingestion of chemicals in groundwater that have migrated 
from the source area to residential drinking water wells;
     Inhalation of volatile chemicals when showering with 
contaminated groundwater;
     Dermal contact with chemicals while bathing or showering 
with contaminated groundwater; and
     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 more 
sensitive receptors for cancer effects compared to children, 
particularly those under age 5 who are assumed to take more baths and 
fewer showers.\122\
---------------------------------------------------------------------------

    \122\ United 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.
---------------------------------------------------------------------------

    While the screening level risk assessment is limited in that it 
only examines benzene impacts, the final UST regulation will likely 
reduce other contaminant exposures to children in a similar pattern and 
will 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 5 years of 
age are slightly less likely to be found in the vicinity of UST 
facilities. This suggests that the impacts of this action will not have 
a disproportionate impact on children's health. Moreover, because all 
regulatory options in this action will increase regulatory stringency 
and reduce the number and size of releases, EPA does not expect this 
action to have any disproportionate adverse impact on children.

H. Executive Order 13211: Actions Concerning Regulations 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 this final UST regulation will have on 
energy supply, distribution, and use.
    This final UST regulation consists of additional regulatory 
requirements that apply to the owners and operators of underground 
storage tanks. To the extent that the final UST 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 this final 
UST regulation to have a significant adverse impact on energy supply or 
distribution.
    The additional regulatory requirements contained in this final UST 
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 final UST regulation can pass through 
their increased compliance costs, energy use may be affected via higher 
energy prices caused by the final UST regulation. However, we do not 
expect a significant change in retail gasoline prices to result from 
this final UST regulation for the following reasons:
     Economic analyses of retail fuel prices 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
     Retail motor fuel stations often have associated stores 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, this final UST regulation will 
represent only a very small fraction of motor fuel prices, even if 
fully passed through to consumers. According to the Bureau of 
Transportation Statistics, the United States consumed approximately 169 
billion gallons of motor fuel (including gasoline and diesel) in 2011 
at an average price of $3.73.\123\ This implies that consumers spent 
$629 billion in 2012 on motor fuel. The overall cost of the final UST 
regulation is approximately $160 million, less than 0.1 percent of the 
amount spent by end users on motor fuel in 2012. In comparison, an 
increase of 1 cent in the average price of motor fuel in 2012 would 
have increased the total cost to consumers by approximately $1.7 
billion. Given these circumstances, this final UST regulation should 
not measurably impact retail motor fuel prices. As a result, EPA does 
not expect this final UST regulation to have a significant adverse 
impact on energy prices or use.
---------------------------------------------------------------------------

    \123\ 2011 is the latest year data available from Bureau of 
Transportation Statistics for gallons of motor fuel consumed, as 
reported by: U.S. Department of Transportation, Research and 
Innovative Technology Administration, Bureau of Transportation 
Statistics. Accessed at: http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_04_09.html. The 2012 
prices per gallon for all grades of retail motor gasoline and No. 2 
diesel fuel (all concentrations of sulfur) were $3.63 and $3.97, 
respectively, as reported by: U.S. Energy Information 
Administration. Short-Term Energy Outlook--Real and Nominal Energy 
Prices for 2012. Accessed at: http://www.eia.gov/forecasts/steo/realprices/. We weight these prices according to prime supplier 
sales volumes in 2012 published by the Energy Information 
Administration, which summed to 347,234.5 thousands of gallons per 
day for gasoline and 143,270.6 thousands of gallons per day for all 
grades of diesel fuel (U.S. Energy Information Administration. 
Petroleum & Other Liquids. Prime Supplier Sales Volumes. Accessed 
at: http://www.eia.gov/dnav/pet/pet_cons_prim_dcu_nus_a.htm.
---------------------------------------------------------------------------

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

[[Page 41623]]

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 EPA decides not to use 
available and applicable voluntary consensus standards.
    This action uses technical standards. EPA has decided to use 
voluntary consensus standards, called codes of practice, described in 
section E-2. These codes of practice meet the objectives of this action 
by establishing criteria for the design, construction, and maintenance 
of underground storage tanks.

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.
    EPA has determined that this action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population.
    To inform us about the socioeconomic characteristics of communities 
potentially affected by this final UST regulation, EPA conducted a 
screening analysis under the 2011 proposed UST regulation to examine 
whether there is a statistically significant disparity between 
socioeconomic characteristics of populations located near UST 
facilities and those that are not.\124\ 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 final UST regulation 
would increase regulatory stringency and reduce the number and size of 
releases, EPA does not anticipate the final UST regulation will have 
any disproportionately high and adverse human health or environmental 
effects on these minority or low-income communities or any community.
---------------------------------------------------------------------------

    \124\ Note 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.
---------------------------------------------------------------------------

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule is effective September 14, 2015.

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: June 19, 2015.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, parts 280 and 281 of title 
40, chapter I of the Code of Federal Regulations are amended as 
follows:

0
1. Revise part 280 to read as follows:

PART 280--TECHNICAL STANDARDS AND CORRECTIVE ACTION REQUIREMENTS 
FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS (UST)

Subpart A--Program Scope and Installation Requirements for Partially 
Excluded UST Systems
Sec.
280.10 Applicability.
280.11 Installation requirements for partially excluded UST systems.
280.12 Definitions.
Subpart B--UST Systems: Design, Construction, Installation and 
Notification
280.20 Performance standards for new UST systems.
280.21 Upgrading of existing UST systems.
280.22 Notification requirements.
Subpart C--General Operating Requirements
280.30 Spill and overfill control.
280.31 Operation and maintenance of corrosion protection.
280.32 Compatibility.
280.33 Repairs allowed.
280.34 Reporting and recordkeeping.
280.35 Periodic testing of spill prevention equipment and 
containment sumps used for interstitial monitoring of piping and 
periodic inspection of overfill prevention equipment.
280.36 Periodic operation and maintenance walkthrough inspections.
Subpart D--Release Detection
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.
Subpart E--Release Reporting, Investigation, and Confirmation
280.50 Reporting of suspected releases.
280.51 Investigation due to off-site impacts.
280.52 Release investigation and confirmation steps.
280.53 Reporting and cleanup of spills and overfills.
Subpart F--Release Response and Corrective Action for UST Systems 
Containing Petroleum or Hazardous Substances
280.60 General.
280.61 Initial response.
280.62 Initial abatement measures and site check.
280.63 Initial site characterization.
280.64 Free product removal.
280.65 Investigations for soil and groundwater cleanup.
280.66 Corrective action plan.
280.67 Public participation.

[[Page 41624]]

Subpart G--Out-of-Service UST Systems and Closure
280.70 Temporary closure.
280.71 Permanent closure and changes-in-service.
280.72 Assessing the site at closure or change-in-service.
280.73 Applicability to previously closed UST systems.
280.74 Closure records.
Subpart H--Financial Responsibility
280.90 Applicability.
280.91 Compliance dates.
280.92 Definition of terms.
280.93 Amount and scope of required financial responsibility.
280.94 Allowable mechanisms and combinations of mechanisms.
280.95 Financial test of self-insurance.
280.96 Guarantee.
280.97 Insurance and risk retention group coverage.
280.98 Surety bond.
280.99 Letter of credit.
280.100 Use of state-required mechanism.
280.101 State fund or other state assurance.
280.102 Trust fund.
280.103 Standby trust fund.
280.104 Local government bond rating test.
280.105 Local government financial test.
280.106 Local government guarantee.
280.107 Local government fund.
280.108 Substitution of financial assurance mechanisms by owner or 
operator.
280.109 Cancellation or nonrenewal by a provider of financial 
assurance.
280.110 Reporting by owner or operator.
280.111 Recordkeeping.
280.112 Drawing on financial assurance mechanisms.
280.113 Release from the requirements.
280.114 Bankruptcy or other incapacity of owner or operator or 
provider of financial assurance.
280.115 Replenishment of guarantees, letters of credit, or surety 
bonds.
280.116 Suspension of enforcement. [Reserved]
Subpart I--Lender Liability
280.200 Definitions.
280.210 Participation in management.
280.220 Ownership of an underground storage tank or underground 
storage tank system or facility or property on which an underground 
storage tank or underground storage tank system is located.
280.230 Operating an underground storage tank or underground storage 
tank system.
Subpart J--Operator Training
280.240 General requirement for all UST systems.
280.241 Designation of Class A, B, and C operators.
280.242 Requirements for operator training.
280.243 Timing of operator training.
280.244 Retraining.
280.245 Documentation.
Subpart K--UST Systems with Field-Constructed Tanks and Airport Hydrant 
Fuel Distribution Systems
280.250 Definitions.
280.251 General requirements.
280.252 Additions, exceptions, and alternatives for UST systems with 
field-constructed tanks and airport hydrant systems.
Appendix I to Part 280--Notification for Underground Storage Tanks 
(Form)
Appendix II to Part 280--Notification of Ownership Change for 
Underground Storage Tanks (Form)
Appendix III to Part 280--Statement for Shipping Tickets and 
Invoices

    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).

Subpart A--Program Scope and Installation Requirements for 
Partially Excluded UST Systems

Sec.  280.10  Applicability.

    (a) The requirements of this part apply to all owners and operators 
of an UST system as defined in Sec.  280.12 except as otherwise 
provided in paragraphs (b) and (c) of this section.
    (1) Previously deferred UST systems. Airport hydrant fuel 
distribution systems, UST systems with field-constructed tanks, and UST 
systems that store fuel solely for use by emergency power generators 
must meet the requirements of this part as follows:
    (i) Airport hydrant fuel distribution systems and UST systems with 
field-constructed tanks must meet the requirements in subpart K of this 
part.
    (ii) UST systems that store fuel solely for use by emergency power 
generators installed on or before October 13, 2015 must meet the 
subpart D requirements on or before October 13, 2018.
    (iii) UST systems that store fuel solely for use by emergency power 
generators installed after October 13, 2015 must meet all applicable 
requirements of this part at installation.
    (2) Any UST system listed in paragraph (c) of this section must 
meet the requirements of Sec.  280.11.
    (b) Exclusions. 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) Partial Exclusions. Subparts B, C, D, E, G, J, and K of this 
part do not apply to:
    (1) Wastewater treatment tank systems not covered under paragraph 
(b)(2) of this section;
    (2) Aboveground storage tanks associated with:
    (i) Airport hydrant fuel distribution systems regulated under 
subpart K of this part; and
    (ii) UST systems with field-constructed tanks regulated under 
subpart K of this part;
    (3) Any UST systems containing radioactive material that are 
regulated under the Atomic Energy Act of 1954 (42 U.S.C. 2011 and 
following); and
    (4) Any UST system that is part of an emergency generator system at 
nuclear power generation facilities licensed by the Nuclear Regulatory 
Commission and subject to Nuclear Regulatory Commission requirements 
regarding design and quality criteria, including but not limited to 10 
CFR part 50.

Sec.  280.11  Installation requirements for partially excluded UST 
systems.

    (a) Owners and operators must install an UST system listed in Sec.  
280.10(c)(1), (3), or (4) storing regulated substances (whether of 
single or double wall construction) that meets the following 
requirements:
    (1) Will prevent releases due to corrosion or structural failure 
for the operational life of the UST system;
    (2) Is cathodically protected against corrosion, constructed of 
non-corrodible material, steel clad with a non-corrodible material, or 
designed in a manner to prevent the release or threatened release of 
any stored substance; and
    (3) Is constructed or lined with material that is compatible with 
the stored substance.
    (b) Notwithstanding paragraph (a) of this section, an UST system 
without corrosion protection may be 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. Owners 
and operators must maintain records that demonstrate compliance with 
the requirements of this paragraph for the remaining life of the tank.

    Note to paragraphs (a) and (b).  The following codes of practice 
may be used as guidance for complying with this section:
    (A) NACE International Standard Practice SP 0285, ``External 
Corrosion Control of

[[Page 41625]]

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) 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 Storage and Dispensing 
Systems''.

Sec.  280.12  Definitions.

    Aboveground release means any release to the surface of the land or 
to surface water. This includes, but is not limited to, releases from 
the aboveground portion of an UST system and aboveground releases 
associated with overfills and transfer operations as the regulated 
substance moves to or from an UST system.
    Ancillary equipment means any devices including, but not limited 
to, such devices as piping, fittings, flanges, valves, and pumps used 
to distribute, meter, or control the flow of regulated substances to 
and from an UST.
    Belowground release means any release to the subsurface of the land 
and to groundwater. This includes, but is not limited to, releases from 
the belowground portions of an underground storage tank system and 
belowground releases associated with overfills and transfer operations 
as the regulated substance moves to or from an underground storage 
tank.
    Beneath the surface of the ground means beneath the ground surface 
or otherwise covered with earthen materials.
    Cathodic protection is a technique to prevent corrosion of a metal 
surface by making that surface the cathode of an electrochemical cell. 
For example, a tank system can be cathodically protected through the 
application of either galvanic anodes or impressed current.
    Cathodic protection tester means a person who can demonstrate an 
understanding of the principles and measurements of all common types of 
cathodic protection systems as applied to buried or submerged metal 
piping and tank systems. At a minimum, such persons must have education 
and experience in soil resistivity, stray current, structure-to-soil 
potential, and component electrical isolation measurements of buried 
metal piping and tank systems.
    CERCLA means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended.
    Class A operator means the individual who has primary 
responsibility to operate and maintain the UST system in accordance 
with 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 means the individual who has day-to-day 
responsibility for implementing applicable regulatory requirements 
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 individual 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.
    Compatible means the ability of two or more substances to maintain 
their respective physical and chemical properties upon contact with one 
another for the design life of the tank system under conditions likely 
to be encountered in the UST.
    Connected piping means all underground piping including valves, 
elbows, joints, flanges, and flexible connectors attached to a tank 
system through which regulated substances flow. For the purpose of 
determining how much piping is connected to any individual UST system, 
the piping that joins two UST systems should be allocated equally 
between them.
    Consumptive use with respect to heating oil means consumed on the 
premises.
    Containment Sump means a liquid-tight container that protects the 
environment by containing leaks and spills of regulated substances from 
piping, dispensers, pumps and related components in the containment 
area. Containment sumps may be single walled or secondarily contained 
and located at the top of tank (tank top or submersible turbine pump 
sump), underneath the dispenser (under-dispenser containment sump), or 
at other points in the piping run (transition or intermediate sump).
    Corrosion expert means a person who, by reason of thorough 
knowledge of the physical sciences and the principles of engineering 
and mathematics acquired by a professional education and related 
practical experience, is qualified to engage in the practice of 
corrosion control on buried or submerged metal piping systems and metal 
tanks. Such a person must be accredited or certified as being qualified 
by the National Association of Corrosion Engineers or be a registered 
professional engineer who has certification or licensing that includes 
education and experience in corrosion control of buried or submerged 
metal piping systems and metal tanks.
    Dielectric material means a material that does not conduct direct 
electrical current. Dielectric coatings are used to electrically 
isolate UST systems from the surrounding soils. Dielectric bushings are 
used to electrically isolate portions of the UST system (e.g., tank 
from piping).
    Dispenser means equipment located aboveground that dispenses 
regulated substances from the UST system.
    Dispenser system means the dispenser and the equipment necessary to 
connect the dispenser to the underground storage tank system.
    Electrical equipment means underground equipment that contains 
dielectric fluid that is necessary for the operation of equipment such 
as transformers and buried electrical cable.
    Excavation zone means the volume containing the tank system and 
backfill material bounded by the ground surface, walls, and floor of 
the pit and trenches into which the UST system is placed at the time of 
installation.
    Existing tank system means a tank system used to contain an 
accumulation of regulated substances or for which installation has 
commenced on or before December 22, 1988. Installation is considered to 
have commenced if:
    (1) The owner or operator has obtained all federal, state, and 
local approvals or permits necessary to begin physical construction of 
the site or installation of the tank system; and if,
    (2)(i) Either a continuous on-site physical construction or 
installation program has begun; or,
    (ii) The owner or operator has entered into contractual 
obligations--which cannot be cancelled or modified without substantial 
loss--for physical construction at the site or installation of the tank 
system to be completed within a reasonable time.
    Farm tank is a tank located on a tract of land devoted to the 
production of crops or raising animals, including fish, and associated 
residences and improvements. A farm tank must be located on the farm 
property. Farm includes fish hatcheries, rangeland and nurseries with 
growing operations.
    Flow-through process tank is a tank that forms an integral part of 
a

[[Page 41626]]

production process through which there is a steady, variable, 
recurring, or intermittent flow of materials during the operation of 
the process. Flow-through process tanks do not include tanks used for 
the storage of materials prior to their introduction into the 
production process or for the storage of finished products or by-
products from the production process.
    Free product refers to a regulated substance that is present as a 
nonaqueous phase liquid (e.g., liquid not dissolved in water).
    Gathering lines means any pipeline, equipment, facility, or 
building used in the transportation of oil or gas during oil or gas 
production or gathering operations.
    Hazardous substance UST system means an underground storage tank 
system that contains a hazardous substance defined in section 101(14) 
of the Comprehensive Environmental Response, Compensation and Liability 
Act of 1980 (but not including any substance regulated as a hazardous 
waste under subtitle C) or any mixture of such substances and 
petroleum, and which is not a petroleum UST system.
    Heating oil means petroleum that is No. 1, No. 2, No. 4--light, No. 
4--heavy, No. 5--light, No. 5--heavy, and No. 6 technical grades of 
fuel oil; other residual fuel oils (including Navy Special Fuel Oil and 
Bunker C); and other fuels when used as substitutes for one of these 
fuel oils. Heating oil is typically used in the operation of heating 
equipment, boilers, or furnaces.
    Hydraulic lift tank means a tank holding hydraulic fluid for a 
closed-loop mechanical system that uses compressed air or hydraulic 
fluid to operate lifts, elevators, and other similar devices.
    Implementing agency means EPA, or, in the case of a state with a 
program approved under section 9004 (or pursuant to a memorandum of 
agreement with EPA), the designated state or local agency responsible 
for carrying out an approved UST program.
    Liquid trap means sumps, well cellars, and other traps used in 
association with oil and gas production, gathering, and extraction 
operations (including gas production plants), for the purpose of 
collecting oil, water, and other liquids. These liquid traps may 
temporarily collect liquids for subsequent disposition or reinjection 
into a production or pipeline stream, or may collect and separate 
liquids from a gas stream.
    Maintenance means the normal operational upkeep to prevent an 
underground storage tank system from releasing product.
    Motor fuel means a complex blend of hydrocarbons 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).
    New tank system means a tank system that will be used to contain an 
accumulation of regulated substances and for which installation has 
commenced after December 22, 1988. (See also Existing Tank System.)
    Noncommercial purposes with respect to motor fuel means not for 
resale.
    On the premises where stored with respect to heating oil means UST 
systems located on the same property where the stored heating oil is 
used.
    Operational life refers to the period beginning when installation 
of the tank system has commenced until the time the tank system is 
properly closed under subpart G.
    Operator means any person in control of, or having responsibility 
for, the daily operation of the UST system.
    Overfill release is a release that occurs when a tank is filled 
beyond its capacity, resulting in a discharge of the regulated 
substance to the environment.
    Owner means:
    (1) In the case of an UST system in use on November 8, 1984, or 
brought into use after that date, any person who owns an UST system 
used for storage, use, or dispensing of regulated substances; and
    (2) In the case of any UST system in use before November 8, 1984, 
but no longer in use on that date, any person who owned such UST 
immediately before the discontinuation of its use.
    Person means an individual, trust, firm, joint stock company, 
federal agency, corporation, state, municipality, commission, political 
subdivision of a state, or any interstate body. Person also includes a 
consortium, a joint venture, a commercial entity, and the United States 
Government.
    Petroleum UST system means an underground storage tank system that 
contains petroleum or a mixture of petroleum with de minimis quantities 
of other regulated substances. Such systems include those containing 
motor fuels, jet fuels, distillate fuel oils, residual fuel oils, 
lubricants, petroleum solvents, and used oils.
    Pipe or Piping means a hollow cylinder or tubular conduit that is 
constructed of non-earthen materials.
    Pipeline facilities (including gathering lines) are new and 
existing pipe rights-of-way and any associated equipment, facilities, 
or buildings.
    Regulated substance means:
    (1) 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
    (2) 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.
    Release means any spilling, leaking, emitting, discharging, 
escaping, leaching or disposing from an UST into groundwater, surface 
water or subsurface soils.
    Release detection means determining whether a release of a 
regulated substance has occurred from the UST system into the 
environment or a leak has occurred into the interstitial space between 
the UST system and its secondary barrier or secondary containment 
around it.
    Repair means to restore to proper operating condition 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 of product from the UST system or 
has failed to function properly.
    Replaced means:
    (1) For a tank--to remove a tank and install another tank.
    (2) 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.
    Residential tank is a tank located on property used primarily for 
dwelling purposes.
    SARA means the Superfund Amendments and Reauthorization Act of 
1986.
    Secondary containment or Secondarily contained means a release 
prevention and release detection system for a tank or piping. This 
system has an inner and outer barrier with an interstitial space that 
is monitored for leaks. This term includes containment sumps when used 
for interstitial monitoring of piping.
    Septic tank is a water-tight covered receptacle designed to receive 
or process, through liquid separation or

[[Page 41627]]

biological digestion, the sewage discharged from a building sewer. The 
effluent from such receptacle is distributed for disposal through the 
soil and settled solids and scum from the tank are pumped out 
periodically and hauled to a treatment facility.
    Storm water or wastewater collection system means piping, pumps, 
conduits, and any other equipment necessary to collect and transport 
the flow of surface water run-off resulting from precipitation, or 
domestic, commercial, or industrial wastewater to and from retention 
areas or any areas where treatment is designated to occur. The 
collection of storm water and wastewater does not include treatment 
except where incidental to conveyance.
    Surface impoundment is a natural topographic depression, man-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with man-made materials) that is not an 
injection well.
    Tank is a stationary device designed to contain an accumulation of 
regulated substances and constructed of non-earthen materials (e.g., 
concrete, steel, plastic) that provide structural support.
    Training program means any program that provides information to and 
evaluates the knowledge of a Class A, Class B, or Class C operator 
through testing, practical demonstration, or another approach 
acceptable to the implementing agency regarding requirements for UST 
systems that meet the requirements of subpart J of this part.
    Under-dispenser containment or UDC means containment underneath a 
dispenser system designed to prevent leaks from the dispenser and 
piping within or above the UDC from reaching soil or groundwater.
    Underground area means an underground room, such as a basement, 
cellar, shaft or vault, providing enough space for physical inspection 
of the exterior of the tank situated on or above the surface of the 
floor.
    Underground release means any belowground release.
    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:
    (1) Farm or residential tank of 1,100 gallons or less capacity used 
for storing motor fuel for noncommercial purposes;
    (2) Tank used for storing heating oil for consumptive use on the 
premises where stored;
    (3) Septic tank;
    (4) Pipeline facility (including gathering lines):
    (i) Which is regulated under 49 U.S.C. chapter 601; or
    (ii) Which is an intrastate pipeline facility regulated under state 
laws as provided in 49 U.S.C. chapter 601, 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;
    (5) Surface impoundment, pit, pond, or lagoon;
    (6) Storm water or wastewater collection system;
    (7) Flow-through process tank;
    (8) Liquid trap or associated gathering lines directly related to 
oil or gas production and gathering operations; or
    (9) 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.
    Note to the definition of Underground storage tank or UST. The term 
underground storage tank or UST does not include any pipes connected to 
any tank which is described in paragraphs (1) through (9) of this 
definition.
    Upgrade means the addition or retrofit of some systems such as 
cathodic protection, lining, or spill and overfill controls to improve 
the ability of an underground storage tank system to prevent the 
release of product.
    UST system or Tank system means an underground storage tank, 
connected underground piping, underground ancillary equipment, and 
containment system, if any.
    Wastewater treatment tank means a tank that is designed to receive 
and treat an influent wastewater through physical, chemical, or 
biological methods.

Subpart B--UST Systems: Design, Construction, Installation and 
Notification

Sec.  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. In addition, except for suction piping 
that meets the requirements of Sec.  280.41(b)(1)(ii)(A) through (E), 
tanks and piping installed or replaced after April 11, 2016 must be 
secondarily contained and use interstitial monitoring in accordance 
with Sec.  280.43(g). Secondary containment must be able to contain 
regulated substances leaked from the primary containment until they are 
detected and removed and prevent the release of regulated substances to 
the environment at any time during the operational life of the UST 
system. For cases where the piping is considered to be replaced, the 
entire piping run must be secondarily contained.
    (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 below:
    (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 Sec.  280.31(c); and
    (iv) Cathodic protection systems are operated and maintained in 
accordance with Sec.  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[supreg] 
Specification and Manual for External Corrosion Protection of 
Underground Steel Storage Tanks'';
    (B) Underwriters Laboratories Standard 1746, ``External 
Corrosion Protection Systems for Steel Underground Storage Tanks'';
    (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

[[Page 41628]]

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 Standard Practice SP 0285, ``External 
Corrosion Control of Underground Storage Tank 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 
non-corrodible 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, ``External 
Corrosion Protection Systems for Steel Underground Storage Tanks'';
    (B) Steel Tank Institute ACT-100[supreg] Specification F894, 
``Specification for External Corrosion Protection of FRP Composite 
Steel Underground Storage Tanks'';
    (C) Steel Tank Institute ACT-100-U[supreg] Specification F961, 
``Specification for External Corrosion Protection of Composite Steel 
Underground Storage Tanks''; or
    (D) Steel Tank Institute Specification F922, ``Steel Tank 
Institute Specification for Permatank[supreg]''.

    (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.
    (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 below.
    (1) The piping is constructed of a non-corrodible 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, ``Nonmetallic 
Underground Piping for Flammable Liquids''; or
    (B) Underwriters Laboratories of Canada Standard S660, 
``Standard for Nonmetallic Underground Piping for Flammable and 
Combustible 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 Sec.  280.31(c); and
    (iv) Cathodic protection systems are operated and maintained in 
accordance with Sec.  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 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 Standard Practice SP 0285, ``External 
Corrosion Control of Underground Storage Tank 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.
    (c) Spill and overfill prevention equipment. (1) Except as provided 
in paragraphs (c)(2) and (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 October 13, 2015.
    (4) Spill and overfill prevention equipment must be periodically 
tested or inspected in accordance with Sec.  280.35.
    (d) Installation. The UST system 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

[[Page 41629]]

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 Sec.  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 under-
dispenser containment for any new dispenser system installed after 
April 11, 2016.
    (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 underneath 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. Under-dispenser containment must allow 
for visual inspection and access to the components in the containment 
system or be periodically monitored for leaks from the dispenser 
system.

Sec.  280.21  Upgrading of existing UST systems.

    Owners and operators must permanently close (in accordance with 
subpart G of this part) any UST system that does not meet the new UST 
system performance standards in Sec.  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 subpart 
K of this part 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 Sec.  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 of this 
part.
    (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 
Sec.  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 Sec.  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 monthly for releases in accordance with Sec.  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 Sec.  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 
Sec.  280.33; and
    (ii) The cathodic protection system meets the requirements of Sec.  
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 Recommended Practice 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, Chapter B 
``Future Internal Inspection Requirements for Lined 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 Sec.  280.20(b)(2)(ii), 
(iii), and (iv).

[[Page 41630]]

    Note to paragraph (c). The codes of practice listed in the note 
following Sec.  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 UST system spill and overfill 
prevention equipment requirements specified in Sec.  280.20(c).

Sec.  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 or a state form in accordance with 
paragraph (c) of this section.

    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 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 X 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 or a state form in accordance with paragraph (c) of this 
section.
    (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. If a state requires that its form be used 
in lieu of the form presented in appendix I and appendix II, such form 
must, at a minimum, collect the information prescribed in appendix I 
and appendix II.
    (d) Owners required to submit notices under paragraph (a) or (b) of 
this section must provide notices to the appropriate 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 Sec.  280.20(e);
    (2) Cathodic protection of steel tanks and piping under Sec.  
280.20(a) and (b);
    (3) Financial responsibility under subpart H of this part; and
    (4) Release detection under Sec. Sec.  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 Sec.  
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.

Subpart C--General Operating Requirements

Sec.  280.30  Spill and overfill control.

    (a) Owners and operators must ensure that releases due to spilling 
or overfilling do not occur. The owner and operator must ensure that 
the volume available in the tank is greater than the volume of product 
to be transferred to the tank before the transfer is made and that the 
transfer operation is monitored constantly to prevent overfilling and 
spilling.

    Note to paragraph (a). 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''.

    (b) The owner and operator must report, investigate, and clean up 
any spills and overfills in accordance with Sec.  280.53.

Sec.  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 Sec.  
280.71:
    (a) All corrosion protection systems must be operated and 
maintained to continuously provide corrosion protection to the metal 
components of that portion of the tank and piping that routinely 
contain regulated substances and are in contact with the ground.
    (b) All UST systems equipped with cathodic protection systems must 
be inspected for proper operation by a qualified cathodic protection 
tester in accordance with the following requirements:
    (1) Frequency. All cathodic protection systems must be tested 
within 6 months of installation and at least every 3 years thereafter 
or according to another reasonable time frame established by the 
implementing agency; and
    (2) Inspection criteria. The criteria that are used to determine 
that cathodic protection is adequate as required by this section must 
be in accordance with a code of practice developed by a nationally 
recognized association.

    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 of 
Underground Storage 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[supreg] USTs'';
    (D) NACE International Standard Practice SP 0285, ``External 
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''.

    (c) UST systems with impressed current cathodic protection systems 
must also be inspected every 60 days to ensure the equipment is running 
properly.
    (d) For UST systems using cathodic protection, records of the 
operation of the cathodic protection must be maintained (in accordance 
with Sec.  280.34) to demonstrate compliance with the performance 
standards in this section. These records must provide the following:
    (1) The results of the last three inspections required in paragraph 
(c) of this section; and

[[Page 41631]]

    (2) The results of testing from the last two inspections required 
in paragraph (b) of this section.

Sec.  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 must notify the implementing agency at 
least 30 days prior to switching to a regulated substance containing 
greater than 10 percent ethanol, greater than 20 percent biodiesel, or 
any other regulated substance identified by the implementing agency. In 
addition, owners and operators with UST systems storing these regulated 
substances must meet one of the following:
    (1) Demonstrate compatibility of the UST system (including the 
tank, piping, containment sumps, pumping equipment, release detection 
equipment, spill equipment, and overfill equipment). Owners and 
operators may demonstrate compatibility of the UST system by using one 
of the following options:
    (i) Certification or listing of UST system equipment or components 
by a nationally recognized, independent testing laboratory for use with 
the regulated substance stored; or
    (ii) 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 
equipment or component is compatible with, and be from the equipment or 
component manufacturer; or
    (2) Use another option determined by the implementing agency to be 
no less protective of human health and the environment than the options 
listed in paragraph (b)(1) of this section. (c) Owners and operators 
must maintain records in accordance with Sec.  280.34(b) documenting 
compliance with paragraph (b) of this section for as long as the UST 
system is used to store the regulated substance.

    Note to Sec.  280.32. The following code of practice may be 
useful in complying with this section: American Petroleum Institute 
Recommended Practice 1626, ``Storing and Handling Ethanol and 
Gasoline-Ethanol Blends at Distribution Terminals and Filling 
Stations.''

Sec.  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, 
``Standard for the Safeguarding of Tanks and Containers for Entry, 
Cleaning, or Repair'';
    (E) National Leak Prevention Association Standard 631, Chapter 
A, ``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 
STI-P3[supreg] Tanks'';
    (G) NACE International Standard Practice SP 0285, ``External 
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 replaced. Non-corrodible 
pipes and fittings may be repaired in accordance with the 
manufacturer's specifications.
    (d) Repairs to secondary containment areas of tanks and piping used 
for interstitial monitoring and to containment sumps used for 
interstitial monitoring of piping must have the secondary containment 
tested for tightness according to the manufacturer's instructions, a 
code of practice developed by a nationally recognized association or 
independent testing laboratory, or according to requirements 
established by the implementing agency within 30 days following the 
date of completion of the repair. All other repairs to tanks and piping 
must be tightness tested in accordance with Sec.  280.43(c) and Sec.  
280.44(b) within 30 days following the date of the completion of the 
repair except as provided in paragraphs (d)(1) through (3) 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 Sec.  280.43(d) 
through (i); or
    (3) 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 in paragraphs (d)(1) and (2) of this 
section.

    Note to paragraph (d). The following codes of practice may be 
used to comply with paragraph (d) 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''.
    (C) Petroleum Equipment Institute Recommended Practice RP1200, 
``Recommended Practices for the Testing and Verification of Spill, 
Overfill, Leak Detection and Secondary Containment Equipment at UST 
Facilities''.

    (e) Within 6 months following the repair of any cathodically 
protected UST system, the cathodic protection system must be tested in 
accordance with Sec.  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 or inspected, as appropriate, in accordance 
with Sec.  280.35 to ensure it is operating properly.
    (g) UST system owners and operators must maintain records (in 
accordance with Sec.  280.34) of each repair until the UST system is 
permanently closed or undergoes a change-in-service pursuant to Sec.  
280.71.

Sec.  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:

[[Page 41632]]

    (1) Notification for all UST systems (Sec.  280.22), which includes 
certification of installation for new UST systems (Sec.  280.20(e)) and 
notification when any person assumes ownership of an UST system (Sec.  
280.22(b));
    (2) Notification prior to UST systems switching to certain 
regulated substances (Sec.  280.32(b));
    (3) Reports of all releases including suspected releases (Sec.  
280.50), spills and overfills (Sec.  280.53), and confirmed releases 
(Sec.  280.61);
    (4) Corrective actions planned or taken including initial abatement 
measures (Sec.  280.62), initial site characterization (Sec.  280.63), 
free product removal (Sec.  280.64), investigation of soil and 
groundwater cleanup (Sec.  280.65), and corrective action plan (Sec.  
280.66); and
    (5) A notification before permanent closure or change-in-service 
(Sec.  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 (Sec.  280.20(a)(4); Sec.  
280.20(b)(3)).
    (2) Documentation of operation of corrosion protection equipment 
(Sec.  280.31(d));
    (3) Documentation of compatibility for UST systems (Sec.  
280.32(c));
    (4) Documentation of UST system repairs (Sec.  280.33(g));
    (5) Documentation of compliance for spill and overfill prevention 
equipment and containment sumps used for interstitial monitoring of 
piping (Sec.  280.35(c));
    (6) Documentation of periodic walkthrough inspections (Sec.  
280.36(b));
    (7) Documentation of compliance with release detection requirements 
(Sec.  280.45);
    (8) Results of the site investigation conducted at permanent 
closure (Sec.  280.74); and
    (9) Documentation of operator training (Sec.  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 Sec.  
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 in 
paragraphs (c)(1) and (2) of this section.

Sec.  280.35  Periodic testing of spill prevention equipment and 
containment sumps used for interstitial monitoring of piping and 
periodic inspection of overfill prevention equipment.

    (a) Owners and operators of UST systems with spill and overfill 
prevention equipment and containment sumps used for interstitial 
monitoring of piping must meet these 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) and containment sumps used 
for interstitial monitoring of piping must prevent releases to the 
environment by meeting one of the following:
    (i) The equipment is double walled and the integrity of both walls 
is periodically monitored at a frequency not less than the frequency of 
the walkthrough inspections described in Sec.  280.36. Owners and 
operators must begin meeting paragraph (a)(1)(ii) of this section and 
conduct a test within 30 days of discontinuing periodic monitoring of 
this equipment; or
    (ii) The spill prevention equipment and containment sumps used for 
interstitial monitoring of piping are tested at least once every three 
years to ensure the 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 
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) Overfill prevention equipment must be inspected at least once 
every three years. At a minimum, the inspection must ensure that 
overfill prevention equipment is set to activate at the correct level 
specified in Sec.  280.20(c) and will activate when regulated substance 
reaches that level. Inspections must be conducted in accordance with 
one of the criteria in paragraph (a)(1)(ii)(A) through (C) of this 
section.

    Note to paragraphs (a)(1)(ii) and (a)(2). The following code of 
practice may be used to comply with paragraphs (a)(1)(ii) and (a)(2) 
of this section: Petroleum Equipment Institute Publication RP1200, 
``Recommended Practices for the Testing and Verification of Spill, 
Overfill, Leak Detection and Secondary Containment Equipment at UST 
Facilities''.

    (b) Owners and operators must begin meeting these requirements as 
follows:
    (1) For UST systems in use on or before October 13, 2015, the 
initial spill prevention equipment test, containment sump test and 
overfill prevention equipment inspection must be conducted not later 
than October 13, 2018.
    (2) For UST systems brought into use after October 13, 2015, these 
requirements apply at installation.
    (c) Owners and operators must maintain records as follows (in 
accordance with Sec.  280.34) for spill prevention equipment, 
containment sumps used for interstitial monitoring of piping, and 
overfill prevention equipment:
    (1) All records of testing or inspection must be maintained for 
three years; and
    (2) For spill prevention equipment and containment sumps used for 
interstitial monitoring of piping not tested every three years, 
documentation showing that the prevention equipment is double walled 
and the integrity of both walls is periodically monitored must be 
maintained for as long as the equipment is periodically monitored.

Sec.  280.36  Periodic operation and maintenance walkthrough 
inspections.

    (a) To properly operate and maintain UST systems, not later than 
October 13, 2018 owners and operators must meet one of the following:
    (1) Conduct a walkthrough inspection that, at a minimum, checks the 
following equipment as specified below:
    (i) Every 30 days (Exception: spill prevention equipment at UST 
systems receiving deliveries at intervals greater than every 30 days 
may be checked prior to each delivery):
    (A) Spill prevention equipment--visually check for damage; remove 
liquid or debris; check for and remove obstructions in the fill pipe; 
check the fill cap to make sure it is securely on the fill pipe; and, 
for double walled spill prevention equipment with interstitial 
monitoring, check for a leak in the interstitial area; and
    (B) Release detection equipment--check to make sure the release 
detection equipment is operating with no alarms or other unusual 
operating conditions present; and ensure records of release detection 
testing are reviewed and current; and
    (ii) Annually:
    (A) Containment sumps--visually check for damage, leaks to the 
containment area, or releases to the

[[Page 41633]]

environment; remove liquid (in contained sumps) or debris; and, for 
double walled sumps with interstitial monitoring, check for a leak in 
the interstitial area; and
    (B) Hand held release detection equipment--check devices such as 
tank gauge sticks or groundwater bailers for operability and 
serviceability;
    (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 checks 
equipment comparable to paragraph (a)(1) of this section; or

    Note to paragraph (a)(2). The following code of practice may be 
used to comply with paragraph (a)(2) of this section: Petroleum 
Equipment Institute Recommended Practice RP 900, ``Recommended 
Practices for the Inspection and Maintenance of UST Systems''.

    (3) Conduct operation and maintenance walkthrough inspections 
developed by the implementing agency that checks equipment comparable 
to paragraph (a)(1) of this section.
    (b) Owners and operators must maintain records (in accordance with 
Sec.  280.34) of operation and maintenance walkthrough inspections for 
one year. Records must include a list of each area checked, whether 
each area checked was acceptable or needed action taken, a description 
of actions taken to correct an issue, and delivery records if spill 
prevention equipment is checked less frequently than every 30 days due 
to infrequent deliveries.

Subpart D--Release Detection

Sec.  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 October 13, 2018, 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 determined by the 
implementing agency to be no less protective of human health and the 
environment than the two options listed in paragraphs (a)(1) and (2) of 
this section. A test of the proper operation must be performed at least 
annually and, at a minimum, 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 and breaks; test alarm operability and communication with 
controller;
    (iii) Automatic line leak detector: test operation to meet criteria 
in Sec.  280.44(a) by simulating a leak;
    (iv) Vacuum pumps and pressure gauges: ensure proper communication 
with sensors and controller; and
    (v) Hand-held electronic sampling equipment associated with 
groundwater and vapor monitoring: ensure proper operation.

    Note to paragraph (a)(3). The following code of practice may be 
used to comply with paragraph (a)(3) of this section: Petroleum 
Equipment Institute Publication RP1200, ``Recommended Practices for 
the Testing and Verification of Spill, Overfill, Leak Detection and 
Secondary Containment Equipment at UST Facilities''.

    (4) Meets the performance requirements in Sec.  280.43, Sec.  
280.44, or subpart K of this part, 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 
Sec.  280.43(b), (c), (d), (h), and (i), Sec.  280.44(a) and (b), and 
subpart K of this part, 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 Sec.  280.43, Sec.  280.44, or subpart K of 
this part indicates a release may have occurred, owners and operators 
must notify the implementing agency in accordance with subpart E of 
this part.
    (c) 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 of this part. For previously deferred 
UST systems described in subparts A and K of this part, this 
requirement applies after the effective dates described in Sec.  
280.10(a)(1)(ii) and (iii) and Sec.  280.251(a).

Sec.  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 April 11, 2016 must be monitored 
for releases at least every 30 days using one of the methods listed in 
Sec.  280.43(d) through (i) except that:
    (i) UST systems that meet the performance standards in Sec.  280.20 
or Sec.  280.21, and the monthly inventory control requirements in 
Sec.  280.43(a) or (b), may use tank tightness testing (conducted in 
accordance with Sec.  280.43(c)) at least every 5 years until 10 years 
after the tank was installed; and
    (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 Sec.  280.43(b) may use manual tank gauging (conducted in accordance 
with Sec.  280.43(b)).
    (2) Tanks installed after April 11, 2016 must be monitored for 
releases at least every 30 days in accordance with Sec.  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 April 11, 2016 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 Sec.  280.44(a); and
    (B) Have an annual line tightness test conducted in accordance with 
Sec.  280.44(b) or have monthly monitoring conducted in accordance with 
Sec.  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 Sec.  
280.44(b), or use a monthly monitoring method conducted in accordance 
with Sec.  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;

[[Page 41634]]

    (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)(1)(ii)(B) through (D) of this section to be readily determined.
    (2) Piping installed or replaced after April 11, 2016 must meet one 
of the following:
    (i) Pressurized piping must be monitored for releases at least 
every 30 days in accordance with Sec.  280.43(g) and be equipped with 
an automatic line leak detector in accordance with Sec.  280.44(a)
    (ii) Suction piping must be monitored for releases at least every 
30 days in accordance with Sec.  280.43(g). No release detection is 
required for suction piping that meets paragraphs (b)(1)(ii)(A) through 
(E) of this section.

Sec.  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 Sec.  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 October 13, 
2015.

    (b) Double walled tanks must be designed, constructed, and 
installed to:
    (1) Contain a leak 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 groundwater 
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, 
double walled pipe). In addition, underground piping that conveys 
regulated substances under pressure must be equipped with an automatic 
line leak detector in accordance with Sec.  280.44(a).
    (e) For hazardous substance UST systems installed on or before 
October 13, 2015 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 Sec.  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.

Sec.  280.43  Methods of release detection for tanks.

    Each method of release detection for tanks used to meet the 
requirements of Sec.  280.41 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 (a).

    (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 using the appropriate minimum duration of test value 
in the table below 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:

----------------------------------------------------------------------------------------------------------------
                                                                  Weekly standard (one    Monthly standard (four
        Nominal tank capacity         Minimum duration of test           test)                test average)
----------------------------------------------------------------------------------------------------------------
550 gallons or less.................  36 hours................  10 gallons.............  5 gallons
551-1,000 gallons (when tank          44 hours................  9 gallons..............  4 gallons
 diameter is 64 inches).
551-1,000 gallons (when tank          58 hours................  12 gallons.............  6 gallons
 diameter is 48 inches).
551-1,000 gallons (also requires      36 hours................  13 gallons.............  7 gallons
 periodic tank tightness testing).
1,001-2,000 gallons (also requires    36 hours................  26 gallons.............  13 gallons
 periodic tank tightness testing).
----------------------------------------------------------------------------------------------------------------

[[Page 41635]]

    (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 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 Sec.  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;
    (2) The automatic tank gauging equipment must meet the inventory 
control (or other test of equivalent performance) requirements of Sec.  
280.43(a); and
    (3) The test must be performed with the system operating in one of 
the following modes:
    (i) In-tank static testing conducted at least once every 30 days; 
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 groundwater, 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) Groundwater monitoring. Testing or monitoring for liquids on 
the groundwater must meet the following requirements:
    (1) The regulated substance stored is immiscible in water and has a 
specific gravity of less than one;
    (2) Groundwater 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 groundwater 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 groundwater 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 leak 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 leak 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 leak to the monitoring point and permit 
its detection;
    (ii) The barrier is compatible with the regulated substance stored 
so that a leak 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 groundwater, 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 groundwater 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 leak between the inner wall of the tank and the liner, and 
the liner is compatible with the substance stored.
    (h) Statistical inventory reconciliation. Release detection methods 
based on the application of statistical principles to inventory data 
similar to those described in Sec.  280.43(a) must meet the following 
requirements:

[[Page 41636]]

    (1) Report a quantitative result with a calculated leak rate;
    (2) Be capable of detecting a leak rate of 0.2 gallon per hour or a 
release of 150 gallons within 30 days; and
    (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.

Sec.  280.44  Methods of release detection for piping.

    Each method of release detection for piping used to meet the 
requirements of Sec.  280.41 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 
Sec.  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 Sec.  
280.41(a), any of the methods in Sec.  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.

Sec.  280.45  Release detection recordkeeping.

    All UST system owners and operators must maintain records in 
accordance with Sec.  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. 
Not later than October 13, 2018, records of site assessments required 
under Sec.  280.43(e)(6) and (f)(7) must be maintained for as long as 
the methods are used. Records of site assessments developed after 
October 13, 2015 must be signed by a professional engineer or 
professional geologist, or equivalent licensed professional with 
experience in environmental engineering, hydrogeology, or other 
relevant technical discipline acceptable to the implementing agency;
    (b) The results of any sampling, testing, or monitoring must be 
maintained for at least one 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 Sec.  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 Sec.  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 conducted in accordance 
with Sec.  280.43(c) must be retained until the next test is conducted; 
and
    (3) The results of tank tightness testing, line tightness testing, 
and vapor monitoring using a tracer compound placed in the tank system 
conducted in accordance with Sec.  280.252(d) 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 five years from the date of installation.

Subpart E--Release Reporting, Investigation, and Confirmation

Sec.  280.50  Reporting of suspected releases.

    Owners and operators of UST systems must report to the implementing 
agency within 24 hours, or another reasonable period specified by the 
implementing agency, and follow the procedures in Sec.  280.52 for any 
of the following conditions:
    (a) The discovery by owners and operators or others of released 
regulated substances at the UST site or in the surrounding area (such 
as the presence of free product or vapors in soils, basements, sewer 
and utility lines, and nearby surface water).
    (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 liquid in the interstitial space of secondarily 
contained systems), unless:
    (1) The system equipment or component is found not to be releasing 
regulated substances to the environment;
    (2) Any defective system equipment or component is immediately 
repaired or replaced; and
    (3) For secondarily contained systems, except as provided for in 
Sec.  280.43(g)(2)(iv), any liquid in the interstitial space not used 
as part of the interstitial monitoring method (for example, brine 
filled) is immediately removed.
    (c) Monitoring results, including investigation of an alarm, from a 
release detection method required under Sec. Sec.  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;
    (2) The leak is contained in the secondary containment and:
    (i) Except as provided for in Sec.  280.43(g)(2)(iv), any liquid in 
the interstitial space not used as part of the interstitial monitoring 
method (for example, brine filled) is immediately removed; and
    (ii) Any defective system equipment or component is immediately 
repaired or replaced;
    (3) In the case of inventory control described in Sec.  280.43(a), 
a second month of data does not confirm the initial result or the 
investigation determines no release has occurred; or
    (4) The alarm was investigated and determined to be a non-release 
event

[[Page 41637]]

(for example, from a power surge or caused by filling the tank during 
release detection testing).

Sec.  280.51  Investigation due to off-site impacts.

    When required by the implementing agency, owners and operators of 
UST systems must follow the procedures in Sec.  280.52 to determine if 
the UST system is the source of off-site impacts. These impacts include 
the discovery of regulated substances (such as the presence of free 
product or vapors in soils, basements, sewer and utility lines, and 
nearby surface and drinking waters) that has been observed by the 
implementing agency or brought to its attention by another party.

Sec.  280.52  Release investigation and confirmation steps.

    Unless corrective action is initiated in accordance with subpart F, 
owners and operators must immediately investigate and confirm all 
suspected releases of regulated substances requiring reporting under 
Sec.  280.50 within 7 days, or another reasonable time period specified 
by the implementing agency, using either the following steps or another 
procedure approved by the implementing agency:
    (a) System test. Owners and operators must conduct tests (according 
to the requirements for tightness testing in Sec. Sec.  280.43(c) and 
280.44(b) or, as appropriate, secondary containment testing described 
in Sec.  280.33(d)).
    (1) The test must determine whether:
    (i) A leak exists in that portion of the tank that routinely 
contains product, or the attached delivery piping; or
    (ii) A breach of either wall of the secondary containment has 
occurred.
    (2) If the system test confirms a leak into the interstice or a 
release, 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 of this part if the test results 
for the system, tank, or delivery piping indicate that a release 
exists.
    (3) 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.
    (4) 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.
    (b) Site check. Owners and operators must measure for the presence 
of a release where contamination is most likely to be present at the 
UST site. In selecting sample types, sample locations, and measurement 
methods, owners and operators must consider the nature of the stored 
substance, the type of initial alarm or cause for suspicion, the type 
of backfill, the depth of groundwater, and other factors appropriate 
for identifying the presence and source of the release.
    (1) If the test results for the excavation zone or the UST site 
indicate that a release has occurred, owners and operators must begin 
corrective action in accordance with subpart F of this part;
    (2) If the test results for the excavation zone or the UST site do 
not indicate that a release has occurred, further investigation is not 
required.

Sec.  280.53  Reporting and cleanup of spills and overfills.

    (a) Owners and operators of UST systems must contain and 
immediately clean up a spill or overfill and report to the implementing 
agency within 24 hours, or another reasonable time period specified by 
the implementing agency, and begin corrective action in accordance with 
subpart F of this part in the following cases:
    (1) Spill or overfill of petroleum that results in a release to the 
environment that exceeds 25 gallons or another reasonable amount 
specified by the implementing agency, or that causes a sheen on nearby 
surface water; and
    (2) Spill or overfill of a hazardous substance that results in a 
release to the environment that equals or exceeds its reportable 
quantity under CERCLA (40 CFR part 302).

    Note to paragraph (a). Pursuant to Sec. Sec.  302.6 and 355.40 
of this chapter, a release of a hazardous substance equal to or in 
excess of its reportable quantity must also be reported immediately 
(rather than within 24 hours) to the National Response Center under 
sections 102 and 103 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 and to appropriate state and 
local authorities under Title III of the Superfund Amendments and 
Reauthorization Act of 1986.

    (b) Owners and operators of UST systems must contain and 
immediately clean up a spill or overfill of petroleum that is less than 
25 gallons or another reasonable amount specified by the implementing 
agency, and a spill or overfill of a hazardous substance that is less 
than the reportable quantity. If cleanup cannot be accomplished within 
24 hours, or another reasonable time period established by the 
implementing agency, owners and operators must immediately notify the 
implementing agency.

Subpart F--Release Response and Corrective Action for UST Systems 
Containing Petroleum or Hazardous Substances

Sec.  280.60  General.

    Owners and operators of petroleum or hazardous substance UST 
systems must, in response to a confirmed release from the UST system, 
comply with the requirements of this subpart except for USTs excluded 
under Sec.  280.10(b) and UST systems subject to RCRA Subtitle C 
corrective action requirements under section 3004(u) of the Resource 
Conservation and Recovery Act, as amended.

Sec.  280.61  Initial response.

    Upon confirmation of a release in accordance with Sec.  280.52 or 
after a release from the UST system is identified in any other manner, 
owners and operators must perform the following initial response 
actions within 24 hours of a release or within another reasonable 
period of time determined by the implementing agency:
    (a) Report the release to the implementing agency (e.g., by 
telephone or electronic mail);
    (b) Take immediate action to prevent any further release of the 
regulated substance into the environment; and
    (c) Identify and mitigate fire, explosion, and vapor hazards.

Sec.  280.62  Initial abatement measures and site check.

    (a) Unless directed to do otherwise by the implementing agency, 
owners and operators must perform the following abatement measures:
    (1) Remove as much of the regulated substance from the UST system 
as is necessary to prevent further release to the environment;
    (2) Visually inspect any aboveground releases or exposed 
belowground releases and prevent further migration of the released 
substance into surrounding soils and groundwater;
    (3) Continue to monitor and mitigate any additional fire and safety 
hazards posed by vapors or free product that have migrated from the UST 
excavation zone and entered into subsurface structures (such as sewers 
or basements);
    (4) Remedy hazards posed by contaminated soils that are excavated 
or exposed as a result of release confirmation, site investigation, 
abatement, or corrective action activities. If these remedies include 
treatment or disposal of soils, the owner and operator must comply with 
applicable state and local requirements;
    (5) Measure for the presence of a release where contamination is 
most

[[Page 41638]]

likely to be present at the UST site, unless the presence and source of 
the release have been confirmed in accordance with the site check 
required by Sec.  280.52(b) or the closure site assessment of Sec.  
280.72(a). In selecting sample types, sample locations, and measurement 
methods, the owner and operator must consider the nature of the stored 
substance, the type of backfill, depth to groundwater and other factors 
as appropriate for identifying the presence and source of the release; 
and
    (6) Investigate to determine the possible presence of free product, 
and begin free product removal as soon as practicable and in accordance 
with Sec.  280.64.
    (b) Within 20 days after release confirmation, or within another 
reasonable period of time determined by the implementing agency, owners 
and operators must submit a report to the implementing agency 
summarizing the initial abatement steps taken under paragraph (a) of 
this section and any resulting information or data.

Sec.  280.63  Initial site characterization.

    (a) Unless directed to do otherwise by the implementing agency, 
owners and operators must assemble information about the site and the 
nature of the release, including information gained while confirming 
the release or completing the initial abatement measures in Sec. Sec.  
280.60 and 280.61. This information must include, but is not 
necessarily limited to the following:
    (1) Data on the nature and estimated quantity of release;
    (2) Data from available sources and/or site investigations 
concerning the following factors: Surrounding populations, water 
quality, use and approximate locations of wells potentially affected by 
the release, subsurface soil conditions, locations of subsurface 
sewers, climatological conditions, and land use;
    (3) Results of the site check required under Sec.  280.62(a)(5); 
and
    (4) Results of the free product investigations required under Sec.  
280.62(a)(6), to be used by owners and operators to determine whether 
free product must be recovered under Sec.  280.64.
    (b) Within 45 days of release confirmation or another reasonable 
period of time determined by the implementing agency, owners and 
operators must submit the information collected in compliance with 
paragraph (a) of this section to the implementing agency in a manner 
that demonstrates its applicability and technical adequacy, or in a 
format and according to the schedule required by the implementing 
agency.

Sec.  280.64  Free product removal.

    At sites where investigations under Sec.  280.62(a)(6) indicate the 
presence of free product, owners and operators must remove free product 
to the maximum extent practicable as determined by the implementing 
agency while continuing, as necessary, any actions initiated under 
Sec. Sec.  280.61 through 280.63, or preparing for actions required 
under Sec. Sec.  280.65 through 280.66. In meeting the requirements of 
this section, owners and operators must:
    (a) Conduct free product removal in a manner that minimizes the 
spread of contamination into previously uncontaminated zones by using 
recovery and disposal techniques appropriate to the hydrogeologic 
conditions at the site, and that properly treats, discharges or 
disposes of recovery byproducts in compliance with applicable local, 
state, and federal regulations;
    (b) Use abatement of free product migration as a minimum objective 
for the design of the free product removal system;
    (c) Handle any flammable products in a safe and competent manner to 
prevent fires or explosions; and
    (d) Unless directed to do otherwise by the implementing agency, 
prepare and submit to the implementing agency, within 45 days after 
confirming a release, a free product removal report that provides at 
least the following information:
    (1) The name of the person(s) responsible for implementing the free 
product removal measures;
    (2) The estimated quantity, type, and thickness of free product 
observed or measured in wells, boreholes, and excavations;
    (3) The type of free product recovery system used;
    (4) Whether any discharge will take place on-site or off-site 
during the recovery operation and where this discharge will be located;
    (5) The type of treatment applied to, and the effluent quality 
expected from, any discharge;
    (6) The steps that have been or are being taken to obtain necessary 
permits for any discharge; and
    (7) The disposition of the recovered free product.

Sec.  280.65  Investigations for soil and groundwater cleanup.

    (a) In order to determine the full extent and location of soils 
contaminated by the release and the presence and concentrations of 
dissolved product contamination in the groundwater, owners and 
operators must conduct investigations of the release, the release site, 
and the surrounding area possibly affected by the release if any of the 
following conditions exist:
    (1) There is evidence that groundwater wells have been affected by 
the release (e.g., as found during release confirmation or previous 
corrective action measures);
    (2) Free product is found to need recovery in compliance with Sec.  
280.64;
    (3) There is evidence that contaminated soils may be in contact 
with groundwater (e.g., as found during conduct of the initial response 
measures or investigations required under Sec. Sec.  280.60 through 
280.64); and
    (4) The implementing agency requests an investigation, based on the 
potential effects of contaminated soil or groundwater on nearby surface 
water and groundwater resources.
    (b) Owners and operators must submit the information collected 
under paragraph (a) of this section as soon as practicable or in 
accordance with a schedule established by the implementing agency.

Sec.  280.66  Corrective action plan.

    (a) At any point after reviewing the information submitted in 
compliance with Sec. Sec.  280.61 through 280.63, the implementing 
agency may require owners and operators to submit additional 
information or to develop and submit a corrective action plan for 
responding to contaminated soils and groundwater. If a plan is 
required, owners and operators must submit the plan according to a 
schedule and format established by the implementing agency. 
Alternatively, owners and operators may, after fulfilling the 
requirements of Sec. Sec.  280.61 through 280.63, choose to submit a 
corrective action plan for responding to contaminated soil and 
groundwater. In either case, owners and operators are responsible for 
submitting a plan that provides for adequate protection of human health 
and the environment as determined by the implementing agency, and must 
modify their plan as necessary to meet this standard.
    (b) The implementing agency will approve the corrective action plan 
only after ensuring that implementation of the plan will adequately 
protect human health, safety, and the environment. In making this 
determination, the implementing agency should consider the following 
factors as appropriate:
    (1) The physical and chemical characteristics of the regulated

[[Page 41639]]

substance, including its toxicity, persistence, and potential for 
migration;
    (2) The hydrogeologic characteristics of the facility and the 
surrounding area;
    (3) The proximity, quality, and current and future uses of nearby 
surface water and groundwater;
    (4) The potential effects of residual contamination on nearby 
surface water and groundwater;
    (5) An exposure assessment; and
    (6) Any information assembled in compliance with this subpart.
    (c) Upon approval of the corrective action plan or as directed by 
the implementing agency, owners and operators must implement the plan, 
including modifications to the plan made by the implementing agency. 
They must monitor, evaluate, and report the results of implementing the 
plan in accordance with a schedule and in a format established by the 
implementing agency.
    (d) Owners and operators may, in the interest of minimizing 
environmental contamination and promoting more effective cleanup, begin 
cleanup of soil and groundwater before the corrective action plan is 
approved provided that they:
    (1) Notify the implementing agency of their intention to begin 
cleanup;
    (2) Comply with any conditions imposed by the implementing agency, 
including halting cleanup or mitigating adverse consequences from 
cleanup activities; and
    (3) Incorporate these self-initiated cleanup measures in the 
corrective action plan that is submitted to the implementing agency for 
approval.

Sec.  280.67  Public participation.

    (a) For each confirmed release that requires a corrective action 
plan, the implementing agency must provide notice to the public by 
means designed to reach those members of the public directly affected 
by the release and the planned corrective action. This notice may 
include, but is not limited to, public notice in local newspapers, 
block advertisements, public service announcements, publication in a 
state register, letters to individual households, or personal contacts 
by field staff.
    (b) The implementing agency must ensure that site release 
information and decisions concerning the corrective action plan are 
made available to the public for inspection upon request.
    (c) Before approving a corrective action plan, the implementing 
agency may hold a public meeting to consider comments on the proposed 
corrective action plan if there is sufficient public interest, or for 
any other reason.
    (d) The implementing agency must give public notice that complies 
with paragraph (a) of this section if implementation of an approved 
corrective action plan does not achieve the established cleanup levels 
in the plan and termination of that plan is under consideration by the 
implementing agency.

Subpart G--Out-of-Service UST Systems and Closure

Sec.  280.70  Temporary closure.

    (a) When an UST system is temporarily closed, owners and operators 
must continue operation and maintenance of corrosion protection in 
accordance with Sec.  280.31, and any release detection in accordance 
with subparts D and K of this part. Subparts E and F of this part must 
be complied with if a release is suspected or confirmed. However, 
release detection and release detection operation and maintenance 
testing and inspections in subparts C and D of this part are not 
required as long as the UST system is empty. The UST system is empty 
when all materials have been removed using commonly employed practices 
so that no more than 2.5 centimeters (one inch) of residue, or 0.3 
percent by weight of the total capacity of the UST system, remain in 
the system. In addition, spill and overfill operation and maintenance 
testing and inspections in subpart C of this part are not required.
    (b) When an UST system is temporarily closed for 3 months or more, 
owners and operators must also comply with the following requirements:
    (1) Leave vent lines open and functioning; and
    (2) Cap and secure all other lines, pumps, manways, and ancillary 
equipment.
    (c) When an UST system is temporarily closed for more than 12 
months, owners and operators must permanently close the UST system if 
it does not meet either performance standards in Sec.  280.20 for new 
UST systems or the upgrading requirements in Sec.  280.21, except that 
the spill and overfill equipment requirements do not have to be met. 
Owners and operators must permanently close the substandard UST systems 
at the end of this 12-month period in accordance with Sec. Sec.  280.71 
through 280.74, unless the implementing agency provides an extension of 
the 12-month temporary closure period. Owners and operators must 
complete a site assessment in accordance with Sec.  280.72 before such 
an extension can be applied for.

Sec.  280.71  Permanent closure and changes-in-service.

    (a) At least 30 days before beginning either permanent closure or a 
change-in-service under paragraphs (b) and (c) of this section, or 
within another reasonable time period determined by the implementing 
agency, owners and operators must notify the implementing agency of 
their intent to permanently close or make the change-in-service, unless 
such action is in response to corrective action. The required 
assessment of the excavation zone under Sec.  280.72 must be performed 
after notifying the implementing agency but before completion of the 
permanent closure or a change-in-service.
    (b) To permanently close a tank, owners and operators must empty 
and clean it by removing all liquids and accumulated sludges. All tanks 
taken out of service permanently must: be removed from the ground, 
filled with an inert solid material, or closed in place in a manner 
approved by the implementing agency.
    (c) Continued use of an UST system to store a non-regulated 
substance is considered a change-in-service. Before a change-in-
service, owners and operators must empty and clean the tank by removing 
all liquid and accumulated sludge and conduct a site assessment in 
accordance with Sec.  280.72.

    Note to Sec.  280.71.  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, ``Safe Entry and 
Cleaning of Petroleum Storage Tanks, Planning and Managing Tank 
Entry From Decommissioning Through Recommissioning'';
    (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, 
``Standard for the Safeguarding of Tanks and Containers for Entry, 
Cleaning, or Repair''; and
    (F) 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.

Sec.  280.72  Assessing the site at closure or change-in-service.

    (a) Before permanent closure or a change-in-service is completed, 
owners

[[Page 41640]]

and operators must measure for the presence of a release where 
contamination is most likely to be present at the UST site. In 
selecting sample types, sample locations, and measurement methods, 
owners and operators must consider the method of closure, the nature of 
the stored substance, the type of backfill, the depth to groundwater, 
and other factors appropriate for identifying the presence of a 
release. The requirements of this section are satisfied if one of the 
external release detection methods allowed in Sec.  280.43(e) and (f) 
is operating in accordance with the requirements in Sec.  280.43 at the 
time of closure, and indicates no release has occurred.
    (b) If contaminated soils, contaminated groundwater, or free 
product as a liquid or vapor is discovered under paragraph (a) of this 
section, or by any other manner, owners and operators must begin 
corrective action in accordance with subpart F of this part.

Sec.  280.73  Applicability to previously closed UST systems.

    When directed by the implementing agency, the owner and operator of 
an UST system permanently closed before December 22, 1988 must assess 
the excavation zone and close the UST system in accordance with this 
subpart if releases from the UST may, in the judgment of the 
implementing agency, pose a current or potential threat to human health 
and the environment.

Sec.  280.74  Closure records.

    Owners and operators must maintain records in accordance with Sec.  
280.34 that are capable of demonstrating compliance with closure 
requirements under this subpart. The results of the excavation zone 
assessment required in Sec.  280.72 must be maintained for at least 
three years after completion of permanent closure or change-in-service 
in one of the following ways:
    (a) By the owners and operators who took the UST system out of 
service;
    (b) By the current owners and operators of the UST system site; or
    (c) By mailing these records to the implementing agency if they 
cannot be maintained at the closed facility.

Subpart H--Financial Responsibility

Sec.  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 Sec.  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 Sec.  280.10(b), (c)(1), 
(c)(3), or (c)(4).
    (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.

Sec.  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 Sec.  280.251(a).

Sec.  280.92  Definition of terms.

    When used in this subpart, the following terms shall have the 
meanings given below:
    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.
    Bodily injury shall have the meaning given to this term by 
applicable state law; however, this term shall not include those 
liabilities which, consistent with standard insurance industry 
practices, are excluded from coverage in liability insurance policies 
for bodily injury.
    Chief Financial Officer, in the case of local government owners and 
operators, means the individual with the overall authority and 
responsibility for the collection, disbursement, and use of funds by 
the local government.
    Controlling interest means direct ownership of at least 50 percent 
of the voting stock of another entity.
    Director of the Implementing Agency means the EPA Regional 
Administrator, or, in the case of a state with a program approved under 
section 9004, the Director of the designated state or local agency 
responsible for carrying out an approved UST program.
    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.
    Note to the definition of Financial reporting year. ``Financial 
reporting year'' may thus comprise a fiscal or a calendar year period.
    Legal defense cost is any expense that an owner or operator or 
provider of financial assurance incurs in defending against claims or 
actions brought:
    (1) By EPA or a state to require corrective action or to recover 
the costs of corrective action;
    (2) By or on behalf of a third party for bodily injury or property 
damage caused by an accidental release; or
    (3) By any person to enforce the terms of a financial assurance 
mechanism.
    Local government shall have the meaning given this term by 
applicable state law and includes Indian tribes. The term is generally 
intended to include:
    (1) Counties, municipalities, townships, separately chartered and 
operated special districts (including local government public transit 
systems and redevelopment authorities), and independent school 
districts authorized as governmental bodies by state charter or 
constitution; and
    (2) Special districts and independent school districts established 
by counties, municipalities, townships, and other general purpose 
governments to provide essential services.
    Occurrence means an accident, including continuous or repeated 
exposure to conditions, which results in a release from an underground 
storage tank.
    Note to the definition of Occurrence. This definition is intended 
to assist in the understanding of these regulations and is not intended 
either to limit the meaning of ``occurrence'' in a way that conflicts 
with standard insurance usage or to prevent the use of other standard 
insurance terms in place of ``occurrence.''
    Owner or operator, when the owner or operator are separate parties, 
refers to the party that is obtaining or has obtained financial 
assurances.
    Petroleum marketing facilities include all facilities at which 
petroleum is produced or refined and all facilities from which 
petroleum is sold or transferred to other petroleum marketers or to the 
public.
    Property damage shall have the meaning given this term by 
applicable state law. This term shall not include those liabilities 
which, consistent with standard insurance industry practices,

[[Page 41641]]

are excluded from coverage in liability insurance policies for property 
damage. However, such exclusions for property damage shall not include 
corrective action associated with releases from tanks which are covered 
by the policy.
    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 Sec. Sec.  280.95 through 
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.
    Substantial business relationship means the extent of a business 
relationship necessary under applicable state law to make a guarantee 
contract issued incident to that relationship valid and enforceable. A 
guarantee contract is issued ``incident to that relationship'' if it 
arises from and depends on existing economic transactions between the 
guarantor and the owner or operator.
    Substantial governmental relationship means the extent of a 
governmental relationship necessary under applicable state law to make 
an added guarantee contract issued incident to that relationship valid 
and enforceable. A guarantee contract is issued ``incident to that 
relationship'' if it arises from a clear commonality of interest in the 
event of an UST release such as coterminous boundaries, overlapping 
constituencies, common groundwater aquifer, or other relationship other 
than monetary compensation that provides a motivation for the guarantor 
to provide a guarantee.
    Tangible net worth means the tangible assets that remain after 
deducting liabilities; such assets do not include intangibles such as 
goodwill and rights to patents or royalties. For purposes of this 
definition, ``assets'' means all existing and all probable future 
economic benefits obtained or controlled by a particular entity as a 
result of past transactions.
    Termination under Sec.  280.97(b)(1) and (2) means only those 
changes that could result in a gap in coverage as where the insured has 
not obtained substitute coverage or has obtained substitute coverage 
with a different retroactive date than the retroactive date of the 
original policy.

Sec.  280.93  Amount and scope of required financial responsibility.

    (a) Owners or operators of petroleum underground storage tanks must 
demonstrate financial responsibility for taking corrective action and 
for compensating third parties for bodily injury and property damage 
caused by accidental releases arising from the operation of petroleum 
underground storage tanks in at least the following per-occurrence 
amounts:
    (1) For owners or operators of petroleum underground storage tanks 
that are located at petroleum marketing facilities, or that handle an 
average of more than 10,000 gallons of petroleum per month based on 
annual throughput for the previous calendar year; $1 million.
    (2) For all other owners or operators of petroleum underground 
storage tanks; $500,000.
    (b) Owners or operators of petroleum underground storage tanks must 
demonstrate financial responsibility for taking corrective action and 
for compensating third parties for bodily injury and property damage 
caused by accidental releases arising from the operation of petroleum 
underground storage tanks in at least the following annual aggregate 
amounts:
    (1) For owners or operators of 1 to 100 petroleum underground 
storage tanks, $1 million; and
    (2) For owners or operators of 101 or more petroleum underground 
storage tanks, $2 million.
    (c) For the purposes of paragraphs (b) and (f) of this section, 
only, ``a petroleum underground storage tank'' means a single 
containment unit and does not mean combinations of single containment 
units.
    (d) Except as provided in paragraph (e) of this section, if the 
owner or operator uses separate mechanisms or separate combinations of 
mechanisms to demonstrate financial responsibility for:
    (1) Taking corrective action;
    (2) Compensating third parties for bodily injury and property 
damage caused by sudden accidental releases; or
    (3) Compensating third parties for bodily injury and property 
damage caused by nonsudden accidental releases, the amount of assurance 
provided by each mechanism or combination of mechanisms must be in the 
full amount specified in paragraphs (a) and (b) of this section.
    (e) If an owner or operator uses separate mechanisms or separate 
combinations of mechanisms to demonstrate financial responsibility for 
different petroleum underground storage tanks, the annual aggregate 
required shall be based on the number of tanks covered by each such 
separate mechanism or combination of mechanisms.
    (f) Owners or operators shall review the amount of aggregate 
assurance provided whenever additional petroleum underground storage 
tanks are acquired or installed. If the number of petroleum underground 
storage tanks for which assurance must be provided exceeds 100, the 
owner or operator shall demonstrate financial responsibility in the 
amount of at least $2 million of annual aggregate assurance by the 
anniversary of the date on which the mechanism demonstrating financial 
responsibility became effective. If assurance is being demonstrated by 
a combination of mechanisms, the owner or operator shall demonstrate 
financial responsibility in the amount of at least $2 million of annual 
aggregate assurance by the first-occurring effective date anniversary 
of any one of the mechanisms combined (other than a financial test or 
guarantee) to provide assurance.
    (g) The amounts of assurance required under this section exclude 
legal defense costs.
    (h) The required per-occurrence and annual aggregate coverage 
amounts do not in any way limit the liability of the owner or operator.

Sec.  280.94  Allowable mechanisms and combinations of mechanisms.

    (a) Subject to the limitations of paragraphs (b) and (c) of this 
section:
    (1) An owner or operator, including a local government owner or 
operator, may use any one or combination of the mechanisms listed in 
Sec. Sec.  280.95 through 280.103 to demonstrate financial 
responsibility under this subpart for one or more underground storage 
tanks; and
    (2) A local government owner or operator may use any one or 
combination of the mechanisms listed in Sec. Sec.  280.104 through 
280.107 to demonstrate financial responsibility under this subpart for 
one or more underground storage tanks.
    (b) An owner or operator may use a guarantee under Sec.  280.96 or 
surety bond under Sec.  280.98 to establish financial responsibility 
only if the Attorney(s) General of the state(s) in which the 
underground storage tanks are located has (have) submitted a written 
statement to the implementing agency that a guarantee or surety bond 
executed as described in this section is a legally valid and 
enforceable obligation in that state.
    (c) An owner or operator may use self-insurance in combination with 
a guarantee only if, for the purpose of meeting the requirements of the 
financial test under this rule, the financial statements of the owner 
or operator are not consolidated with the financial statements of the 
guarantor.

Sec.  280.95  Financial test of self-insurance.

    (a) An owner or operator, and/or guarantor, may satisfy the 
requirements

[[Page 41642]]

of Sec.  280.93 by passing a financial test as specified in this 
section. To pass the financial test of self-insurance, the owner or 
operator, and/or guarantor must meet the criteria of paragraph (b) or 
(c) of this section based on year-end financial statements for the 
latest completed fiscal year.
    (b)(1) The owner or operator, and/or guarantor, must have a 
tangible net worth of at least ten times:
    (i) The total of the applicable aggregate amount required by Sec.  
280.93, based on the number of underground storage tanks for which a 
financial test is used to demonstrate financial responsibility to EPA 
under this section or to a state implementing agency under a state 
program approved by EPA under 40 CFR part 281;
    (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
    (iii) The sum of current plugging and abandonment cost estimates 
for which a financial test is used to demonstrate financial 
responsibility to EPA under 40 CFR 144.63 or to a state implementing 
agency under a state program authorized by EPA under 40 CFR part 145.
    (2) The owner or operator, and/or guarantor, must have a tangible 
net worth of at least $10 million.
    (3) The owner or operator, and/or guarantor, must have a letter 
signed by the chief financial officer worded as specified in paragraph 
(d) of this section.
    (4) The owner or operator, and/or guarantor, must either:
    (i) File financial statements annually with the U.S. Securities and 
Exchange Commission, the Energy Information Administration, or the 
Rural Utilities Service; or
    (ii) Report annually the firm's tangible net worth to Dun and 
Bradstreet, and Dun and Bradstreet must have assigned the firm a 
financial strength rating of 4A or 5A.
    (5) The firm's year-end financial statements, if independently 
audited, cannot include an adverse auditor's opinion, a disclaimer of 
opinion, or a ``going concern'' qualification.
    (c)(1) The owner or operator, and/or guarantor must meet the 
financial test requirements of 40 CFR 264.147(f)(1), substituting the 
appropriate amounts specified in Sec.  280.93(b)(1) and (2) for the 
``amount of liability coverage'' each time specified in that section.
    (2) The fiscal year-end financial statements of the owner or 
operator, and/or guarantor, must be examined by an independent 
certified public accountant and be accompanied by the accountant's 
report of the examination.
    (3) The firm's year-end financial statements cannot include an 
adverse auditor's opinion, a disclaimer of opinion, or a ``going 
concern'' qualification.
    (4) The owner or operator, and/or guarantor, must have a letter 
signed by the chief financial officer, worded as specified in paragraph 
(d) of this section.
    (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
    (ii) In connection with that comparison, no matters came to his 
attention which caused him to believe that the specified data should be 
adjusted.
    (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 self-insurance,'' 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 (Sec.  Sec.   264.143 and 265.143)...................        $__
Post-Closure Care (Sec.  Sec.   264.145 and 265.145).........        $__
Liability Coverage (Sec.  Sec.   264.147 and 265.147)........        $__
Corrective Action (Sec.   264.101(b))........................        $__
Plugging and Abandonment (Sec.   144.63).....................        $__
Closure......................................................        $__
Post-Closure Care............................................        $__
Liability Coverage...........................................        $__
Corrective Action............................................        $__
Plugging and Abandonment.....................................        $__
    Total....................................................        $__
 

    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 Sec.  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 Sec.  280.95 are 
being used to demonstrate compliance with the financial test 
requirements.]

[[Page 41643]]

 
                        Alternative I
 
1. Amount of annual UST aggregate coverage being assured by a        $__
 financial test, and/or guarantee............................
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.........
3. Sum of lines 1 and 2......................................        $__
4. Total tangible assets.....................................        $__
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]...............
6. Tangible net worth [subtract line 5 from line 4]..........        $__
 
                                                                  Yes No
7. Is line 6 at least $10 million?...........................        _ _
8. Is line 6 at least 10 times line 3?.......................        _ _
9. Have financial statements for the latest fiscal year been         _ _
 filed with the Securities and Exchange Commission?..........
10. Have financial statements for the latest fiscal year been        _ _
 filed with the Energy Information Administration?...........
11. Have financial statements for the latest fiscal year been        _ _
 filed with the Rural Utilities Service?.....................
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.]....................................
                        Alternative II
1. Amount of annual UST aggregate coverage being assured by a        $__
 test, and/or guarantee......................................
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.........
3. Sum of lines 1 and 2......................................        $__
4. Total tangible assets.....................................        $__
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]...............
6. Tangible net worth [subtract line 5 from line 4]..........        $__
7. Total assets in the U.S. [required only if less than 90           $__
 percent of assets are located in the U.S.]..................
 
                                                                  Yes No
8. Is line 6 at least $10 million?...........................        _ _
                                                                     _ _
9. Is line 6 at least 6 times line 3?........................        _ _
10. Are at least 90 percent of assets located in the U.S.?           _ _
 [If ``No,'' complete line 11.]..............................
11. Is line 7 at least 6 times line 3? [Fill in either lines         _ _
 12-15 or lines 16-18:]......................................
                                                                  Yes No
12. Current assets...........................................        $__
13. Current liabilities......................................        $__
14. Net working capital [subtract line 13 from line 12]......        $__
 
                                                                  Yes No
15. Is line 14 at least 6 times line 3?......................        _ _
16. Current bond rating of most recent bond issue............        _ _
17. Name of rating service...................................        _ _
18. Date of maturity of bond.................................        _ _
19. Have financial statements for the latest fiscal year been        _ _
 filed with the SEC, the Energy Information Administration,
 or the Rural Utilities Service?.............................
 

    [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 280.95(d) as such regulations were 
constituted on the date shown immediately below.

[Signature]
[Name]
[Title]
[Date]

    (e) If an owner or operator using the test to provide financial 
assurance finds that he or she no longer meets the requirements of the 
financial test based on the year-end financial statements, the owner or 
operator must obtain alternative coverage within 150 days of the end of 
the year for which financial statements have been prepared.
    (f) The Director of the implementing agency may require reports of 
financial condition at any time from the owner or operator, and/or 
guarantor. If the Director finds, on the basis of such reports or other 
information, that the owner or operator, and/or guarantor, no longer 
meets the financial test requirements of Sec.  280.95(b) or (c) and 
(d), the owner or operator must obtain alternate coverage within 30 
days after notification of such a finding.
    (g) If the owner or operator fails to obtain alternate assurance 
within 150 days of finding that he or she no longer meets the 
requirements of the financial test based on the year-end financial 
statements, or within 30 days of notification by the Director of the 
implementing agency that he or she no longer meets the requirements of 
the financial test, the owner or operator must notify the Director of 
such failure within 10 days.

Sec.  280.96  Guarantee.

    (a) An owner or operator may satisfy the requirements of Sec.  
280.93 by obtaining a guarantee that conforms to the requirements of 
this section. The guarantor must be:
    (1) A firm that:
    (i) Possesses a controlling interest in the owner or operator;
    (ii) Possesses a controlling interest in a firm described under 
paragraph (a)(1)(i) of this section; or,
    (iii) Is controlled through stock ownership by a common parent firm 
that possesses a controlling interest in the owner or operator; or,
    (2) A firm engaged in a substantial business relationship with the 
owner or operator and issuing the guarantee as an act incident to that 
business relationship.
    (b) Within 120 days of the close of each financial reporting year 
the guarantor must demonstrate that it meets the financial test 
criteria of Sec.  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 Sec.  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 Sec.  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 Sec.  280.114(e).
    (c) The guarantee must be worded as follows, except that 
instructions in brackets are to be replaced with the relevant 
information and the brackets deleted:

[[Page 41644]]

     Guarantee
    Guarantee made this [date] by [name of guaranteeing entity], a 
business entity organized under the laws of the state of [name of 
state], herein referred to as guarantor, to [the state implementing 
agency] and to any and all third parties, and obligees, on behalf of 
[owner or operator] of [business address].
     Recitals.
    (1) Guarantor meets or exceeds the financial test criteria of 40 
CFR 280.95(b) or (c) and (d) and agrees to comply with the requirements 
for guarantors as specified in 40 CFR 280.96(b).
    (2) [Owner or operator] owns or operates the following underground 
storage tank(s) covered by this guarantee: [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.] This 
guarantee satisfies 40 CFR part 280, subpart H requirements for 
assuring funding 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 above-identified underground storage tank(s) in the amount of 
[insert dollar amount] per occurrence and [insert dollar amount] annual 
aggregate.
    (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 above-identified 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 agreement(s) up to the limits of 
coverage specified above.
    (4) Guarantor agrees that if, at the end of any fiscal year before 
cancellation of this guarantee, the guarantor fails to meet the 
financial test criteria of 40 CFR 280.95(b) or (c) and (d), guarantor 
shall send within 120 days of such failure, by certified mail, notice 
to [owner or operator]. The guarantee will terminate 120 days from the 
date of receipt of the notice by [owner or operator], as evidenced by 
the return receipt.
    (5) Guarantor agrees to notify [owner or operator] by certified 
mail of a voluntary or involuntary proceeding under Title 11 
(Bankruptcy), U.S. Code naming guarantor as debtor, within 10 days 
after commencement of the proceeding.
    (6) Guarantor agrees to remain bound under this guarantee 
notwithstanding any modification or alteration of any obligation of 
[owner or operator] pursuant to 40 CFR part 280.
    (7) Guarantor agrees to remain bound under this guarantee for so 
long as [owner or operator] must comply with the applicable financial 
responsibility requirements of 40 CFR part 280, subpart H for the 
above-identified tank(s), except that guarantor may cancel this 
guarantee by sending notice by certified mail to [owner or operator], 
such cancellation to become effective no earlier than 120 days after 
receipt of such notice by [owner or operator], as evidenced by the 
return receipt.
    (8) The guarantor's 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, loaded 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 damage 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.
    (9) Guarantor expressly waives notice of acceptance of this 
guarantee by [the implementing agency], by any or all third parties, or 
by [owner or operator].
    I hereby certify that the wording of this guarantee is identical to 
the wording specified in 40 CFR 280.96(c) as such regulations were 
constituted on the effective date shown immediately below.

Effective date:____________

[Name of guarantor]

[Authorized signature for guarantor]

[Name of person signing]

[Title of person signing]
-----------------------------------------------------------------------

Signature of witness or notary:

    (d) An owner or operator who uses a guarantee to satisfy the 
requirements of Sec.  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 Sec.  280.112. This 
standby trust fund must meet the requirements specified in Sec.  
280.103.

Sec.  280.97  Insurance and risk retention group coverage.

    (a) An owner or operator may satisfy the requirements of Sec.  
280.93 by obtaining liability insurance that conforms to the 
requirements of this section from a qualified insurer or risk

[[Page 41645]]

retention group. Such insurance may be in the form of a separate 
insurance policy or an endorsement to an existing insurance policy.
    (b) Each insurance policy must be amended by an endorsement worded 
as specified in paragraph (b)(1) of this section, or evidenced by a 
certificate of insurance worded as specified in paragraph (b)(2) of 
this section, except that instructions in brackets must be replaced 
with the relevant information and the brackets deleted:

    (1) Endorsement.

Name: [name of each covered location]
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Address: [address of each covered location]
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Policy Number:
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Period of Coverage: [current policy period]
-----------------------------------------------------------------------
-----------------------------------------------------------------------

-----------------------------------------------------------------------
-----------------------------------------------------------------------

Address of [Insurer or Risk Retention Group]:
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Name of Insured:
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Address of Insured:
-----------------------------------------------------------------------
-----------------------------------------------------------------------

     Endorsement:

    1. This endorsement certifies that the policy to which the 
endorsement is attached provides liability insurance covering the 
following underground storage tanks:
    [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.] 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''; in accordance with 
and subject to the limits of liability, exclusions, conditions, and 
other terms of the policy; 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 tank(s) 
identified above.
    The limits of liability are [insert the dollar amount of the ``each 
Occurrence'' and ``annual aggregate'' limits of the Insurer's or 
Group's liability; if the amount of coverage is different for different 
types of coverage or for different underground storage tanks or 
locations, indicate the amount of coverage for each type of coverage 
and/or for each underground storage tank or location], exclusive of 
legal defense costs, which are subject to a separate limit under the 
policy. This coverage is provided under [policy number]. The effective 
date of said policy is [date].
    2. The insurance afforded with respect to such occurrences is 
subject to all of the terms and conditions of the policy; provided, 
however, that any provisions inconsistent with subsections (a) through 
(e) of this Paragraph 2 are hereby amended to conform with subsections 
(a) through (e);
    a. Bankruptcy or insolvency of the insured shall not relieve the 
[``Insurer'' or ``Group''] of its obligations under the policy to which 
this endorsement is attached.
    b. The [``Insurer'' or ``Group''] is liable for the payment of 
amounts within any deductible applicable to the policy to the provider 
of corrective action or a damaged third-party, with a right of 
reimbursement by the insured for any such payment made by the 
[``Insurer'' or ``Group'']. This provision does not apply with respect 
to that amount of any deductible for which coverage is demonstrated 
under another mechanism or combination of mechanisms as specified in 40 
CFR 280.95-280.102 and 280.104-280.107.
    c. Whenever requested by [a Director of an implementing agency], 
the [``Insurer'' or ``Group''] agrees to furnish to [the Director] a 
signed duplicate original of the policy and all endorsements.
    d. Cancellation or any other termination of the insurance by the 
[``Insurer'' or ``Group''], except for non-payment of premium or 
misrepresentation by the insured, will be effective only upon written 
notice and only after the expiration of 60 days after a copy of such 
written notice is received by the insured. Cancellation for non-payment 
of premium or misrepresentation by the insured will be effective only 
upon written notice and only after expiration of a minimum of 10 days 
after a copy of such written notice is received by the insured.

[Insert for claims-made policies:
    e. The insurance covers claims otherwise covered by the policy that 
are reported to the [``Insurer'' or ``Group''] within six months of the 
effective date of cancellation or non-renewal of the policy except 
where the new or renewed policy has the same retroactive date or a 
retroactive date earlier than that of the prior policy, and which arise 
out of any covered occurrence that commenced after the policy 
retroactive date, if applicable, and prior to such policy renewal or 
termination date. Claims reported during such extended reporting period 
are subject to the terms, conditions, limits, including limits of 
liability, and exclusions of the policy.]
    I hereby certify that the wording of this instrument is identical 
to the wording in 40 CFR 280.97(b)(1) and that the [``Insurer'' or 
``Group''] is [``licensed to transact the business of insurance or 
eligible to provide insurance as an excess or surplus lines insurer in 
one or more states''].

[Signature of authorized representative of Insurer or Risk Retention 
Group]
[Name of person signing]
[Title of person signing], Authorized Representative of [name of 
Insurer or Risk Retention Group]

[Address of Representative]

    (2) Certificate of Insurance.

Name: [name of each covered location]
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Address: [address of each covered location]
-----------------------------------------------------------------------
-----------------------------------------------------------------------

Policy Number:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Endorsement (if applicable):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Period of Coverage: [current policy period]
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Name of [Insurer or Risk Retention Group]:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Address of [Insurer or Risk Retention Group]:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Name of Insured:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Address of Insured:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------

     Certification:

    1. [Name of Insurer or Risk Retention Group], [the ``Insurer'' or 
``Group''], as identified above, hereby certifies that it

[[Page 41646]]

has issued liability insurance covering the following underground 
storage tank(s):
    [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.] 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''; in accordance with 
and subject to the limits of liability, exclusions, conditions, and 
other terms of the policy; 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 tank(s) 
identified above.
    The limits of liability are [insert the dollar amount of the ``each 
occurrence'' and ``annual aggregate'' limits of the Insurer's or 
Group's liability; if the amount of coverage is different for different 
types of coverage or for different underground storage tanks or 
locations, indicate the amount of coverage for each type of coverage 
and/or for each underground storage tank or location], exclusive of 
legal defense costs, which are subject to a separate limit under the 
policy. This coverage is provided under [policy number]. The effective 
date of said policy is [date].
    2. The [``Insurer'' or ``Group''] further certifies the following 
with respect to the insurance described in Paragraph 1:
    a. Bankruptcy or insolvency of the insured shall not relieve the 
[``Insurer'' or ``Group''] of its obligations under the policy to which 
this certificate applies.
    b. The [``Insurer'' or ``Group''] is liable for the payment of 
amounts within any deductible applicable to the policy to the provider 
of corrective action or a damaged third-party, with a right of 
reimbursement by the insured for any such payment made by the 
[``Insurer'' or ``Group'']. This provision does not apply with respect 
to that amount of any deductible for which coverage is demonstrated 
under another mechanism or combination of mechanisms as specified in 40 
CFR 280.95-280.102 and 280.104-280.107.
    c. Whenever requested by [a Director of an implementing agency], 
the [``Insurer'' or ``Group''] agrees to furnish to [the Director] a 
signed duplicate original of the policy and all endorsements.
    d. Cancellation or any other termination of the insurance by the 
[``Insurer'' or ``Group''], except for non-payment of premium or 
misrepresentation by the insured, will be effective only upon written 
notice and only after the expiration of 60 days after a copy of such 
written notice is received by the insured. Cancellation for non-payment 
of premium or misrepresentation by the insured will be effective only 
upon written notice and only after expiration of a minimum of 10 days 
after a copy of such written notice is received by the insured.
    [Insert for claims-made policies]:
    e. The insurance covers claims otherwise covered by the policy that 
are reported to the [``Insurer'' or ``Group''] within six months of the 
effective date of cancellation or non-renewal of the policy except 
where the new or renewed policy has the same retroactive date or a 
retroactive date earlier than that of the prior policy, and which arise 
out of any covered occurrence that commenced after the policy 
retroactive date, if applicable, and prior to such policy renewal or 
termination date. Claims reported during such extended reporting period 
are subject to the terms, conditions, limits, including limits of 
liability, and exclusions of the policy.]
    I hereby certify that the wording of this instrument is identical 
to the wording in 40 CFR 280.97(b)(2) and that the [``Insurer'' or 
``Group''] is [``licensed to transact the business of insurance, or 
eligible to provide insurance as an excess or surplus lines insurer, in 
one or more states''].

[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer or Risk 
Retention Group]
[Address of Representative]

    (c) Each insurance policy must be issued by an insurer or a risk 
retention group that, at a minimum, is licensed to transact the 
business of insurance or eligible to provide insurance as an excess or 
surplus lines insurer in one or more states.

Sec.  280.98  Surety bond.

    (a) An owner or operator may satisfy the requirements of Sec.  
280.93 by obtaining a surety bond that conforms to the requirements of 
this section. The surety company issuing the bond must be among those 
listed as acceptable sureties on federal bonds in the latest Circular 
570 of the U.S. Department of the Treasury.
    (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:
-----------------------------------------------------------------------

Period of coverage:
-----------------------------------------------------------------------

Principal: [legal name and business address of owner or operator]
-----------------------------------------------------------------------

Type of organization: [insert ``individual,'' ``joint venture,'' 
``partnership,'' or ``corporation'']
-----------------------------------------------------------------------

State of incorporation (if applicable):
-----------------------------------------------------------------------

Surety(ies): [name(s) and business address(es)]
-----------------------------------------------------------------------

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 $
-----------------------------------------------------------------------

Annual aggregate $
-----------------------------------------------------------------------

Surety's bond number:
-----------------------------------------------------------------------

    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,

[[Page 41647]]

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) identified 
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.
Principal
[Signature(s)]
[Names(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
[State of Incorporation: ____]
[Liability limit: $ ____]
[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: $ ____

    (c) Under the terms of the bond, the surety will become liable on 
the bond obligation when the owner or operator fails to perform as 
guaranteed by the bond. In all cases, the surety's liability is limited 
to the per-occurrence and annual aggregate penal sums.
    (d) The owner or operator who uses a surety bond to satisfy the 
requirements of Sec.  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 Sec.  280.112. This standby trust fund must meet the requirements 
specified in Sec.  280.103.

Sec.  280.99  Letter of credit.

    (a) An owner or operator may satisfy the requirements of Sec.  
280.93 by obtaining an irrevocable standby letter of credit that 
conforms to the requirements of this section. The issuing institution 
must be an entity that has the authority to issue letters of credit in 
each state where used and whose letter-of-credit operations are 
regulated and examined by a federal or state agency.
    (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:

[[Page 41648]]

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. __ 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. __ 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 Sec.  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 Sec.  280.112. This standby trust fund must 
meet the requirements specified in Sec.  280.103.
    (d) The letter of credit must be irrevocable with a term specified 
by the issuing institution. The letter of credit must provide that 
credit be automatically renewed for the same term as the original term, 
unless, at least 120 days before the current expiration date, the 
issuing institution notifies the owner or operator by certified mail of 
its decision not to renew the letter of credit. Under the terms of the 
letter of credit, the 120 days will begin on the date when the owner or 
operator receives the notice, as evidenced by the return receipt.

Sec.  280.100  Use of state-required mechanism.

    (a) For underground storage tanks located in a state that does not 
have an approved program, and where the state requires owners or 
operators of underground storage tanks to demonstrate financial 
responsibility for taking corrective action and/or for compensating 
third parties for bodily injury and property damage, an owner or 
operator may use a state-required financial mechanism to meet the 
requirements of Sec.  280.93 if the Regional Administrator determines 
that the state mechanism is at least equivalent to the financial 
mechanisms specified in this subpart.
    (b) The Regional Administrator will evaluate the equivalency of a 
state-required mechanism principally in terms of: certainty of the 
availability of funds for taking corrective action and/or for 
compensating third parties; the amount of funds that will be made 
available; and the types of costs covered. The Regional Administrator 
may also consider other factors as is necessary.
    (c) The state, an owner or operator, or any other interested party 
may submit to the Regional Administrator a written petition requesting 
that one or more of the state-required mechanisms be considered 
acceptable for meeting the requirements of Sec.  280.93. The submission 
must include copies of the appropriate state statutory and regulatory 
requirements and must show the amount of funds for corrective action 
and/or for compensating third parties assured by the mechanism(s). The 
Regional Administrator may require the petitioner to submit additional 
information as is deemed necessary to make this determination.
    (d) Any petition under this section may be submitted on behalf of 
all of the state's underground storage tank owners and operators.
    (e) The Regional Administrator will notify the petitioner of his 
determination regarding the mechanism's acceptability in lieu of 
financial mechanisms specified in this

[[Page 41649]]

subpart. Pending this determination, the owners and operators using 
such mechanisms will be deemed to be in compliance with the 
requirements of Sec.  280.93 for underground storage tanks located in 
the state for the amounts and types of costs covered by such 
mechanisms.

Sec.  280.101  State fund or other state assurance.

    (a) An owner or operator may satisfy the requirements of Sec.  
280.93 for underground storage tanks located in a state, where EPA is 
administering the requirements of this subpart, which assures that 
monies will be available from a state fund or state assurance program 
to cover costs up to the limits specified in Sec.  280.93 or otherwise 
assures that such costs will be paid if the Regional Administrator 
determines that the state's assurance is at least equivalent to the 
financial mechanisms specified in this subpart.
    (b) The Regional Administrator will evaluate the equivalency of a 
state fund or other state assurance principally in terms of: Certainty 
of the availability of funds for taking corrective action and/or for 
compensating third parties; the amount of funds that will be made 
available; and the types of costs covered. The Regional Administrator 
may also consider other factors as is necessary.
    (c) The state must submit to the Regional Administrator a 
description of the state fund or other state assurance to be supplied 
as financial assurance, along with a list of the classes of underground 
storage tanks to which the funds may be applied. The Regional 
Administrator may require the state to submit additional information as 
is deemed necessary to make a determination regarding the acceptability 
of the state fund or other state assurance. Pending the determination 
by the Regional Administrator, the owner or operator of a covered class 
of USTs will be deemed to be in compliance with the requirements of 
Sec.  280.93 for the amounts and types of costs covered by the 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 Sec.  280.111(b)(8).

Sec.  280.102  Trust fund.

    (a) An owner or operator may satisfy the requirements of Sec.  
280.93 by establishing a trust fund that conforms to the requirements 
of this section. The trustee must be an entity that has the authority 
to act as a trustee and whose trust operations are regulated and 
examined by a federal agency or an agency of the state in which the 
fund is established.
    (b) The wording of the trust agreement must be identical to the 
wording specified in Sec.  280.103(b)(1), and must be accompanied by a 
formal certification of acknowledgement as specified in Sec.  
280.103(b)(2).
    (c) The trust fund, when established, must be funded for the full 
required amount of coverage, or funded for part of the required amount 
of coverage and used in combination with other mechanism(s) that 
provide the remaining required coverage.
    (d) If the value of the trust fund is greater than the required 
amount of coverage, the owner or operator may submit a written request 
to the Director of the implementing agency for release of the excess.
    (e) If other financial assurance as specified in this subpart is 
substituted for all or part of the trust fund, the owner or operator 
may submit a written request to the Director of the implementing agency 
for release of the excess.
    (f) Within 60 days after receiving a request from the owner or 
operator for release of funds as specified in paragraph (d) or (e) of 
this section, the Director of the implementing agency will instruct the 
trustee to release to the owner or operator such funds as the Director 
specifies in writing.

Sec.  280.103  Standby trust fund.

    (a) An owner or operator using any one of the mechanisms authorized 
by Sec. Sec.  280.96, 280.98, or 280.99 must establish a standby trust 
fund when the mechanism is acquired. The trustee of the standby trust 
fund must be an entity that has the authority to act as a trustee and 
whose trust operations are regulated and examined by a Federal agency 
or an agency of the state in which the fund is established.
    (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 ___ '' 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 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 1. Definitions
    As used in this Agreement:
    (a) The term ``Grantor'' means the owner or operator who enters 
into this Agreement and any successors or assigns of the Grantor.
    (b) The term ``Trustee'' means the Trustee who enters into this 
Agreement and any successor Trustee.

[[Page 41650]]

Section 2. Identification of the Financial Assurance Mechanism
    This Agreement pertains to the [identify the financial assurance 
mechanism, either a guarantee, surety bond, or letter of credit, from 
which the standby trust fund is established to receive payments (This 
paragraph is only applicable to the standby trust agreement.)].
Section 3. Establishment of Fund
    The Grantor and the Trustee hereby establish a trust fund, the 
``Fund,'' for the benefit of [implementing agency]. The Grantor and the 
Trustee intend that no third party have access to the Fund except as 
herein provided. [The Fund is established initially as a standby to 
receive payments and shall not consist of any property.] Payments made 
by the provider of financial assurance pursuant to [the Director of the 
implementing agency's] instruction are transferred to the Trustee and 
are referred to as the Fund, together with all earnings and profits 
thereon, less any payments or distributions made by the Trustee 
pursuant to this Agreement. The Fund shall be held by the Trustee, IN 
TRUST, as hereinafter provided. The Trustee shall not be responsible 
nor shall it undertake any responsibility for the amount or adequacy 
of, nor any duty to collect from the Grantor as provider of financial 
assurance, any payments necessary to discharge any liability of the 
Grantor established by [the state implementing agency]
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.
Section 5. Payments Comprising the Fund
    Payments made to the Trustee for the Fund shall consist of cash and 
securities acceptable to the Trustee.
Section 6. Trustee Management
    The Trustee shall invest and reinvest the principal and income of 
the Fund and keep the Fund invested as a single fund, without 
distinction between principal and income, in accordance with general 
investment policies and guidelines which the Grantor may communicate in 
writing to the Trustee from time to time, subject, however, to the 
provisions of this Section. In investing, reinvesting, exchanging, 
selling, and managing the Fund, the Trustee shall discharge his duties 
with respect to the trust fund solely in the interest of the 
beneficiaries and with the care, skill, prudence, and diligence under 
the circumstances then prevailing which persons of prudence, acting in 
a like capacity and familiar with such matters, would use in the 
conduct of an enterprise of a like character and with like aims; except 
that:
    (i) Securities or other obligations of the Grantor, or any other 
owner or operator of the tanks, or any of their affiliates as defined 
in the Investment Company Act of 1940, as amended, 15 U.S.C. 80a-2(a), 
shall not be acquired or held, unless they are securities or other 
obligations of the federal or a state government;
    (ii) The Trustee is authorized to invest the Fund in time or demand 
deposits of the Trustee, to the extent insured by an agency of the 
federal or state government; and
    (iii) The Trustee is authorized to hold cash awaiting investment or 
distribution uninvested for a reasonable time and without liability for 
the payment of interest thereon.
Section 7. Commingling and Investment
    The Trustee is expressly authorized in its discretion:
    (a) To transfer from time to time any or all of the assets of the 
Fund to any common, commingled, or collective trust fund created by the 
Trustee in which the Fund is eligible to participate, subject to all of 
the provisions thereof, to be commingled with the assets of other 
trusts participating therein; and
    (b) To purchase shares in any investment company registered under 
the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq., including 
one which may be created, managed, underwritten, or to which investment 
advice is rendered or the shares of which are sold by the Trustee. The 
Trustee may vote such shares in its discretion.
Section 8. Express Powers of Trustee
    Without in any way limiting the powers and discretions conferred 
upon the Trustee by the other provisions of this Agreement or by law, 
the Trustee is expressly authorized and empowered:
    (a) To sell, exchange, convey, transfer, or otherwise dispose of 
any property held by it, by public or private sale. No person dealing 
with the Trustee shall be bound to see to the application of the 
purchase money or to inquire into the validity or expediency of any 
such sale or other disposition;
    (b) To make, execute, acknowledge, and deliver any and all 
documents of transfer and conveyance and any and all other instruments 
that may be necessary or appropriate to carry out the powers herein 
granted;
    (c) To register any securities held in the Fund in its own name or 
in the name of a nominee and to hold any security in bearer form or in 
book entry, or to combine certificates representing such securities 
with certificates of the same issue held by the Trustee in other 
fiduciary capacities, or to deposit or arrange for the deposit of such 
securities in a qualified central depository even though, when so 
deposited, such securities may be merged and held in bulk in the name 
of the nominee of such depository with other securities deposited 
therein by another person, or

[[Page 41651]]

to deposit or arrange for the deposit of any securities issued by the 
United States Government, or any agency or instrumentality thereof, 
with a Federal Reserve bank, but the books and records of the Trustee 
shall at all times show that all such securities are part of the Fund;
    (d) To deposit any cash in the Fund in interest-bearing accounts 
maintained or savings certificates issued by the Trustee, in its 
separate corporate capacity, or in any other banking institution 
affiliated with the Trustee, to the extent insured by an agency of the 
federal or state government; and
    (e) To compromise or otherwise adjust all claims in favor of or 
against the Fund.
Section 9. Taxes and Expenses
    All taxes of any kind that may be assessed or levied against or in 
respect of the Fund and all brokerage commissions incurred by the Fund 
shall be paid from the Fund. All other expenses incurred by the Trustee 
in connection with the administration of this Trust, including fees for 
legal services rendered to the Trustee, the compensation of the Trustee 
to the extent not paid directly by the Grantor, and all other proper 
charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Advice of Counsel
    The Trustee may from time to time consult with counsel, who may be 
counsel to the Grantor, with respect to any questions arising as to the 
construction of this Agreement or any action to be taken hereunder. The 
Trustee shall be fully protected, to the extent permitted by law, in 
acting upon the advice of counsel.
Section 11. Trustee Compensation
    The Trustee shall be entitled to reasonable compensation for its 
services as agreed upon in writing from time to time with the Grantor.
Section 12. Successor Trustee
    The Trustee may resign or the Grantor may replace the Trustee, but 
such resignation or replacement shall not be effective until the 
Grantor has appointed a successor trustee and this successor accepts 
the appointment. The successor trustee shall have the same powers and 
duties as those conferred upon the Trustee hereunder. Upon the 
successor trustee's acceptance of the appointment, the Trustee shall 
assign, transfer, and pay over to the successor trustee the funds and 
properties then constituting the Fund. If for any reason the Grantor 
cannot or does not act in the event of the resignation of the Trustee, 
the Trustee may apply to a court of competent jurisdiction for the 
appointment of a successor trustee or for instructions. The successor 
trustee shall specify the date on which it assumes administration of 
the trust in writing sent to the Grantor and the present Trustee by 
certified mail 10 days before such change becomes effective. Any 
expenses incurred by the Trustee as a result of any of the acts 
contemplated by this Section shall be paid as provided in Section 9.
Section 13. Instructions to the Trustee
    All orders, requests, and instructions by the Grantor to the 
Trustee shall be in writing, signed by such persons as are designated 
in the attached Schedule B or such other designees as the Grantor may 
designate by amendment to Schedule B. The Trustee shall be fully 
protected in acting without inquiry in accordance with the Grantor's 
orders, requests, and instructions. All orders, requests, and 
instructions by [the Director of the implementing agency] to the 
Trustee shall be in writing, signed by [the Director], and the Trustee 
shall act and shall be fully protected in acting in accordance with 
such orders, requests, and instructions. The Trustee shall have the 
right to assume, in the absence of written notice to the contrary, that 
no event constituting a change or a termination of the authority of any 
person to act on behalf of the Grantor or [the director] hereunder has 
occurred. The Trustee shall have no duty to act in the absence of such 
orders, requests, and instructions from the Grantor and/or [the 
Director], except as provided for herein.
Section 14. Amendment of Agreement
    This Agreement may be amended by an instrument in writing executed 
by the Grantor and the Trustee, or by the Trustee and [the Director of 
the implementing agency] if the Grantor ceases to exist.
Section 15. Irrevocability and Termination
    Subject to the right of the parties to amend this Agreement as 
provided in Section 14, this Trust shall be irrevocable and shall 
continue until terminated at the written direction of the Grantor and 
the Trustee, or by the Trustee and [the Director of the implementing 
agency], if the Grantor ceases to exist. Upon termination of the Trust, 
all remaining trust property, less final trust administration expenses, 
shall be delivered to the Grantor.
Section 16. Immunity and Indemnification
    The Trustee shall not incur personal liability of any nature in 
connection with any act or omission, made in good faith, in the 
administration of this Trust, or in carrying out any directions by the 
Grantor or [the Director of the implementing agency] issued in 
accordance with this Agreement. The Trustee shall be indemnified and 
saved harmless by the Grantor, from and against any personal liability 
to which the Trustee may be subjected by reason of any act or conduct 
in its official capacity, including all expenses reasonably incurred in 
its defense in the event the Grantor fails to provide such defense.
Section 17. Choice of Law
    This Agreement shall be administered, construed, and enforced 
according to the laws of the state of [insert name of state], or the 
Comptroller of the Currency in the case of National Association banks.
Section 18. Interpretation
    As used in this Agreement, words in the singular include the plural 
and words in the plural include the singular. The descriptive headings 
for each section of this Agreement shall not affect the interpretation 
or the legal efficacy of this Agreement.
    In Witness whereof the parties have caused this Agreement to be 
executed by their respective officers duly authorized and their 
corporate seals (if applicable) to be hereunto affixed and attested as 
of the date first above written. The parties below certify that the 
wording of this Agreement is identical to the wording specified in 40 
CFR 280.103(b)(1) as such regulations were constituted on the date 
written above.
[Signature of Grantor]

[Name of the Grantor]

[Title]

Attest:

[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness]
[Name of the Witness]
[Title]
[Seal]

    (2) The standby trust agreement, or trust agreement must be 
accompanied by a formal certification of acknowledgement similar to the 
following. State requirements may differ on the proper content of this 
acknowledgment.

[[Page 41652]]

State of
-----------------------------------------------------------------------

County of
-----------------------------------------------------------------------

    On this [date], before me personally came [owner or operator] to me 
known, who, being by me duly sworn, did depose and say that she/he 
resides at [address], that she/he is [title] of [corporation], the 
corporation described in and which executed the above instrument; that 
she/he knows the seal of said corporation; that the seal affixed to 
such instrument is such corporate seal; that it was so affixed by order 
of the Board of Directors of said corporation; and that she/he signed 
her/his name thereto by like order.

[Signature of Notary Public]
[Name of Notary Public]

    (c) The Director of the implementing agency will instruct the 
trustee to refund the balance of the standby trust fund to the provider 
of financial assurance if the Director determines that no additional 
corrective action costs or third-party liability claims will occur as a 
result of a release covered by the financial assurance mechanism for 
which the standby trust fund was established.
    (d) An owner or operator may establish one trust fund as the 
depository mechanism for all funds assured in compliance with this 
rule.

Sec.  280.104  Local government bond rating test.

    (a) A general purpose local government owner or operator and/or 
local government serving as a guarantor may satisfy the requirements of 
Sec.  280.93 by having a currently outstanding issue or issues of 
general obligation bonds of $1 million or more, excluding refunded 
obligations, with a Moody's rating of Aaa, Aa, A, or Baa, or a Standard 
& Poor's rating of AAA, AA, A, or BBB. Where a local government has 
multiple outstanding issues, or where a local government's bonds are 
rated by both Moody's and Standard and Poor's, the lowest rating must 
be used to determine eligibility. Bonds that are backed by credit 
enhancement other than municipal bond insurance may not be considered 
in determining the amount of applicable bonds outstanding.
    (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 Sec.  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.
    (c) The local government owner or operator and/or guarantor must 
maintain a copy of its bond rating published within the last 12 months 
by Moody's or Standard & Poor's.
    (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:

----------------------------------------------------------------------------------------------------------------
           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 280.104(d) as such regulations were 
constituted on the date shown immediately below.

[Date]

[Signature]

[Name]

[Title]

    (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 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.

[[Page 41653]]

    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:

----------------------------------------------------------------------------------------------------------------
           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 280.104(e) as such regulations were 
constituted on the date shown immediately below.

[Date]

[Signature]

[Name]

[Title]

    (f) The Director of the implementing agency may require reports of 
financial condition at any time from the local government owner or 
operator, and/or local government guarantor. If the Director finds, on 
the basis of such reports or other information, that the local 
government owner or operator, and/or guarantor, no longer meets the 
local government bond rating test requirements of Sec.  280.104, the 
local government owner or operator must obtain alternative coverage 
within 30 days after notification of such a finding.
    (g) If a local government owner or operator using the bond rating 
test to provide financial assurance finds that it no longer meets the 
bond rating test requirements, the local government owner or operator 
must obtain alternative coverage within 150 days of the change in 
status.
    (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.

Sec.  280.105  Local government financial test.

    (a) A local government owner or operator may satisfy the 
requirements of Sec.  280.93 by passing the financial test specified in 
this section. To be eligible to use the financial test, the local 
government owner or operator must have the ability and authority to 
assess and levy taxes or to freely establish fees and charges. To pass 
the local government financial test, the owner or operator must meet 
the criteria of paragraphs (b)(2) and (3) of this section based on 
year-end financial statements for the latest completed fiscal year.
    (b)(1) The local government owner or operator must have the 
following information available, as shown in the year-end financial 
statements for the latest completed fiscal year:
    (i) Total revenues. Consists of the sum of general fund operating 
and non-operating revenues including net local taxes, licenses and 
permits, fines and forfeitures, revenues from use of money and 
property, charges for services, investment earnings, sales (property, 
publications, etc.), intergovernmental revenues (restricted and 
unrestricted), and total 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. For purposes of this test, the calculation of total revenues 
shall exclude all transfers between funds under the direct control of 
the local government using the financial test (interfund transfers), 
liquidation of investments, and issuance of debt.
    (ii) Total expenditures. Consists of the sum of general fund 
operating and non-operating expenditures including public safety, 
public utilities, transportation, public works, environmental 
protection, cultural and recreational, community development, revenue 
sharing, employee benefits and compensation, office management, 
planning and zoning, capital projects, 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. For purposes of this test, the 
calculation of total expenditures shall exclude all transfers between 
funds under the direct control of the local government using the 
financial test (interfund transfers).
    (iii) Local revenues. Consists of total revenues (as defined in 
paragraph (b)(1)(i) of this section) minus the sum of all transfers 
from other governmental entities, including all monies received from 
Federal, state, or local government sources.
    (iv) Debt service. Consists of the sum of all interest and 
principal payments on all long-term credit obligations and all 
interest-bearing short-term credit obligations. Includes interest and 
principal payments on general obligation bonds, revenue bonds, notes, 
mortgages, judgments, and interest bearing warrants. Excludes payments 
on non-interest-bearing short-term obligations, interfund obligations, 
amounts owed in a trust or agency capacity, and advances and contingent 
loans from other governments.
    (v) Total funds. Consists of the sum of cash and investment 
securities from all funds, including general, enterprise, debt service, 
capital projects, and special revenue funds, but excluding employee 
retirement funds, at the end of the local government's financial 
reporting year. Includes Federal securities, Federal agency securities, 
state and local government securities, and other securities such as 
bonds, notes and mortgages. For purposes of this test, the calculation 
of total funds shall exclude agency funds, private trust funds, 
accounts receivable, value of real property, and other non-security 
assets.
    (vi) Population consists of the number of people in the area served 
by the local government.
    (2) The local government's year-end financial statements, if 
independently audited, cannot include an adverse auditor's opinion or a 
disclaimer of opinion. The local government cannot have outstanding 
issues of general obligation or revenue bonds that are rated as less 
than investment grade.

[[Page 41654]]

    (3) The local government owner or operator must have a letter 
signed by the chief financial officer worded as specified in paragraph 
(c) of this section.
    (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 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)

    Value of revenues excludes liquidation of investments and issuance 
of debt. Value includes all general fund operating and non-operating 
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)
c. Total Revenues (dollars)
2. Total Expenditures
a. Expenditures (dollars)

    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)

____
c. Total Expenditures (dollars)
3. Local Revenues

a. Total Revenues (from 1c) (dollars)____

b. Subtract total intergovernmental transfers (dollars)____

c. Local Revenues (dollars)____
4. Debt Service

a. Interest and fiscal charges (dollars) ____

b. Add debt retirement (dollars)____

c. Total Debt Service (dollars)____
5. Total Funds (Dollars)____ (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)____
Part II: Application of Test
7. Total Revenues to Population

a. Total Revenues (from 1c)____

b. Population (from 6)____

c. Divide 7a by 7b____

d. Subtract 417____

e. Divide by 5,212____

f. Multiply by 4.095____
8. Total Expenses to Population

a. Total Expenses (from 2c)____

b. Population (from 6) ____

c. Divide 8a by 8b____

d. Subtract 524____

e. Divide by 5,401____

f. Multiply by 4.095____
9. Local Revenues to Total Revenues

a. Local Revenues (from 3c)____

b. Total Revenues (from 1c)____

c. Divide 9a by 9b____

d. Subtract .695____

e. Divide by .205____

f. Multiply by 2.840____
10. Debt Service to Population

a. Debt Service (from 4c)____

b. Population (from 6)____

c. Divide 10a by 10b____

d. Subtract 51____

e. Divide by 1,038____

f. Multiply by -1.866____
11. Debt Service to Total Revenues

a. Debt Service (from 4c)____

b. Total Revenues (from 1c)____

c. Divide 11a by 11b____

d. Subtract .068____

e. Divide by .259____

f. Multiply by -3.533____
12. Total Revenues to Total Expenses

a. Total Revenues (from 1c)____

b. Total Expenses (from 2c)____

c. Divide 12a by 12b____

d. Subtract .910____

e. Divide by .899____

f. Multiply by 3.458____
13. Funds Balance to Total Revenues

a. Total Funds (from 5)____

b. Total Revenues (from 1c)____

c. Divide 13a by 13b____

d. Subtract .891____

e. Divide by 9.156____

f. Multiply by 3.270____
14. Funds Balance to Total Expenses

a. Total Funds (from 5)____

b. Total Expenses (from 2c)____

c. Divide 14a by 14b____

d. Subtract .866____

e. Divide by 6.409____

f. Multiply by 3.270____
15. Total Funds to Population____

a. Total Funds (from 5)____

b. Population (from 6)____

c. Divide 15a by 15b____

d. Subtract 270____

e. Divide by 4,548____

f. Multiply by 1.866____
16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f + 15f + 4.937____
    I hereby certify that the financial index shown on line 16 of the 
worksheet is greater than zero and that

[[Page 41655]]

the wording of this letter is identical to the wording specified in 40 
CFR 280.105(c) as such regulations were constituted on the date shown 
immediately below.

[Date]
[Signature]
[Name]
[Title]

    (d) If a local government owner or operator using the test to 
provide financial assurance finds that it no longer meets the 
requirements of the financial test based on the year-end financial 
statements, the owner or operator must obtain alternative coverage 
within 150 days of the end of the year for which financial statements 
have been prepared.
    (e) The Director of the implementing agency may require reports of 
financial condition at any time from the local government owner or 
operator. If the Director finds, on the basis of such reports or other 
information, that the local government owner or operator no longer 
meets the financial test requirements of Sec.  280.105(b) and (c), the 
owner or operator must obtain alternate coverage within 30 days after 
notification of such a finding.
    (f) 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 financial test based on the year-end financial 
statements or within 30 days of notification by the Director of the 
implementing agency that it no longer meets the requirements of the 
financial test, the owner or operator must notify the Director of such 
failure within 10 days.

Sec.  280.106  Local government guarantee.

    (a) A local government owner or operator may satisfy the 
requirements of Sec.  280.93 by obtaining a guarantee that conforms to 
the requirements of this section. The guarantor must be either the 
state in which the local government owner or operator is located or a 
local government having a ``substantial governmental relationship'' 
with the owner and operator and issuing the guarantee as an act 
incident to that relationship. A local government acting as the 
guarantor must:
    (1) Demonstrate that it meets the bond rating test requirement of 
Sec.  280.104 and deliver a copy of the chief financial officer's 
letter as contained in Sec.  280.104(d) and (e) to the local government 
owner or operator; or
    (2) Demonstrate that it meets the worksheet test requirements of 
Sec.  280.105 and deliver a copy of the chief financial officer's 
letter as contained in Sec.  280.105(c) to the local government owner 
or operator; or
    (3) Demonstrate that it meets the local government fund 
requirements of Sec.  280.107(a), (b), or (c) and deliver a copy of the 
chief financial officer's letter as contained in Sec.  280.107 to the 
local government owner or operator.
    (b) If the local government guarantor is unable to demonstrate 
financial assurance under any of Sec. Sec.  280.104, 280.105, or 
280.107(a), (b), or (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 Sec.  280.114(e).
    (c) The guarantee agreement must be worded as specified in 
paragraph (d) or (e) of this section, depending on which of the 
following alternative guarantee arrangements is selected:
    (1) If, in the default or incapacity of the owner or operator, the 
guarantor guarantees to fund a standby trust as directed by the 
Director of the implementing agency, the guarantee shall be worded as 
specified in paragraph (d) of this section.
    (2) If, in the default or incapacity of the owner or operator, the 
guarantor guarantees to make payments as directed by the Director of 
the implementing agency for taking corrective action or compensating 
third parties for bodily injury and property damage, the guarantee 
shall be worded as specified in paragraph (e) of this section.
    (d) If the guarantor is a state, the local government guarantee 
with standby trust must be worded exactly as follows, except that 
instructions in brackets are to be replaced with relevant information 
and the brackets deleted:
Local Government Guarantee With Standby Trust Made by a State
    Guarantee made this [date] by [name of state], herein referred to 
as guarantor, to [the state implementing agency] and to any and all 
third parties, and obliges, on behalf of [local government owner or 
operator].
Recitals
    (1) Guarantor is a state.
    (2) [Local government owner or operator] owns or operates the 
following underground storage tank(s) covered by this guarantee: [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 part 
280 or the corresponding state requirement, and the name and address of 
the facility.] This guarantee satisfies 40 CFR part 280, subpart H 
requirements for assuring funding 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 above-identified underground storage tank(s) in the 
amount of [insert dollar amount] per occurrence and [insert dollar 
amount] annual aggregate.
    (3) Guarantor guarantees to [implementing agency] and to any and 
all third parties that:
    In the event that [local government 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 [local government 
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 fund 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 above-identified 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

[[Page 41656]]

of 40 CFR 280.112 to satisfy such judgment(s), award(s), or settlement 
agreement(s) up to the limits of coverage specified above.
    (4) Guarantor agrees to notify [owner or operator] by certified 
mail of a voluntary or involuntary proceeding under Title 11 
(Bankruptcy), U.S. Code naming guarantor as debtor, within 10 days 
after commencement of the proceeding.
    (5) Guarantor agrees to remain bound under this guarantee 
notwithstanding any modification or alteration of any obligation of 
[owner or operator] pursuant to 40 CFR part 280.
    (6) Guarantor agrees to remain bound under this guarantee for so 
long as [local government owner or operator] must comply with the 
applicable financial responsibility requirements of 40 CFR part 280, 
subpart H for the above identified tank(s), except that guarantor may 
cancel this guarantee by sending notice by certified mail to [owner or 
operator], such cancellation to become effective no earlier than 120 
days after receipt of such notice by [owner or operator], as evidenced 
by the return receipt.
    (7) The guarantor's obligation does not apply to any of the 
following:
    (a) Any obligation of [local government 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: local government owner 
or operator] arising from, and in the course of, employment by [insert: 
local government 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: local 
government owner or operator] that is not the direct result of a 
release from a petroleum underground storage tank;
    (e) Bodily damage 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.
    (8) Guarantor expressly waives notice of acceptance of this 
guarantee by [the implementing agency], by any or all third parties, or 
by [local government owner or operator],
    I hereby certify that the wording of this guarantee is identical to 
the wording specified in 40 CFR 280.106(d) as such regulations were 
constituted on the effective date shown immediately below.

Effective date:

[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:

    If the guarantor is a local government, the local government 
guarantee with standby trust must be worded exactly as follows, except 
that instructions in brackets are to be replaced with relevant 
information and the brackets deleted:
Local Government Guarantee With Standby Trust Made by a Local 
Government
    Guarantee made this [date] by [name of guaranteeing entity], a 
local government organized under the laws of [name of state], herein 
referred to as guarantor, to [the state implementing agency] and to any 
and all third parties, and obliges, on behalf of [local government 
owner or operator].
Recitals
    (1) Guarantor meets or exceeds [select one: the local government 
bond rating test requirements of 40 CFR 280.104, the local government 
financial test requirements of 40 CFR 280.105, or the local government 
fund under 40 CFR 280.107(a), 280.107(b), or 280.107(c)].
    (2) [Local government owner or operator] owns or operates the 
following underground storage tank(s) covered by this guarantee: [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 part 
280 or the corresponding state requirement, and the name and address of 
the facility.] This guarantee satisfies 40 CFR part 280, subpart H 
requirements for assuring funding 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 above-identified underground storage tank(s) in the 
amount of [insert dollar amount] per occurrence and [insert: dollar 
amount] annual aggregate.
    (3) Incident to our substantial governmental relationship with 
[local government owner or operator], guarantor guarantees to 
[implementing agency] and to any and all third parties that:
    In the event that [local government 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 [local government 
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 fund 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 above-identified 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 agreement(s) up to the limits of 
coverage specified above.
    (4) Guarantor agrees that, if at the end of any fiscal year before 
cancellation of this guarantee, the guarantor fails to meet or exceed 
the requirements of the financial responsibility mechanism specified in 
paragraph (1), guarantor shall send within 120 days of such failure, by 
certified mail, notice to [local government owner or operator], as 
evidenced by the return receipt.
    (5) Guarantor agrees to notify [owner or operator] by certified 
mail of a voluntary or involuntary proceeding under Title 11 
(Bankruptcy), U.S. Code naming guarantor as debtor, within 10 days 
after commencement of the proceeding.
    (6) Guarantor agrees to remain bound under this guarantee 
notwithstanding any modification or alteration of any

[[Page 41657]]

obligation of [owner or operator] pursuant to 40 CFR part 280.
    (7) Guarantor agrees to remain bound under this guarantee for so 
long as [local government owner or operator] must comply with the 
applicable financial responsibility requirements of 40 CFR part 280, 
subpart H for the above identified tank(s), except that guarantor may 
cancel this guarantee by sending notice by certified mail to [owner or 
operator], such cancellation to become effective no earlier than 120 
days after receipt of such notice by [owner or operator], as evidenced 
by the return receipt.
    (8) The guarantor's obligation does not apply to any of the 
following:
    (a) Any obligation of [local government 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: local government owner 
or operator] arising from, and in the course of, employment by [insert: 
local government 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: local 
government owner or operator] that is not the direct result of a 
release from a petroleum underground storage tank;
    (e) Bodily damage 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.
    (9) Guarantor expressly waives notice of acceptance of this 
guarantee by [the implementing agency], by any or all third parties, or 
by [local government owner or operator].
    I hereby certify that the wording of this guarantee is identical to 
the wording specified in 40 CFR 280.106(d) as such regulations were 
constituted on the effective date shown immediately below.
Effective date:

[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:

    (e) If the guarantor is a state, the local government guarantee 
without standby trust must be worded exactly as follows, except that 
instructions in brackets are to be replaced with relevant information 
and the brackets deleted:
Local Government Guarantee Without Standby Trust Made by a State
    Guarantee made this [date] by [name of state], herein referred to 
as guarantor, to [the state implementing agency] and to any and all 
third parties, and obliges, on behalf of [local government owner or 
operator].
Recitals
    (1) Guarantor is a state.
    (2) [Local government owner or operator] owns or operates the 
following underground storage tank(s) covered by this guarantee: [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 part 
280 or the corresponding state requirement, and the name and address of 
the facility.] This guarantee satisfies 40 CFR part 280, subpart H 
requirements for assuring funding 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 above-identified underground storage tank(s) in the 
amount of [insert: dollar amount] per occurrence and [insert: dollar 
amount] annual aggregate.
    (3) Guarantor guarantees to [implementing agency] and to any and 
all third parties and obliges that:
    In the event that [local government 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 
written instructions from the [Director] shall make funds available to 
pay for corrective actions and compensate third parties for bodily 
injury and property damage in an amount not to exceed the coverage 
limits specified above.
    In the event that the [Director] determines that [local government 
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 make funds available to pay for 
corrective actions 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 above-identified 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 make funds available to 
compensate third parties for bodily injury and property damage in an 
amount not to exceed the coverage limits specified above.
    (4) Guarantor agrees to notify [owner or operator] by certified 
mail of a voluntary or involuntary proceeding under Title 11 
(Bankruptcy), U.S. Code naming guarantor as debtor, within 10 days 
after commencement of the proceeding.
    (5) Guarantor agrees to remain bound under this guarantee 
notwithstanding any modification or alteration of any obligation of 
[owner or operator] pursuant to 40 CFR part 280.
    (6) Guarantor agrees to remain bound under this guarantee for so 
long as [local government owner or operator] must comply with the 
applicable financial responsibility requirements of 40 CFR part 280, 
subpart H for the above identified tank(s), except that guarantor may 
cancel this guarantee by sending notice by certified mail to [owner or 
operator], such cancellation to become effective no earlier than 120 
days after receipt of such notice by [owner or operator], as evidenced 
by the return receipt. If notified of a probable release, the guarantor 
agrees to remain bound to the terms of this guarantee for all charges 
arising from the release, up to the coverage limits specified above, 
notwithstanding the cancellation of the guarantee with respect to 
future releases.
    (7) The guarantor's obligation does not apply to any of the 
following:
    (a) Any obligation of [local government 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 local government owner 
or operator] arising from, and in the course of, employment by [insert: 
local government owner or operator];

[[Page 41658]]

    (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: local 
government owner or operator] that is not the direct result of a 
release from a petroleum underground storage tank;
    (e) Bodily damage 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.
    (8) Guarantor expressly waives notice of acceptance of this 
guarantee by [the implementing agency], by any or all third parties, or 
by [local government owner or operator].
    I hereby certify that the wording of this guarantee is identical to 
the wording specified in 40 CFR 280.106(e) as such regulations were 
constituted on the effective date shown immediately below.

Effective date:

[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
    If the guarantor is a local government, the local government 
guarantee without standby trust must be worded exactly as follows, 
except that instructions in brackets are to be replaced with relevant 
information and the brackets deleted:
Local Government Guarantee Without Standby Trust Made by a Local 
Government
    Guarantee made this [date] by [name of guaranteeing entity], a 
local government organized under the laws of [name of state], herein 
referred to as guarantor, to [the state implementing agency] and to any 
and all third parties, and obliges, on behalf of [local government 
owner or operator].
Recitals
    (1) Guarantor meets or exceeds [select one: the local government 
bond rating test requirements of 40 CFR 280.104, the local government 
financial test requirements of 40 CFR 280.105, the local government 
fund under 40 CFR 280.107(a), 280.107(b), or 280.107(c)].
    (2) [Local government owner or operator] owns or operates the 
following underground storage tank(s) covered by this guarantee: [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 part 
280 or the corresponding state requirement, and the name and address of 
the facility.] This guarantee satisfies 40 CFR part 280, subpart H 
requirements for assuring funding 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 above-identified underground storage tank(s) in the 
amount of [insert: dollar amount] per occurrence and [insert: dollar 
amount] annual aggregate.
    (3) Incident to our substantial governmental relationship with 
[local government owner or operator], guarantor guarantees to 
[implementing agency] and to any and all third parties and obliges 
that:
    In the event that [local government 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 
written instructions from the [Director] shall make funds available to 
pay for corrective actions and compensate third parties for bodily 
injury and property damage in an amount not to exceed the coverage 
limits specified above.
    In the event that the [Director] determines that [local government 
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 make funds available to pay for 
corrective actions 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 above-identified 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 make funds available to 
compensate third parties for bodily injury and property damage in an 
amount not to exceed the coverage limits specified above.
    (4) Guarantor agrees that if at the end of any fiscal year before 
cancellation of this guarantee, the guarantor fails to meet or exceed 
the requirements of the financial responsibility mechanism specified in 
paragraph (1), guarantor shall send within 120 days of such failure, by 
certified mail, notice to [local government owner or operator], as 
evidenced by the return receipt.
    (5) Guarantor agrees to notify [owner or operator] by certified 
mail of a voluntary or involuntary proceeding under Title 11 
(Bankruptcy), U.S. Code naming guarantor as debtor, within 10 days 
after commencement of the proceeding.
    (6) Guarantor agrees to remain bound under this guarantee 
notwithstanding any modification or alteration of any obligation of 
[owner or operator] pursuant to 40 CFR part 280.
    (7) Guarantor agrees to remain bound under this guarantee for so 
long as [local government owner or operator] must comply with the 
applicable financial responsibility requirements of 40 CFR part 280, 
subpart H for the above identified tank(s), except that guarantor may 
cancel this guarantee by sending notice by certified mail to [owner or 
operator], such cancellation to become effective no earlier than 120 
days after receipt of such notice by [owner or operator], as evidenced 
by the return receipt. If notified of a probable release, the guarantor 
agrees to remain bound to the terms of this guarantee for all charges 
arising from the release, up to the coverage limits specified above, 
notwithstanding the cancellation of the guarantee with respect to 
future releases.
    (8) The guarantor's obligation does not apply to any of the 
following:
    (a) Any obligation of [local government 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: local government owner 
or operator] arising from, and in the course of, employment by [insert: 
local government 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,

[[Page 41659]]

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) Bodily damage 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.
    (9) Guarantor expressly waives notice of acceptance of this 
guarantee by [the implementing agency], by any or all third parties, or 
by [local government owner or operator],
    I hereby certify that the wording of this guarantee is identical to 
the wording specified in 40 CFR 280.106(e) as such regulations were 
constituted on the effective date shown immediately below.

Effective date:

[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:

Sec.  280.107  Local government fund.

    A local government owner or operator may satisfy the requirements 
of Sec.  280.93 by establishing a dedicated fund account that conforms 
to the requirements of this section. Except as specified in paragraph 
(b) of this section, a dedicated fund may not be commingled with other 
funds or otherwise used in normal operations. A dedicated fund will be 
considered eligible if it meets one of the following requirements:
    (a) The fund is dedicated by state constitutional provision, or 
local government statute, charter, ordinance, or order to pay for 
taking corrective action and for compensating third parties for bodily 
injury and property damage caused by accidental releases arising from 
the operation of petroleum underground storage tanks and is funded for 
the full amount of coverage required under Sec.  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
    (b) The fund is dedicated by state constitutional provision, or 
local government statute, charter, ordinance, or order as a contingency 
fund for general emergencies, including taking corrective action and 
compensating third parties for bodily injury and property damage caused 
by accidental releases arising from the operation of petroleum 
underground storage tanks, and is funded for five times the full amount 
of coverage required under Sec.  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. If the fund is funded 
for less than five times the amount of coverage required under Sec.  
280.93, the amount of financial responsibility demonstrated by the fund 
may not exceed one-fifth the amount in the fund; or
    (c) The fund is dedicated by state constitutional provision, or 
local government statute, charter, ordinance or order to pay for taking 
corrective action and for compensating third parties for bodily injury 
and property damage caused by accidental releases arising from the 
operation of petroleum underground storage tanks. A payment is made to 
the fund once every year for seven years until the fund is fully-
funded. This seven year period is hereafter referred to as the ``pay-
in-period.'' The amount of each payment must be determined by this 
formula:
[GRAPHIC] [TIFF OMITTED] TR15JY15.042

Where TF is the total required financial assurance for the owner or 
operator, CF is the current amount in the fund, and Y is the number of 
years remaining in the pay-in-period; and,
    (1) The local government owner or operator has available bonding 
authority, approved through voter referendum (if such approval is 
necessary prior to the issuance of bonds), for an amount equal to the 
difference between the required amount of coverage and the amount held 
in the dedicated fund. This bonding authority shall be available for 
taking corrective action and for compensating third parties for bodily 
injury and property damage caused by accidental releases arising from 
the operation of petroleum underground storage tanks; or
    (2) The local government owner or operator has a letter signed by 
the appropriate state attorney general stating that 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. The 
letter must also state that prior voter approval is not necessary 
before use of the bonding authority.
    (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 Sec.  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 Sec.  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):
    [If fund balance is incrementally funded as specified in Sec.  
280.107(c), insert:

[[Page 41660]]

Amount added to fund in the most recently completed fiscal year:

Number of years remaining in the pay-in-period: ____]

    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]

Sec.  280.108  Substitution of financial assurance mechanisms by owner 
or operator.

    (a) An owner or operator may substitute any alternate financial 
assurance mechanisms as specified in this subpart, provided that at all 
times he maintains an effective financial assurance mechanism or 
combination of mechanisms that satisfies the requirements of Sec.  
280.93.
    (b) After obtaining alternate financial assurance as specified in 
this subpart, an owner or operator may cancel a financial assurance 
mechanism by providing notice to the provider of financial assurance.

Sec.  280.109  Cancellation or nonrenewal by a provider of financial 
assurance.

    (a) Except as otherwise provided, a provider of financial assurance 
may cancel or fail to renew an assurance mechanism by sending a notice 
of termination by certified mail to the owner or operator.
    (1) Termination of a local government guarantee, a guarantee, a 
surety bond, or a letter of credit may not occur until 120 days after 
the date on which the owner or operator receives the notice of 
termination, as evidenced by the return receipt.
    (2) Termination of insurance or risk retention coverage, except for 
non-payment or misrepresentation by the insured, or state-funded 
assurance may not occur until 60 days after the date on which the owner 
or operator receives the notice of termination, as evidenced by the 
return receipt. Termination for non-payment of premium or 
misrepresentation by the insured may not occur until a minimum of 10 
days after the date on which the owner or operator receives the notice 
of termination, as evidenced by the return receipt.
    (b) If a provider of financial responsibility cancels or fails to 
renew for reasons other than incapacity of the provider as specified in 
Sec.  280.114, the owner or operator must obtain alternate coverage as 
specified in this section within 60 days after receipt of the notice of 
termination. If the owner or operator fails to obtain alternate 
coverage within 60 days after receipt of the notice of termination, the 
owner or operator must notify the Director of the implementing agency 
of such failure and submit:
    (1) The name and address of the provider of financial assurance;
    (2) The effective date of termination; and
    (3) The evidence of the financial assistance mechanism subject to 
the termination maintained in accordance with Sec.  280.111(b).

Sec.  280.110  Reporting by owner or operator.

    (a) An owner or operator must submit the appropriate forms listed 
in Sec.  280.111(b) documenting current evidence of financial 
responsibility to the Director of the implementing agency:
    (1) Within 30 days after the owner or operator identifies a release 
from an underground storage tank required to be reported under Sec.  
280.53 or Sec.  280.61;
    (2) If the owner or operator fails to obtain alternate coverage as 
required by this subpart, within 30 days after the owner or operator 
receives notice of:
    (i) Commencement of a voluntary or involuntary proceeding under 
Title 11 (Bankruptcy), U.S. Code, naming a provider of financial 
assurance as a debtor;
    (ii) Suspension or revocation of the authority of a provider of 
financial assurance to issue a financial assurance mechanism;
    (iii) Failure of a guarantor to meet the requirements of the 
financial test;
    (iv) Other incapacity of a provider of financial assurance; or
    (3) As required by Sec. Sec.  280.95(g) and 280.109(b).
    (b) An owner or operator must certify compliance with the financial 
responsibility requirements of this part as specified in the new tank 
notification form when notifying the appropriate state or local agency 
of the installation of a new underground storage tank under Sec.  
280.22.
    (c) The Director of the Implementing Agency may require an owner or 
operator to submit evidence of financial assurance as described in 
Sec.  280.111(b) or other information relevant to compliance with this 
subpart at any time.

Sec.  280.111  Recordkeeping.

    (a) Owners or operators must maintain evidence of all financial 
assurance mechanisms used to demonstrate financial responsibility under 
this subpart for an underground storage tank until released from the 
requirements of this subpart under Sec.  208.113. An owner or operator 
must maintain such evidence at the underground storage tank site or the 
owner's or operator's place of work. Records maintained off-site must 
be made available upon request of the implementing agency.
    (b) An owner or operator must maintain the following types of 
evidence of financial responsibility:
    (1) An owner or operator using an assurance mechanism specified in 
Sec. Sec.  280.95 through 280.100 or Sec.  280.102 or Sec. Sec.  
280.104 through 280.107 must maintain a copy of the instrument worded 
as specified.
    (2) An owner or operator using a financial test or guarantee, or a 
local government financial test or a local government guarantee 
supported by the local government financial test must maintain a copy 
of the chief financial officer's letter based on year-end financial 
statements for the most recent completed financial reporting year. Such 
evidence must be on file no later than 120 days after the close of the 
financial reporting year.
    (3) An owner or operator using a guarantee, surety bond, or letter 
of credit must maintain a copy of the signed standby trust fund 
agreement and copies of any amendments to the agreement.
    (4) A local government owner or operator using a local government 
guarantee under Sec.  280.106(d) must maintain a copy of the signed 
standby trust fund agreement and copies of any amendments to the 
agreement.
    (5) A local government owner or operator using the local government 
bond rating test under Sec.  280.104 must maintain a copy of its bond 
rating published within the last twelve months by Moody's or Standard & 
Poor's.
    (6) A local government owner or operator using the local government 
guarantee under Sec.  280.106, where the guarantor's demonstration of 
financial responsibility relies on the bond rating test under Sec.  
280.104 must maintain a copy of the guarantor's bond rating published 
within the last twelve months by Moody's or Standard & Poor's.
    (7) An owner or operator using an insurance policy or risk 
retention group coverage must maintain a copy of the signed insurance 
policy or risk retention group coverage policy, with the endorsement or 
certificate of insurance and any amendments to the agreements.
    (8) An owner or operator covered by a state fund or other state 
assurance must maintain on file a copy of any

[[Page 41661]]

evidence of coverage supplied by or required by the state under Sec.  
280.101(d).
    (9) An owner or operator using a local government fund under Sec.  
280.107 must maintain the following documents:
    (i) A copy of the state constitutional provision or local 
government statute, charter, ordinance, or order dedicating the fund; 
and
    (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 Sec.  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 Sec.  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 Sec.  
280.107(c)(1)), or attestation by the State Attorney General as 
specified under Sec.  280.107(c)(2).
    (10) A local government owner or operator using the local 
government guarantee supported by the local government fund must 
maintain a copy of the guarantor's year-end financial statements for 
the most recent completed financial reporting year showing the amount 
of the fund.
    (11)(i) An owner or operator using an assurance mechanism specified 
in Sec. Sec.  280.95 through 280.107 must maintain an updated copy of a 
certification of financial responsibility worded as follows, except 
that instructions in brackets are to be replaced with the relevant 
information and the brackets deleted:
     Certification of Financial Responsibility
    [Owner or operator] hereby certifies that it is in compliance with 
the requirements of subpart H of 40 CFR part 280.
    The financial assurance mechanism(s) used to demonstrate financial 
responsibility under subpart H of 40 CFR part 280 is (are) as follows:
    [For each mechanism, list the type of mechanism, name of issuer, 
mechanism number (if applicable), amount of coverage, effective period 
of coverage and whether the mechanism covers ``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.'']

[Signature of owner or operator]
[Name of owner or operator]
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]

    (ii) The owner or operator must update this certification whenever 
the financial assurance mechanism(s) used to demonstrate financial 
responsibility change(s).

Sec.  280.112  Drawing on financial assurance mechanisms.

    (a) Except as specified in paragraph (d) of this section, the 
Director of the implementing agency shall require the guarantor, 
surety, or institution issuing a letter of credit to place the amount 
of funds stipulated by the Director, up to the limit of funds provided 
by the financial assurance mechanism, into the standby trust if:
    (1)(i) The owner or operator fails to establish alternate financial 
assurance within 60 days after receiving notice of cancellation of the 
guarantee, surety bond, letter of credit, or, as applicable, other 
financial assurance mechanism; and
    (ii) The Director determines or suspects that a release from an 
underground storage tank covered by the mechanism has occurred and so 
notifies the owner or operator or the owner or operator has notified 
the Director pursuant to subparts E or F of a release from an 
underground storage tank covered by the mechanism; or
    (2) The conditions of paragraph (b)(1) or (b)(2)(i) or (ii) of this 
section are satisfied.
    (b) The Director of the implementing agency may draw on a standby 
trust fund when:
    (1) The Director makes a final determination that a release has 
occurred and immediate or long-term corrective action for the release 
is needed, and the owner or operator, after appropriate notice and 
opportunity to comply, has not conducted corrective action as required 
under subpart F of this part; or
    (2) The Director has received either:
    (i) Certification from the owner or operator and the third-party 
liability claimant(s) and from attorneys representing the owner or 
operator and the third-party liability claimant(s) that a third-party 
liability claim should be paid. The certification must be worded as 
follows, except that instructions in brackets are to be replaced with 
the relevant information and the brackets deleted:
     Certification of Valid Claim
    The undersigned, as principals and as legal representatives of 
[insert: owner or operator] and [insert: name and address of third-
party claimant], hereby certify that the claim of bodily injury [and/
or] property damage caused by an accidental release arising from 
operating [owner's or operator's] underground storage tank should be 
paid in the amount of $[_].

[Signatures]
Owner or Operator
Attorney for Owner or Operator
(Notary)
Date
[Signatures]
Claimant(s)
Attorney(s) for Claimant(s)
(Notary)
Date
or
    (ii) A valid final court order establishing a judgment against the 
owner or operator for bodily injury or property damage caused by an 
accidental release from an underground storage tank covered by 
financial assurance under this subpart and the Director determines that 
the owner or operator has not satisfied the judgment.
    (c) If the Director of the implementing agency determines that the 
amount of corrective action costs and third-party liability claims 
eligible for payment under paragraph (b) of this section may exceed the 
balance of the standby trust fund and the obligation of the provider of 
financial assurance, the first priority for payment shall be corrective 
action costs necessary to protect human health and the environment. The 
Director shall pay third-party liability claims in the order in which 
the Director receives certifications under paragraph (b)(2)(i) of this 
section, and valid court orders under paragraph (b)(2)(ii) of this 
section.
    (d) A governmental entity acting as guarantor under Sec.  
280.106(e), the local government guarantee without standby trust, shall 
make payments as directed by the Director under the circumstances 
described in Sec.  280.112(a), (b), and (c).

Sec.  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 undergoes a change-in-service 
or, if corrective action is required, after corrective action has been 
completed and the tank has been permanently closed or undergoes a 
change-in-service as required by subpart G of this part.

Sec.  280.114  Bankruptcy or other incapacity of owner or operator or 
provider of financial assurance.

    (a) Within 10 days after commencement of a voluntary or

[[Page 41662]]

involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming 
an owner or operator as debtor, the owner or operator must notify the 
Director of the implementing agency by certified mail of such 
commencement and submit the appropriate forms listed in Sec.  
280.111(b) documenting current financial responsibility.
    (b) Within 10 days after commencement of a voluntary or involuntary 
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a guarantor 
providing financial assurance as debtor, such guarantor must notify the 
owner or operator by certified mail of such commencement as required 
under the terms of the guarantee specified in Sec.  280.96.
    (c) Within 10 days after commencement of a voluntary or involuntary 
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a local 
government owner or operator as debtor, the local government owner or 
operator must notify the Director of the implementing agency by 
certified mail of such commencement and submit the appropriate forms 
listed in Sec.  280.111(b) documenting current financial 
responsibility.
    (d) Within 10 days after commencement of a voluntary or involuntary 
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a guarantor 
providing a local government financial assurance as debtor, such 
guarantor must notify the local government owner or operator by 
certified mail of such commencement as required under the terms of the 
guarantee specified in Sec.  280.106.
    (e) An owner or operator who obtains financial assurance by a 
mechanism other than the financial test of self-insurance will be 
deemed to be without the required financial assurance in the event of a 
bankruptcy or incapacity of its provider of financial assurance, or a 
suspension or revocation of the authority of the provider of financial 
assurance to issue a guarantee, insurance policy, risk retention group 
coverage policy, surety bond, letter of credit, or state-required 
mechanism. The owner or operator must obtain alternate financial 
assurance as specified in this subpart within 30 days after receiving 
notice of such an event. If the owner or operator does not obtain 
alternate coverage within 30 days after such notification, he must 
notify the Director of the implementing agency.
    (f) Within 30 days after receipt of notification that a state fund 
or other state assurance has become incapable of paying for assured 
corrective action or third-party compensation costs, the owner or 
operator must obtain alternate financial assurance.

Sec.  280.115  Replenishment of guarantees, letters of credit, or 
surety bonds.

    (a) If at any time after a standby trust is funded upon the 
instruction of the Director of the implementing agency with funds drawn 
from a guarantee, local government guarantee with standby trust, letter 
of credit, or surety bond, and the amount in the standby trust is 
reduced below the full amount of coverage required, the owner or 
operator shall by the anniversary date of the financial mechanism from 
which the funds were drawn:
    (1) Replenish the value of financial assurance to equal the full 
amount of coverage required; or
    (2) Acquire another financial assurance mechanism for the amount by 
which funds in the standby trust have been reduced.
    (b) For purposes of this section, the full amount of coverage 
required is the amount of coverage to be provided by Sec.  280.93. If a 
combination of mechanisms was used to provide the assurance funds which 
were drawn upon, replenishment shall occur by the earliest anniversary 
date among the mechanisms.

Sec.  280.116  Suspension of enforcement. [Reserved]

Subpart I--Lender Liability

Sec.  280.200  Definitions.

    (a) UST technical standards, as used in this subpart, refers to the 
UST preventative and operating requirements under subparts B, C, D, G, 
J, and K of this part and Sec.  280.50.
    (b) Petroleum production, refining, and marketing. (1) Petroleum 
production means the production of crude oil or other forms of 
petroleum (as defined in Sec.  280.12) as well as the production of 
petroleum products from purchased materials.
    (2) Petroleum refining means the cracking, distillation, 
separation, conversion, upgrading, and finishing of refined petroleum 
or petroleum products.
    (3) Petroleum marketing means the distribution, transfer, or sale 
of petroleum or petroleum products for wholesale or retail purposes.
    (c) Indicia of ownership means evidence of a secured interest, 
evidence of an interest in a security interest, or evidence of an 
interest in real or personal property securing a loan or other 
obligation, including any legal or equitable title or deed to real or 
personal property acquired through or incident to foreclosure. Evidence 
of such interests include, but are not limited to, mortgages, deeds of 
trust, liens, surety bonds and guarantees of obligations, title held 
pursuant to a lease financing transaction in which the lessor does not 
select initially the leased property (hereinafter ``lease financing 
transaction''), and legal or equitable title obtained pursuant to 
foreclosure. Evidence of such interests also includes assignments, 
pledges, or other rights to or other forms of encumbrance against 
property that are held primarily to protect a security interest. A 
person is not required to hold title or a security interest in order to 
maintain indicia of ownership.
    (d) A holder is a person who, upon the effective date of this 
regulation or in the future, maintains indicia of ownership (as defined 
in Sec.  280.200(c)) primarily to protect a security interest (as 
defined in Sec.  280.200(f)(1)) in a petroleum UST or UST system or 
facility or property on which a petroleum UST or UST system is located. 
A holder includes the initial holder (such as a loan originator); any 
subsequent holder (such as a successor-in-interest or subsequent 
purchaser of the security interest on the secondary market); a 
guarantor of an obligation, surety, or any other person who holds 
ownership indicia primarily to protect a security interest; or a 
receiver or other person who acts on behalf or for the benefit of a 
holder.
    (e) A borrower, debtor, or obligor is a person whose UST or UST 
system or facility or property on which the UST or UST system is 
located is encumbered by a security interest. These terms may be used 
interchangeably.
    (f) Primarily to protect a security interest means that the 
holder's indicia of ownership are held primarily for the purpose of 
securing payment or performance of an obligation.
    (1) Security interest means an interest in a petroleum UST or UST 
system or in the facility or property on which a petroleum UST or UST 
system is located, created or established for the purpose of securing a 
loan or other obligation. Security interests include but are not 
limited to mortgages, deeds of trusts, liens, and title pursuant to 
lease financing transactions. Security interests may also arise from 
transactions such as sale and leasebacks, conditional sales, 
installment sales, trust receipt transactions, certain assignments, 
factoring agreements, accounts receivable financing arrangements, and 
consignments, if the transaction creates or establishes an interest in 
an UST or UST system or in the facility or property on which the UST or 
UST system is located, for the

[[Page 41663]]

purpose of securing a loan or other obligation.
    (2) Primarily to protect a security interest, as used in this 
subpart, does not include indicia of ownership held primarily for 
investment purposes, nor ownership indicia held primarily for purposes 
other than as protection for a security interest. A holder may have 
other, secondary reasons for maintaining indicia of ownership, but the 
primary reason why any ownership indicia are held must be as protection 
for a security interest.
    (g) Operation means, for purposes of this subpart, the use, 
storage, filling, or dispensing of petroleum contained in an UST or UST 
system.

Sec.  280.210  Participation in management.

    The term ``participating in the management of an UST or UST 
system'' means that, subsequent to the effective date of this subpart, 
December 6, 1995, the holder is engaging in decisionmaking control of, 
or activities related to, operation of the UST or UST system, as 
defined herein.
    (a) Actions that are participation in management. (1) Participation 
in the management of an UST or UST system means, for purposes of this 
subpart, actual participation by the holder in the management or 
control of decisionmaking related to the operation of an UST or UST 
system. Participation in management does not include the mere capacity 
or ability to influence or the unexercised right to control UST or UST 
system operations. A holder is participating in the management of the 
UST or UST system only if the holder either:
    (i) Exercises decisionmaking control over the operational (as 
opposed to financial or administrative) aspects of the UST or UST 
system, such that the holder has undertaken responsibility for all or 
substantially all of the management of the UST or UST system; or
    (ii) Exercises control at a level comparable to that of a manager 
of the borrower's enterprise, such that the holder has assumed or 
manifested responsibility for the overall management of the enterprise 
encompassing the day-to-day decisionmaking of the enterprise with 
respect to all, or substantially all, of the operational (as opposed to 
financial or administrative) aspects of the enterprise.
    (2) Operational aspects of the enterprise relate to the use, 
storage, filling, or dispensing of petroleum contained in an UST or UST 
system, and include functions such as that of a facility or plant 
manager, operations manager, chief operating officer, or chief 
executive officer. Financial or administrative aspects include 
functions such as that of a credit manager, accounts payable/receivable 
manager, personnel manager, controller, chief financial officer, or 
similar functions. Operational aspects of the enterprise do not include 
the financial or administrative aspects of the enterprise, or actions 
associated with environmental compliance, or actions undertaken 
voluntarily to protect the environment in accordance with applicable 
requirements in this part or applicable state requirements in those 
states that have been delegated authority by EPA to administer the UST 
program pursuant to 42 U.S.C. 6991c and 40 CFR part 281.
    (b) Actions that are not participation in management pre-
foreclosure. (1) Actions at the inception of the loan or other 
transaction. No act or omission prior to the time that indicia of 
ownership are held primarily to protect a security interest constitutes 
evidence of participation in management within the meaning of this 
subpart. A prospective holder who undertakes or requires an 
environmental investigation (which could include a site assessment, 
inspection, and/or audit) of the UST or UST system or facility or 
property on which the UST or UST system is located (in which indicia of 
ownership are to be held), or requires a prospective borrower to clean 
up contamination from the UST or UST system or to comply or come into 
compliance (whether prior or subsequent to the time that indicia of 
ownership are held primarily to protect a security interest) with any 
applicable law or regulation, is not by such action considered to be 
participating in the management of the UST or UST system or facility or 
property on which the UST or UST system is located.
    (2) Loan policing and work out. Actions that are consistent with 
holding ownership indicia primarily to protect a security interest do 
not constitute participation in management for purposes of this 
subpart. The authority for the holder to take such actions may, but 
need not, be contained in contractual or other documents specifying 
requirements for financial, environmental, and other warranties, 
covenants, conditions, representations or promises from the borrower. 
Loan policing and work out activities cover and include all such 
activities up to foreclosure, exclusive of any activities that 
constitute participation in management.
    (i) Policing the security interest or loan. (A) A holder who 
engages in policing activities prior to foreclosure will remain within 
the exemption provided that the holder does not together with other 
actions participate in the management of the UST or UST system as 
provided in Sec.  280.210(a). Such policing actions include, but are 
not limited to, requiring the borrower to clean up contamination from 
the UST or UST system during the term of the security interest; 
requiring the borrower to comply or come into compliance with 
applicable federal, state, and local environmental and other laws, 
rules, and regulations during the term of the security interest; 
securing or exercising authority to monitor or inspect the UST or UST 
system or facility or property on which the UST or UST system is 
located (including on-site inspections) in which indicia of ownership 
are maintained, or the borrower's business or financial condition 
during the term of the security interest; or taking other actions to 
adequately police the loan or security interest (such as requiring a 
borrower to comply with any warranties, covenants, conditions, 
representations, or promises from the borrower).
    (B) Policing activities also include undertaking by the holder of 
UST environmental compliance actions and voluntary environmental 
actions taken in compliance with this part, provided that the holder 
does not otherwise participate in the management or daily operation of 
the UST or UST system as provided in Sec.  280.210(a) and Sec.  
280.230. Such allowable actions include, but are not limited to, 
release detection and release reporting, release response and 
corrective action, temporary or permanent closure of an UST or UST 
system, UST upgrading or replacement, and maintenance of corrosion 
protection. A holder who undertakes these actions must do so in 
compliance with the applicable requirements in this part or applicable 
state requirements in those states that have been delegated authority 
by EPA to administer the UST program pursuant to 42 U.S.C. 6991c and 40 
CFR part 281. A holder may directly oversee these environmental 
compliance actions and voluntary environmental actions, and directly 
hire contractors to perform the work, and is not by such action 
considered to be participating in the management of the UST or UST 
system.
    (ii) Loan work out. A holder who engages in work out activities 
prior to foreclosure will remain within the exemption provided that the 
holder does not together with other actions participate in the 
management of the UST or UST system as provided in Sec.  280.210(a). 
For purposes of this rule, ``work out'' refers to those actions by 
which a holder, at any time prior to

[[Page 41664]]

foreclosure, seeks to prevent, cure, or mitigate a default by the 
borrower or obligor; or to preserve, or prevent the diminution of, the 
value of the security. Work out activities include, but are not limited 
to, restructuring or renegotiating the terms of the security interest; 
requiring payment of additional rent or interest; exercising 
forbearance; requiring or exercising rights pursuant to an assignment 
of accounts or other amounts owing to an obligor; requiring or 
exercising rights pursuant to an escrow agreement pertaining to amounts 
owing to an obligor; providing specific or general financial or other 
advice, suggestions, counseling, or guidance; and exercising any right 
or remedy the holder is entitled to by law or under any warranties, 
covenants, conditions, representations, or promises from the borrower.
    (c) Foreclosure on an UST or UST system or facility or property on 
which an UST or UST system is located, and participation in management 
activities post-foreclosure.
    (1) Foreclosure. (i) Indicia of ownership that are held primarily 
to protect a security interest include legal or equitable title or deed 
to real or personal property acquired through or incident to 
foreclosure. For purposes of this subpart, the term ``foreclosure'' 
means that legal, marketable or equitable title or deed has been 
issued, approved, and recorded, and that the holder has obtained access 
to the UST, UST system, UST facility, and property on which the UST or 
UST system is located, provided that the holder acted diligently to 
acquire marketable title or deed and to gain access to the UST, UST 
system, UST facility, and property on which the UST or UST system is 
located. The indicia of ownership held after foreclosure continue to be 
maintained primarily as protection for a security interest provided 
that the holder undertakes to sell, re-lease an UST or UST system or 
facility or property on which the UST or UST system is located, held 
pursuant to a lease financing transaction (whether by a new lease 
financing transaction or substitution of the lessee), or otherwise 
divest itself of the UST or UST system or facility or property on which 
the UST or UST system is located, in a reasonably expeditious manner, 
using whatever commercially reasonable means are relevant or 
appropriate with respect to the UST or UST system or facility or 
property on which the UST or UST system is located, taking all facts 
and circumstances into consideration, and provided that the holder does 
not participate in management (as defined in Sec.  280.210(a)) prior to 
or after foreclosure.
    (ii) For purposes of establishing that a holder is seeking to sell, 
re-lease pursuant to a lease financing transaction (whether by a new 
lease financing transaction or substitution of the lessee), or divest 
in a reasonably expeditious manner an UST or UST system or facility or 
property on which the UST or UST system is located, the holder may use 
whatever commercially reasonable means as are relevant or appropriate 
with respect to the UST or UST system or facility or property on which 
the UST or UST system is located, or may employ the means specified in 
Sec.  280.210(c)(2). A holder that outbids, rejects, or fails to act 
upon a written bona fide, firm offer of fair consideration for the UST 
or UST system or facility or property on which the UST or UST system is 
located, as provided in Sec.  280.210(c)(2), is not considered to hold 
indicia of ownership primarily to protect a security interest.
    (2) Holding foreclosed property for disposition and liquidation. A 
holder, who does not participate in management prior to or after 
foreclosure, may sell, re-lease, pursuant to a lease financing 
transaction (whether by a new lease financing transaction or 
substitution of the lessee), an UST or UST system or facility or 
property on which the UST or UST system is located, liquidate, wind up 
operations, and take measures, prior to sale or other disposition, to 
preserve, protect, or prepare the secured UST or UST system or facility 
or property on which the UST or UST system is located. A holder may 
also arrange for an existing or new operator to continue or initiate 
operation of the UST or UST system. The holder may conduct these 
activities without voiding the security interest exemption, subject to 
the requirements of this subpart.
    (i) A holder establishes that the ownership indicia maintained 
after foreclosure continue to be held primarily to protect a security 
interest by, within 12 months following foreclosure, listing the UST or 
UST system or the facility or property on which the UST or UST system 
is located, with a broker, dealer, or agent who deals with the type of 
property in question, or by advertising the UST or UST system or 
facility or property on which the UST or UST system is located, as 
being for sale or disposition on at least a monthly basis in either a 
real estate publication or a trade or other publication suitable for 
the UST or UST system or facility or property on which the UST or UST 
system is located, or a newspaper of general circulation (defined as 
one with a circulation over 10,000, or one suitable under any 
applicable federal, state, or local rules of court for publication 
required by court order or rules of civil procedure) covering the 
location of the UST or UST system or facility or property on which the 
UST or UST system is located. For purposes of this provision, the 12-
month period begins to run from December 6, 1995 or from the date that 
the marketable title or deed has been issued, approved and recorded, 
and the holder has obtained access to the UST, UST system, UST facility 
and property on which the UST or UST system is located, whichever is 
later, provided that the holder acted diligently to acquire marketable 
title or deed and to obtain access to the UST, UST system, UST facility 
and property on which the UST or UST system is located. If the holder 
fails to act diligently to acquire marketable title or deed or to gain 
access to the UST or UST system, the 12-month period begins to run from 
December 6, 1995 or from the date on which the holder first acquires 
either title to or possession of the secured UST or UST system, or 
facility or property on which the UST or UST system is located, 
whichever is later.
    (ii) A holder that outbids, rejects, or fails to act upon an offer 
of fair consideration for the UST or UST system or the facility or 
property on which the UST or UST system is located, establishes by such 
outbidding, rejection, or failure to act, that the ownership indicia in 
the secured UST or UST system or facility or property on which the UST 
or UST system is located are not held primarily to protect the security 
interest, unless the holder is required, in order to avoid liability 
under federal or state law, to make a higher bid, to obtain a higher 
offer, or to seek or obtain an offer in a different manner.
    (A) Fair consideration, in the case of a holder maintaining indicia 
of ownership primarily to protect a senior security interest in the UST 
or UST system or facility or property on which the UST or UST system is 
located, is the value of the security interest as defined in this 
section. The value of the security interest includes all debt and costs 
incurred by the security interest holder, and is calculated as an 
amount equal to or in excess of the sum of the outstanding principal 
(or comparable amount in the case of a lease that constitutes a 
security interest) owed to the holder immediately preceding the 
acquisition of full title (or possession in the case of a lease 
financing transaction) pursuant to foreclosure, plus any unpaid 
interest, rent, or penalties

[[Page 41665]]

(whether arising before or after foreclosure). The value of the 
security interest also includes all reasonable and necessary costs, 
fees, or other charges incurred by the holder incident to work out, 
foreclosure, retention, preserving, protecting, and preparing, prior to 
sale, the UST or UST system or facility or property on which the UST or 
UST system is located, re-lease, pursuant to a lease financing 
transaction (whether by a new lease financing transaction or 
substitution of the lessee), of an UST or UST system or facility or 
property on which the UST or UST system is located, or other 
disposition. The value of the security interest also includes 
environmental investigation costs (which could include a site 
assessment, inspection, and/or audit of the UST or UST system or 
facility or property on which the UST or UST system is located), and 
corrective action costs incurred under Sec. Sec.  280.51 through 280.67 
or any other costs incurred as a result of reasonable efforts to comply 
with any other applicable federal, state or local law or regulation; 
less any amounts received by the holder in connection with any partial 
disposition of the property and any amounts paid by the borrower (if 
not already applied to the borrower's obligations) subsequent to the 
acquisition of full title (or possession in the case of a lease 
financing transaction) pursuant to foreclosure. In the case of a holder 
maintaining indicia of ownership primarily to protect a junior security 
interest, fair consideration is the value of all outstanding higher 
priority security interests plus the value of the security interest 
held by the junior holder, each calculated as set forth in this 
paragraph (c).
    (B) Outbids, rejects, or fails to act upon an offer of fair 
consideration means that the holder outbids, rejects, or fails to act 
upon within 90 days of receipt, a written, bona fide, firm offer of 
fair consideration for the UST or UST system or facility or property on 
which the UST or UST system is located received at any time after six 
months following foreclosure, as defined in Sec.  280.210(c). A 
``written, bona fide, firm offer'' means a legally enforceable, 
commercially reasonable, cash offer solely for the foreclosed UST or 
UST system or facility or property on which the UST or UST system is 
located, including all material terms of the transaction, from a ready, 
willing, and able purchaser who demonstrates to the holder's 
satisfaction the ability to perform. For purposes of this provision, 
the six-month period begins to run from December 6, 1995 or from the 
date that marketable title or deed has been issued, approved and 
recorded to the holder, and the holder has obtained access to the UST, 
UST system, UST facility and property on which the UST or UST system is 
located, whichever is later, provided that the holder was acting 
diligently to acquire marketable title or deed and to obtain access to 
the UST or UST system, UST facility and property on which the UST or 
UST system is located. If the holder fails to act diligently to acquire 
marketable title or deed or to gain access to the UST or UST system, 
the six-month period begins to run from December 6, 1995 or from the 
date on which the holder first acquires either title to or possession 
of the secured UST or UST system, or facility or property on which the 
UST or UST system is located, whichever is later.
    (3) Actions that are not participation in management post-
foreclosure. A holder is not considered to be participating in the 
management of an UST or UST system or facility or property on which the 
UST or UST system is located when undertaking actions under this part, 
provided that the holder does not otherwise participate in the 
management or daily operation of the UST or UST system as provided in 
Sec.  280.210(a) and Sec.  280.230. Such allowable actions include, but 
are not limited to, release detection and release reporting, release 
response and corrective action, temporary or permanent closure of an 
UST or UST system, UST upgrading or replacement, and maintenance of 
corrosion protection. A holder who undertakes these actions must do so 
in compliance with the applicable requirements in this part or 
applicable state requirements in those states that have been delegated 
authority by EPA to administer the UST program pursuant to 42 U.S.C. 
6991c and 40 CFR part 281. A holder may directly oversee these 
environmental compliance actions and voluntary environmental actions, 
and directly hire contractors to perform the work, and is not by such 
action considered to be participating in the management of the UST or 
UST system.

Sec.  280.220  Ownership of an underground storage tank or underground 
storage tank system or facility or property on which an underground 
storage tank or underground storage tank system is located.

    Ownership of an UST or UST system or facility or property on which 
an UST or UST system is located. A holder is not 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 UST technical standards as defined in Sec.  280.200(a), the UST 
corrective action requirements under Sec. Sec.  280.51 through 280.67, 
and the UST financial responsibility requirements under Sec. Sec.  
280.90 through 280.111, provided the person:
    (a) Does not participate in the management of the UST or UST system 
as defined in Sec.  280.210; and
    (b) Does not engage in petroleum production, refining, and 
marketing as defined in Sec.  280.200(b).

Sec.  280.230  Operating an underground storage tank or underground 
storage tank system.

    (a) Operating an UST or UST system prior to foreclosure. A holder, 
prior to foreclosure, as defined in Sec.  280.210(c), is not an 
``operator'' of a petroleum UST or UST system for purposes of 
compliance with the UST technical standards as defined in Sec.  
280.200(a), the UST corrective action requirements under Sec. Sec.  
280.51 through 280.67, and the UST financial responsibility 
requirements under Sec. Sec.  280.90 through 280.111, provided that, 
after December 6, 1995, the holder is not in control of or does not 
have responsibility for the daily operation of the UST or UST system.
    (b) Operating an UST or UST system after foreclosure. The following 
provisions apply to a holder who, through foreclosure, as defined in 
Sec.  280.210(c), acquires a petroleum UST or UST system or facility or 
property on which a petroleum UST or UST system is located.
    (1) A holder is not an ``operator'' of a petroleum UST or UST 
system for purposes of compliance with this part if there is an 
operator, other than the holder, who is in control of or has 
responsibility for the daily operation of the UST or UST system, and 
who can be held responsible for compliance with applicable requirements 
of this part or applicable state requirements in those states that have 
been delegated authority by EPA to administer the UST program pursuant 
to 42 U.S.C. 6991c and 40 CFR part 281.
    (2) If another operator does not exist, as provided for under 
paragraph (b)(1) of this section, a holder is not an ``operator'' of 
the UST or UST system, for purposes of compliance with the UST 
technical standards as defined in Sec.  280.200(a), the UST corrective 
action requirements under Sec. Sec.  280.51 through 280.67, and the UST 
financial responsibility requirements under Sec. Sec.  280.90 through 
280.111, provided that the holder:
    (i) Empties all of its known USTs and UST systems within 60 
calendar days

[[Page 41666]]

after foreclosure or within 60 calendar days after December 6, 1995, 
whichever is later, or another reasonable time period specified by the 
implementing agency, so that no more than 2.5 centimeters (one inch) of 
residue, or 0.3 percent by weight of the total capacity of the UST 
system, remains in the system; leaves vent lines open and functioning; 
and caps and secures all other lines, pumps, manways, and ancillary 
equipment; and
    (ii) Empties those USTs and UST systems that are discovered after 
foreclosure within 60 calendar days after discovery or within 60 
calendar days after December 6, 1995, whichever is later, or another 
reasonable time period specified by the implementing agency, so that no 
more than 2.5 centimeters (one inch) of residue, or 0.3 percent by 
weight of the total capacity of the UST system, remains in the system; 
leaves vent lines open and functioning; and caps and secures all other 
lines, pumps, manways, and ancillary equipment.
    (3) If another operator does not exist, as provided for under 
paragraph (b)(1) of this section, in addition to satisfying the 
conditions under paragraph (b)(2) of this section, the holder must 
either:
    (i) Permanently close the UST or UST system in accordance with 
Sec. Sec.  280.71 through 280.74, except Sec.  280.72(b); or
    (ii) Temporarily close the UST or UST system in accordance with the 
following applicable provisions of Sec.  280.70:
    (A) Continue operation and maintenance of corrosion protection in 
accordance with Sec.  280.31;
    (B) Report suspected releases to the implementing agency; and
    (C) Conduct a site assessment in accordance with Sec.  280.72(a) if 
the UST system is temporarily closed for more than 12 months and the 
UST system does not meet either the performance standards in Sec.  
280.20 for new UST systems or the upgrading requirements in Sec.  
280.21, except that the spill and overfill equipment requirements do 
not have to be met. The holder must report any suspected releases to 
the implementing agency. For purposes of this provision, the 12-month 
period begins to run from December 6, 1995 or from the date on which 
the UST system is emptied and secured under paragraph (b)(2) of this 
section, whichever is later.
    (4) The UST system can remain in temporary closure until a 
subsequent purchaser has acquired marketable title to the UST or UST 
system or facility or property on which the UST or UST system is 
located. Once a subsequent purchaser acquires marketable title to the 
UST or UST system or facility or property on which the UST or UST 
system is located, the purchaser must decide whether to operate or 
close the UST or UST system in accordance with applicable requirements 
in this part or applicable state requirements in those states that have 
been delegated authority by EPA to administer the UST program pursuant 
to 42 U.S.C. 6991c and 40 CFR part 281.

Subpart J--Operator Training

Sec.  280.240  General requirement for all UST systems.

    Not later than October 13, 2018, 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.

Sec.  280.241  Designation of Class A, B, and C 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.

Sec.  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 (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 A operator 
must provide general knowledge of the requirements in this paragraph 
(a). At a minimum, the training must teach the Class A operators, as 
applicable, about 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 and demonstration;
    (vi) Financial responsibility;
    (vii) Notification and storage tank registration;
    (viii) Temporary and permanent closure;
    (ix) Related reporting, recordkeeping, testing, and inspections;
    (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 (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 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, about the purpose, methods, and function of:
    (i) Operation and maintenance;
    (ii) Spill and overfill prevention;
    (iii) Release detection and related reporting;
    (iv) Corrosion protection;
    (v) Emergency response;
    (vi) Product and equipment compatibility and demonstration;
    (vii) Reporting, recordkeeping, testing, and inspections;
    (viii) Environmental and regulatory consequences of releases; and
    (ix) Training requirements for Class C operators.
    (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 (2) of this section; complete a training program 
in accordance with paragraphs (c)(1) and (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 (including 
notifying

[[Page 41667]]

appropriate authorities) in response to emergencies or alarms caused by 
spills or releases resulting from the operation of 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 action (including notifying appropriate 
authorities) in response to emergencies 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.
    (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), 
or (c) of this section, as applicable.

Sec.  280.243  Timing of operator training.

    (a) An owner and operator must ensure that designated Class A, 
Class B, and Class C operators meet the requirements in Sec.  280.242 
not later than October 13, 2018.
    (b) Class A and Class B operators designated after October 13, 2018 
must meet requirements in Sec.  280.242 within 30 days of assuming 
duties.
    (c) Class C operators designated after October 13, 2018 must be 
trained before assuming duties of a Class C operator.

Sec.  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 
Sec.  280.242. The training program or comparable examination must be 
developed or administered by an independent organization, the 
implementing agency, or a recognized authority. 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 Sec.  280.242, or
    (b) The implementing agency, at its discretion, waives this 
retraining requirement for either the Class A or Class B operator or 
both.

Sec.  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 Sec.  280.34 as 
follows:
    (a) The list must:
    (1) Identify all Class A, Class B, and Class C operators currently 
designated for the facility; 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, operator training class completed, and list the name of 
the trainer or examiner and the training company name, address, and 
telephone number. 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 (including 
Class C operator training provided by the Class A or Class B operator) 
or a comparable examination must, at a minimum, be signed by the 
trainer or examiner;
    (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.

Subpart K--UST Systems with Field-Constructed Tanks and Airport 
Hydrant Fuel Distribution Systems

Sec.  280.250  Definitions.

    For purposes of this subpart, the following definitions apply:
    Airport hydrant fuel distribution system (also called airport 
hydrant system) means an UST system which fuels aircraft and operates 
under high pressure with large diameter piping that typically 
terminates into one or more hydrants (fill stands). The airport hydrant 
system begins where fuel enters one or more tanks from an external 
source such as a pipeline, barge, rail car, or other motor fuel 
carrier.
    Field-constructed tank means a tank constructed in the field. For 
example, a tank constructed of concrete that is poured in the field, or 
a steel or fiberglass tank primarily fabricated in the field is 
considered field-constructed.

Sec.  280.251  General requirements.

    (a) Implementation of requirements. Owners and operators must 
comply with the requirements of this part for UST systems with field-
constructed tanks and airport hydrant systems as follows:
    (1) For UST systems installed on or before October 13, 2015 the 
requirements are effective according to the following schedule:

------------------------------------------------------------------------
            Requirement                         Effective date
------------------------------------------------------------------------
Upgrading UST systems; general       October 13, 2018.
 operating requirements; and
 operator training.
Release detection..................  October 13, 2018.
Release reporting, response, and     October 13, 2015.
 investigation; closure; financial
 responsibility and notification
 (except as provided in paragraph
 (b) of this section).
------------------------------------------------------------------------

    (2) For UST systems installed after October 13, 2015, the 
requirements apply at installation.
    (b) Not later than October 13, 2018, all owners of previously 
deferred UST systems must submit a one-time notice of tank system 
existence to the implementing agency, using the form in appendix I of 
this part or a state form in accordance with Sec.  280.22(c). Owners 
and operators of UST systems in use as of October 13, 2015 must 
demonstrate financial responsibility at the time of submission of the 
notification form.
    (c) Except as provided in Sec.  280.252, owners and operators must 
comply with the requirements of subparts A through H and J of this 
part.
    (d) In addition to the codes of practice listed in Sec.  280.20, 
owners and operators may use military construction criteria, such as 
Unified Facilities Criteria (UFC) 3-460-01, Petroleum Fuel Facilities, 
when designing, constructing, and

[[Page 41668]]

installing airport hydrant systems and UST systems with field-
constructed tanks.

Sec.  280.252  Additions, exceptions, and alternatives for UST systems 
with field-constructed tanks and airport hydrant systems.

    (a) Exception to piping secondary containment requirements. Owners 
and operators may use single walled piping when installing or replacing 
piping associated with UST systems with field-constructed tanks greater 
than 50,000 gallons and piping associated with airport hydrant systems. 
Piping associated with UST systems with field-constructed tanks less 
than or equal to 50,000 gallons not part of an airport hydrant system 
must meet the secondary containment requirement when installed or 
replaced.
    (b) Upgrade requirements. Not later than October 13, 2018, airport 
hydrant systems and UST systems with field-constructed tanks where 
installation commenced on or before October 13, 2015 must meet the 
following requirements 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) Except as provided in paragraph (a) of this section, the new 
UST system performance standards for tanks at Sec.  280.20(a) and for 
piping at Sec.  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 Sec.  
280.20(a)(2)(ii), (iii), and (iv) for tanks, and Sec.  
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 (b). The following codes of practice may be 
used to comply with this paragraph (b):
    (A) NACE International Standard Practice SP 0285, ``External 
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, Chapter 
C, ``Internal Inspection of Steel Tanks for Retrofit of Cathodic 
Protection''; 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 
UST systems with field-constructed tanks and airport hydrant systems 
must comply with new UST system spill and overfill prevention equipment 
requirements specified in Sec.  280.20(c).
    (c) Walkthrough inspections. In addition to the walkthrough 
inspection requirements in Sec.  280.36, owners and operators must 
inspect the following additional areas for airport hydrant systems at 
least once every 30 days if confined space entry according to the 
Occupational Safety and Health Administration (see 29 CFR part 1910) is 
not required or at least annually if confined space entry is required 
and keep documentation of the inspection according to Sec.  280.36(b).
    (1) Hydrant pits--visually check for any damage; remove any liquid 
or debris; and check for any leaks, and
    (2) Hydrant piping vaults--check for any hydrant piping leaks.
    (d) Release detection. Owners and operators of UST systems with 
field-constructed tanks and airport hydrant systems must begin meeting 
the release detection requirements described in this subpart not later 
than October 13, 2018.
    (1) Methods of release detection for field-constructed tanks. 
Owners and operators of field-constructed tanks with a capacity less 
than or equal to 50,000 gallons must meet the release detection 
requirements in subpart D of this part. Owners and operators of field-
constructed tanks with a capacity greater than 50,000 gallons must meet 
either the requirements in subpart D (except Sec.  280.43(e) and (f) 
must be combined with inventory control as stated below) or use one or 
a combination of the following alternative methods of release 
detection:
    (i) Conduct an annual tank tightness test that can detect a 0.5 
gallon per hour leak rate;
    (ii) 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 
tank tightness test that can detect a 0.2 gallon per hour leak rate 
performed at least every three years;
    (iii) 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 
tank tightness test that can detect a 0.2 gallon per hour leak rate 
performed at least every two years;
    (iv) Perform vapor monitoring (conducted in accordance with Sec.  
280.43(e) for a tracer compound placed in the tank system) capable of 
detecting a 0.1 gallon per hour leak rate at least every two years;
    (v) Perform inventory control (conducted in accordance with 
Department of Defense Directive 4140.25; ATA Airport Fuel Facility 
Operations and Maintenance Guidance Manual; or equivalent procedures) 
at least every 30 days that can detect a leak equal to or less than 0.5 
percent of flow-through; and
    (A) Perform a tank tightness test that can detect a 0.5 gallon per 
hour leak rate at least every two years; or
    (B) Perform vapor monitoring or groundwater monitoring (conducted 
in accordance with Sec.  280.43(e) or (f), respectively, for the stored 
regulated substance) at least every 30 days; or
    (vi) 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 (d)(1)(i) 
through (v) 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.
    (2) Methods of release detection for piping. Owners and operators 
of underground piping associated with field-constructed tanks less than 
or equal to 50,000 gallons must meet the release detection requirements 
in subpart D of this part. Owners and operators of underground piping 
associated with airport hydrant systems and field-constructed tanks 
greater than 50,000 gallons must follow either the requirements in 
subpart D (except Sec.  280.43(e) and (f) must be combined with 
inventory control as stated below) or use one or a combination of the 
following alternative methods of release detection:
    (i)(A) Perform a semiannual or annual line tightness test at or 
above the piping operating pressure in accordance with the table below.

[[Page 41669]]

           Maximum Leak Detection Rate Per Test Section Volume
------------------------------------------------------------------------
                                            Semiannual     Annual test--
                                            test--leak    leak detection
                                          detection rate    rate not to
      Test section volume (gallons)        not to exceed      exceed
                                           (gallons per    (gallons per
                                               hour)           hour)
------------------------------------------------------------------------
=50,000 to =75,000 to =100,000...............................             3.0            1.5
------------------------------------------------------------------------

    (B) Piping segment volumes >=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 
following schedule:

        Phase In For Piping Segments >=100,000 Gallons In Volume
------------------------------------------------------------------------
 
------------------------------------------------------------------------
First test...................  Not later than October 13, 2018 (may use
                                up to 6.0 gph leak rate).
Second test..................  Between October 13, 2018 and October 13,
                                2021 (may use up to 6.0 gph leak rate).
Third test...................  Between October 13, 2021 and October 13,
                                2022 (must use 3.0 gph for leak rate).
Subsequent tests.............  After October 13, 2022, begin using
                                semiannual or annual line testing
                                according to the Maximum Leak Detection
                                Rate Per Test Section Volume table
                                above.
------------------------------------------------------------------------

    (ii) Perform vapor monitoring (conducted in accordance with Sec.  
280.43(e) for a tracer compound placed in the tank system) capable of 
detecting a 0.1 gallon per hour leak rate at least every two years;
    (iii) Perform inventory control (conducted in accordance with 
Department of Defense Directive 4140.25; ATA Airport Fuel Facility 
Operations and Maintenance Guidance Manual; or equivalent procedures) 
at least every 30 days that can detect a leak equal to or less than 0.5 
percent of flow-through; and
    (A) Perform a line tightness test (conducted in accordance with 
paragraph (d)(2)(i) of this section using the leak rates for the 
semiannual test) at least every two years; or
    (B) Perform vapor monitoring or groundwater monitoring (conducted 
in accordance with Sec.  280.43(e) or (f), respectively, for the stored 
regulated substance) at least every 30 days; or
    (iv) 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 (d)(2)(i) 
through (iii) 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.
    (3) Recordkeeping for release detection. Owners and operators must 
maintain release detection records according to the recordkeeping 
requirements in Sec.  280.45.
    (e) Applicability of closure requirements to previously closed UST 
systems. When directed by the implementing agency, the owner and 
operator of an UST system with field-constructed tanks or airport 
hydrant system permanently closed before October 13, 2015 must assess 
the excavation zone and close the UST system in accordance with subpart 
G of this part if releases from the UST may, in the judgment of the 
implementing agency, pose a current or potential threat to human health 
and the environment.

[[Page 41670]]

Appendix I to Part 280--Notification for Underground Storage Tanks 
(Forms)
[GRAPHIC] [TIFF OMITTED] TR15JY15.043

[[Page 41671]]

[GRAPHIC] [TIFF OMITTED] TR15JY15.044

[[Page 41672]]

[GRAPHIC] [TIFF OMITTED] TR15JY15.045

[[Page 41673]]

[GRAPHIC] [TIFF OMITTED] TR15JY15.046

[[Page 41674]]

[GRAPHIC] [TIFF OMITTED] TR15JY15.047

[[Page 41675]]

[GRAPHIC] [TIFF OMITTED] TR15JY15.048

[[Page 41676]]

Appendix II to Part 280--Notification of Ownership for Underground 
Storage Tanks (Form)
[GRAPHIC] [TIFF OMITTED] TR15JY15.049

[[Page 41677]]

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 regulation at 40 CFR 280.22 to determine if you are affected 
by this law.

0
2. 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
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
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
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
281.50 Approval procedures for state programs.
281.51 Revision of approved state programs.
Subpart F--Withdrawal of Approval of State Programs
281.60 Criteria for withdrawal of approval of state programs.
281.61 Procedures for withdrawal of approval of state programs.

    Authority: 42 U.S.C. 6912, 6991(c), 6991(d), 6991(e), 6991(i), 
6991(k).

Subpart A--Purpose, General Requirements and Scope

Sec.  281.10  Purpose.

    (a) This part specifies the requirements that state programs must 
meet for approval by the Administrator under section 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 Sec.  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.

Sec.  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.

Sec.  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 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 40 CFR part 280 apply to 
this entire part except as described below.
    (i) States may use the definitions associated with tank and piping 
secondary containment as defined in section 9003 of the Solid Waste 
Disposal Act.
    (ii) States may use the definitions associated with operator 
training as described in Sec.  9010 of the Solid Waste Disposal Act.
    (2) For the purposes of this part the term ``final approval'' means 
the approval received by a state program that meets the requirements in 
Sec.  281.11(b).

Subpart B--Components of a Program Application

Sec.  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;

[[Page 41678]]

    (b) A description in accordance with Sec.  281.21 of the state 
program and operating procedures;
    (c) A demonstration of the state's procedures to ensure adequate 
enforcement;
    (d) A Memorandum of Agreement outlining roles and responsibilities 
of EPA and the implementing agency;
    (e) An Attorney General's statement in accordance with Sec.  281.25 
certifying to applicable state authorities; and
    (f) Copies of all applicable state statutes and regulations.

Sec.  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 in Indian country 
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.

Sec.  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.

Sec.  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.

Sec.  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 Sec.  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 in Indian country, the statement must contain an 
appropriate analysis of the state's authority.

Subpart C--Criteria for No Less Stringent

Sec.  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 section 9003(i)(2) of the Solid Waste 
Disposal Act, then the state must meet the following:
    (1) New or replaced tanks and piping must use interstitial 
monitoring within secondary containment in accordance with section 
9003(i)(1) of the Solid Waste Disposal Act except as follows:
    (i) Underground piping associated with: Airport hydrant systems or 
field-constructed tanks greater than 50,000 gallons or
    (ii) Underground suction piping that meets Sec.  281.33(d)(2)(ii).
    (2) New motor fuel dispenser systems installed and connected to an 
UST system must be equipped with under-dispenser containment in 
accordance with section 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.
    (c) All UST system owners and operators must notify the 
implementing agency of the existence of any new UST system and notify 
the implementing agency within a reasonable timeframe when assuming 
ownership of an UST system using a process designated by the 
implementing agency.

Sec.  281.31  Upgrading existing UST systems.

    In order to be considered no less stringent than the corresponding 
federal upgrading requirements, the state must have requirements that 
ensure existing UST systems meet the requirements of Sec.  281.30; are 
upgraded to prevent releases for their operating life due to corrosion, 
spills, or overfills; or are permanently closed with the following 
exceptions:
    (a) Upgrade requirements for previously deferred UST systems. 
Previously deferred airport hydrant fuel distribution systems and UST 
systems with field-constructed tanks must within three years of the 
effective date of its state requirements meet the requirements of Sec.  
281.30 or be permanently closed. This provision would not apply, 
however, to states that did not defer these UST systems and

[[Page 41679]]

already had, prior to the effective date of this provision, existing 
requirements with specified compliance periods for these types of UST 
systems.
    (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 spills or overfills.

Sec.  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; in order to ensure compatibility, the state 
requirements must also include provisions for demonstrating 
compatibility with new and innovative regulated substances or other 
regulated substances identified by the implementing agency or include 
other provisions determined by the implementing agency to be no less 
protective of human health and the environment than the provisions for 
demonstrating compatibility;
    (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 or inspected in a manner and frequency that ensures its 
functionality for the operating life of the equipment and have the 
integrity of containment sumps used for interstitial monitoring of 
piping periodically tested in a manner and frequency that prevents 
releases during the operating life of the UST system;
    (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; and
    (g) Have records of monitoring, testing, repairs, and inspections. 
These records must be made readily available when requested by the 
implementing agency.

Sec.  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 this 
part--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 and other equipment are tested or inspected 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 immediately, except for UST 
systems previously deferred under Sec.  280.10(a)(1). Release detection 
requirements must, at a minimum, be scheduled to be applied to those 
previously deferred UST systems as follows:
    (1) Immediately when a new previously deferred UST system is 
installed; and
    (2) For any previously deferred UST system within three years of 
the effective date of its state requirements. This provision would not 
apply, however, to states that did not defer these UST systems and 
already had, prior to the effective date of this provision, existing 
release detection requirements with specified compliance periods for 
these types of UST systems.
    (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 installed before October 
13, 2015 or upgraded tanks (that is, tanks and piping protected from 
releases due to corrosion and equipped with both spill and overfill 
prevention devices) 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 section 
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 section 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 three 
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) Except as provided for in Sec.  281.30(a)(1) new or replaced 
petroleum piping must use interstitial monitoring within secondary 
containment in accordance with section 9003(i)(1) of the Solid Waste 
Disposal Act except when the state requires evidence of financial 
responsibility and certification in accordance with section 9003(i)(2) 
of the Solid Waste Disposal Act.
    (e) Requirements for hazardous substance UST systems. All new 
hazardous substance UST systems must use interstitial monitoring within 
secondary containment of the tanks and the attached underground piping 
that

[[Page 41680]]

conveys the regulated substance stored in the tank. For hazardous 
substance UST systems installed prior to October 13, 2015, 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.

Sec.  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.

Sec.  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 groundwater, and any nearby surface 
waters. The extent of soil and groundwater 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 
groundwater remediation and any other steps are taken, 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 Sec.  280.67, the state must notify the 
affected public of all confirmed releases requiring a plan for soil and 
groundwater 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.

Sec.  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.

Sec.  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.

Sec.  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

[[Page 41681]]

    (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 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 Sec.  280.10 of this chapter, and who does 
not engage in petroleum production, refining, and marketing as defined 
under Sec.  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]

Sec.  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 
section 9010 of the Solid Waste Disposal Act.

Subpart D--Adequate Enforcement of Compliance

Sec.  281.40  Requirements for compliance monitoring program and 
authority.

    (a) Any authorized representative of the state engaged in 
compliance inspections, monitoring, or testing must have authority to 
obtain by request any information from an owner or operator with 
respect to the UST system(s) that is necessary to determine compliance 
with the UST regulations.
    (b) Any authorized representative of the state must have authority 
to require an owner or operator to conduct monitoring or testing.
    (c) Authorized representatives must have the authority to enter any 
site or premises subject to UST regulations or in which records 
relevant to the operation of the UST system(s) are kept, and to copy 
these records, obtain samples of regulated substances, and inspect or 
conduct the monitoring or testing of UST system(s).
    (d) State programs must have procedures for receipt, evaluation, 
retention, and investigation of records and reports required of owners 
or operators and must provide for enforcement of failure to submit 
these records and reports.
    (e)(1) State programs must have inspection procedures to determine, 
independent of information supplied by regulated persons, compliance 
with program requirements, and must provide for enforcement of failure 
to comply with the program requirements. States must maintain a program 
for systematic inspections of facilities subject to UST regulations in 
a manner designed to determine compliance or non-compliance, to verify 
accuracy of information submitted by owners or operators of regulated 
USTs, and to verify adequacy of methods used by owners or operators in 
developing that information.
    (2) When inspections are conducted, samples taken, or other 
information gathered, these procedures must be conducted in a manner 
(for example, using proper ``chain of custody'' procedures) that will 
produce evidence admissible in an enforcement proceeding, or in court.
    (f) Public effort in reporting violations must be encouraged and 
states must make available information on reporting procedures. State 
programs must maintain a program for investigating information obtained 
from the public about suspected violations of UST program requirements.
    (g) The state must maintain the data collected through inspections 
and evaluation of records in such a manner that the implementing agency 
can monitor over time the compliance status of the regulated community. 
Any compilation, index, or inventory of such facilities and activities 
shall be made available to EPA upon request.

Sec.  281.41  Requirements for enforcement authority.

    (a) Any state 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 be 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 
implementing agency to be ineligible for such delivery, deposit, or 
acceptance in accordance with section 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 
implementing agency(ies) under paragraph (a)(3) of this section must be 
appropriate to the violation.

Sec.  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) from Title IV of the Federal Rules of Civil Procedure, and 
assurance by the state 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 of right in any civil action 
to obtain the remedies specified in Sec.  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

[[Page 41682]]

    (3) It will not oppose citizen intervention when permissive 
intervention is allowed by statute, rule, or regulation.

Sec.  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

Sec.  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 Sec.  281.12.
    (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 
Sec.  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 and other mechanisms to attract 
state-wide attention. 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
    (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.

Sec.  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 Subtitle I of the Solid 
Waste Disposal Act pursuant to the procedures under this section, or 
under Sec.  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 and 
other mechanisms to attract state-wide attention. 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 Sec.  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

Sec.  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.

Sec.  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

[[Page 41683]]

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 and other 
mechanisms to attract state-wide attention.
    (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 Sec.  271.23(b)(8)(iii) to the 
extent that it deviates from requirements under Sec.  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. 2015-15914 Filed 7-14-15; 8:45 am]
 BILLING CODE 6560-50-P
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