```

[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Proposed Rules]
[Pages 71708-71796]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29293]

[[Page 71707]]

Vol. 76

Friday,

No. 223

November 18, 2011

Part III

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; Proposed Rule

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

[[Page 71708]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 280 and 281

[EPA-HQ-UST-2011-0301; FRL-9485-5]
RIN 2050-AG46

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make certain revisions to the 1988 
underground storage tank (UST) technical, financial responsibility, and 
state program approval regulations. These changes establish federal 
requirements that are similar to key portions of the Energy Policy Act 
of 2005; they also update certain 1988 UST regulations. Proposed 
changes include: Adding secondary containment requirements for new and 
replaced tanks and piping; adding operator training requirements; 
adding periodic operation and maintenance requirements for UST systems; 
removing certain deferrals; adding new release prevention and detection 
technologies; updating codes of practice; making editorial and 
technical corrections; and updating state program approval requirements 
to incorporate these new changes. These changes will likely protect 
human health and the environment by increasing the number of prevented 
UST releases and quickly detecting them, if they occur.

DATES: Comments must be received on or before February 16, 2012. Under 
the Paperwork Reduction Act, comments on the information collection 
provisions are best assured of having full effect if the Office of 
Management and Budget (OMB) receives a copy of your comments on or 
before December 19, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
UST-2011-0301, by one of the following methods:
    http://www.regulations.gov; Follow the online instructions 
for submitting comments.
     Email: mcdermott.elizabeth@epa.gov.
     Mail: EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-
UST-2011-0301, Mail Code 2822T, 1200 Pennsylvania Ave. NW., Washington, 
DC 20460. In addition, please mail a copy of your comments on the 
information collection provisions to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk 
Officer for EPA, 725 17th St. NW., Washington, DC 20503.
     Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room 
3334, 1301 Constitution Ave. NW., Washington, DC 20460. Attention 
Docket ID No. EPA-HQ-UST-2011-0301. Such deliveries are only accepted 
during the Docket's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-UST-
2011-0301. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through http://www.regulations.gov your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Docket, EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
Docket Center (EPA/DC) is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Elizabeth McDermott, OSWER/OUST 
(5401P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460; telephone number: (703) 603-7175; email address: 
mcdermott.elizabeth@epa.gov.

Table of Contents

I. General Information
    Does this action apply to me?
    What should I consider as I prepare my comments for EPA?
II. Authority
III. Background
    Why is EPA changing the UST regulations?
    What is the history of the UST laws and regulations?
    What is the impact of this proposal?
    What was EPA's process in deciding which changes to incorporate 
in the regulations?
IV. Proposed Revisions to the Requirements for Owners and Operators 
of Underground Storage Tanks
    A. Changes To Establish Federal Requirements for Operator 
Training and Secondary Containment
    1. Operator Training
    2. Secondary Containment
    B. Additional Requirements for Operation and Maintenance
    1. Walkthrough Inspections
    2. Spill Prevention Equipment Tests
    3. Overfill Prevention Equipment Tests
    4. Secondary Containment Tests
    5. Operation and Maintenance Requirements for Release Detection 
Equipment
    C. Addressing Deferrals
    1. Emergency Power Generator UST Systems
    2. Airport Hydrant Fuel Distribution Systems
    3. UST Systems With Field-Constructed Tanks
    4. Wastewater Treatment Tank Systems
    5. Maintain Deferral for USTs Containing Radioactive Material 
and Emergency Generator UST Systems at Nuclear Power Generation 
Facilities Regulated by the Nuclear Regulatory Commission
    D. Other Changes
    1. Changes to Overfill Prevention Equipment Requirements
    2. Internal Linings That Fail the Periodic Lining Inspection and 
Cannot Be Repaired
    3. Notification Requirements
    4. Alternative Fuels and Compatibility
    5. Improving Repairs

[[Page 71709]]

    6. Phase Out Vapor Monitoring and Groundwater Monitoring as 
Release Detection Methods
    7. Interstitial Monitoring Results, Including Interstitial 
Alarms, Under Subpart E
    E. General Updates
    1. Incorporate Newer Technologies
    2. Updates to Codes of Practice Listed in the UST Regulation
    3. Updates To Remove Old Upgrade and Implementation Deadlines
    4. Editorial and Technical Corrections
    F. Alternative Options EPA Considered
V. Updates to State Program Approval Requirements
VI. Overview of Estimated Costs and Benefits
VII. Statutory and Executive Orders
    A. Executive Order 12866: Regulatory Planning and Overview and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

SUPPLEMENTARY INFORMATION: 

I. General Information

Does this action apply to me?

    In the table below, EPA is providing a list of potentially affected 
entities. However, this proposed action may affect other entities not 
listed below. The Agency's goal with this section is to provide a guide 
for readers to consider regarding entities that potentially could be 
affected by this action. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding section titled FOR FURTHER INFORMATION CONTACT.

       Industry Sectors Potentially Affected by the Proposed Rule
------------------------------------------------------------------------
         Industry sector                        NAICS code
------------------------------------------------------------------------
Retail Motor Fuel Sales.........  447.
Commercial (wholesale trade,      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).
------------------------------------------------------------------------

What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or email. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information on a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Authority

    EPA is proposing these regulations under the authority of sections 
2002, 9001, 9002, 9003, 9004, 9005, 9006, 9007, and 9009 of the Solid 
Waste Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act of 1976, as amended [42 U.S.C. 6912, 6991, 6991(a), 
6991(b), 6991(c), 6991(d), 6991(e), 6991(f), 6991(h), 6991(i), and 
6991(k)].

III. Background

    EPA is proposing certain changes to the 1988 underground storage 
tank (UST) regulations in 40 CFR part 280. In addition, EPA is planning 
to implement the delivery prohibition provision of the Energy Policy 
Act of 2005 (hereafter called Energy Policy Act) for EPA-led 
inspections, but will address that independent of today's proposal. 
Finally, EPA is proposing to revise its state program approval (SPA) 
requirements in 40 CFR part 281 to incorporate the changes in 40 CFR 
part 280. While EPA's proposed changes to the 1988 UST regulations will 
improve environmental protection, we are sensitive to future costs for 
UST owners and operators and, as a result, minimized required 
retrofits.
    This proposal strengthens the 1988 UST regulation by increasing the 
emphasis on properly operating and maintaining equipment. The 1988 UST 
regulation required owners and operators have spill, overfill, and 
release detection equipment in place, but did not require proper 
operation and maintenance for some of that equipment. For example, EPA 
required spill prevention equipment to capture drips and spills when 
the delivery hose is disconnected from the fill pipe but did not 
require periodic testing of that equipment. Today's proposed revisions 
will require that UST equipment is operated and maintained properly, 
which will improve environmental protection. These changes also 
acknowledge improvements in technology over the last 20 years, 
including the ability to detect releases from deferred UST systems.

[[Page 71710]]

Why is EPA changing the UST regulations?

    EPA is proposing to revise the 1988 UST regulations to:
     Establish federal requirements that are similar to certain 
key provisions of the Energy Policy Act;
     Ensure owners and operators properly operate and maintain 
their UST systems;
     Include updates to current technology and codes of 
practices;
     Make technical and editorial corrections; and
     Update SPA regulation to address the proposed changes 
listed above.
    In 1988, EPA first promulgated the UST regulations (40 CFR part 
280) to prevent, detect, and clean up petroleum releases into the 
environment. The 1988 UST regulations required new UST systems to be 
designed, constructed, and installed to prevent releases; existing UST 
systems had to be upgraded to prevent releases. In addition, owners and 
operators were required to perform release detection, demonstrate 
financial responsibility, and clean up releases.
    The Energy Policy Act amended Subtitle I of the Solid Waste 
Disposal Act (SWDA), the statute that authorized the UST program. Key 
Energy Policy Act provisions (such as secondary containment and 
operator training) apply to all states receiving federal Subtitle I 
money under SWDA, regardless of their state program approval status, 
but do not apply in Indian country (or in states and U.S. territories 
that do not meet EPA's operator training or secondary containment grant 
guidelines). The U.S. has a unique legal relationship with federally 
recognized Indian Tribes. This government to government relationship 
includes recognizing the rights of Tribes as sovereign governments to 
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 regulations. EPA 
also decided to revise the 1988 UST regulations in order to achieve 
better release prevention and compliance results (see section IV.B. 
Additional Requirements for Operation and Maintenance for additional 
information). Today's proposed revisions also fulfill objectives in 
EPA's UST Tribal Strategy (August 2006), where both EPA and Tribes 
recognized the importance of requirements that ensure parity in program 
implementation among states and in Indian country. Requiring secondary 
containment will reduce releases to the environment by containing them 
within a secondary area and detecting them before they reach the 
environment. Operator training will educate UST system operators and 
help them prevent releases by complying with the regulation and 
performing better operation and maintenance of their UST systems.
    Since the beginning of the UST program, preventing petroleum and 
hazardous substance releases from UST systems into the environment has 
been one of the primary goals of the program. Although EPA and our 
partners have made significant progress in reducing the number of new 
releases, approximately 7,000 releases are discovered each year as of 
FY 2009.\1\ Lack of proper operation and maintenance of UST systems is 
a main cause of new releases. Information on sources and causes of 
releases shows that releases from tanks are less common than they once 
were. However, releases from piping and spills and overfills associated 
with deliveries have emerged as more common problems. In addition, 
releases at the dispenser are one of the leading sources of releases. 
Finally, data show that release detection equipment is only detecting 
approximately 50 percent of releases it is designed to detect. These 
problems are partly due to improper operation and maintenance (see 
section IV.B. Additional Requirements for Operation and Maintenance for 
a more detailed discussion of problems).2 3
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    \1\ Semi-Annual Report Of UST Performance Measures, End Of 
Fiscal Year 2009, http://epa.gov/oust/cat/camarchv.htm.
    \2\ Petroleum Releases At Underground Storage Tank Facilities In 
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \3\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
---------------------------------------------------------------------------

    EPA relies on two draft causes of release studies to help support 
this proposed rule. Petroleum Releases at Underground Storage Tank 
Facilities in Florida contains release data on 512 releases from new 
and upgraded tanks in Florida.\4\ The second draft study, Evaluation of 
Releases from New and Upgraded Underground Storage Tank Systems, 
contains release data on 580 releases from new and upgraded tanks in 23 
states across the Northeast, South, and Central parts of the United 
States.\5\ Taken together, these draft studies provide information 
about 1092 releases in 24 of the 50 states. The data in the two 
studies, when taken as a whole, generally provide a representative 
sampling of releases across the United States because nearly half of 
the states contributed to the studies. Both drafts were peer reviewed 
but never finalized because the passage of Energy Policy Act of 2005 
required a reallocation of personnel and resources. Even though these 
studies were never finalized, the underlying data and calculations can 
be used to support this proposed rule because that information did not 
change as a result of the peer review process.
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    \4\ Petroleum Releases At Underground Storage Tank Facilities In 
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \5\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
---------------------------------------------------------------------------

    Many USTs currently in the ground were upgraded to meet the spill, 
overfill, corrosion protection, and release detection requirements in 
the 1988 UST regulation. As these USTs continue to age, it is vital 
that we improve UST operation and maintenance and test components to 
ensure they are still working as intended. Today's proposed revisions 
to the 1988 UST regulation focus on ensuring equipment is working, 
rather than requiring UST owners and operators to replace or upgrade 
equipment already in place. The 1988 UST regulation require owners and 
operators to use equipment that could help prevent releases; today's 
proposed revisions highlight the importance of operating and 
maintaining UST equipment so releases are prevented and detected early 
in order to avoid or minimize potential soil and groundwater 
contamination.
    EPA is proposing changes to the SPA regulation (40 CFR part 281) to 
address today's proposed changes to 40 CFR part 280. By doing so, EPA 
will require states to generally adopt the 40 CFR part 280 changes 
proposed today in order to obtain or retain SPA.

What is the history of the UST laws and regulations?

    In 1984, Congress responded to the increasing threat to groundwater 
posed from leaking USTs by adding Subtitle I to the Solid Waste 
Disposal Act (SWDA). Subtitle I of SWDA required EPA to develop a 
comprehensive regulatory program for USTs storing petroleum or certain 
hazardous substances, ensuring that the environment and human health 
are protected from UST releases. In 1986, Congress amended Subtitle I 
of SWDA and created the Leaking Underground

[[Page 71711]]

Storage Tank Trust Fund to implement a cleanup program and pay for 
cleanups at sites where the owner or operator is unknown, unwilling, or 
unable to respond, or which require emergency action.
    In 1988, EPA promulgated the UST regulation (40 CFR part 280), 
which set minimum standards for new tanks and required owners and 
operators of existing tanks to upgrade, replace, or close them. In 
addition, after 1988 owners and operators were required to report and 
clean up releases from their USTs. The 1988 UST regulation set 
deadlines for owners and operators to meet those requirements by 
December 22, 1998. Owners and operators who chose to upgrade or replace 
had to ensure their UST systems included spill and overfill prevention 
equipment and were protected from corrosion. In addition, owners and 
operators were required to monitor their UST systems for releases using 
release detection (phased in during the 1990s, depending on when their 
UST systems were installed). Finally, owners and operators were 
required to have financial responsibility (phased in through 1998), 
which ensured they have financial resources to pay for cleaning up 
releases. EPA has not significantly changed the UST regulation since 
1988.
    In 1988, EPA also promulgated a regulation for state program 
approval (40 CFR part 281). Since states are the primary implementers 
of the UST program, EPA established a process where state programs 
could operate in lieu of the federal program if states met certain 
requirements and obtained state program approval from EPA. The state 
program approval regulation describes minimum requirements states must 
meet so their programs can be approved and operate in lieu of the 
federal program.
    In 2005, the Energy Policy Act further amended Subtitle I of SWDA. 
The Energy Policy Act required states receiving Subtitle I money from 
EPA meet certain requirements. EPA developed grant guidelines for 
states regarding operator training, inspections, delivery prohibition, 
secondary containment, financial responsibility for manufacturers and 
installers, public record, and state compliance reports on government 
USTs. The operator training and secondary containment requirements are 
two major pieces of the Energy Policy Act that currently do not apply 
in Indian country, but will apply when EPA finalizes today's proposed 
regulation.

What is the impact of this proposal?

    This proposal will ensure parity in program implementation among 
states and in Indian country. This proposal will achieve parity by 
adding certain requirements to the federal UST regulation (that would 
apply in Indian country) that are similar to the operator training and 
secondary containment requirements in the Energy Policy Act. This 
action will also further strengthen protection of human health and the 
environment from UST releases by increasing the emphasis on proper 
operation and maintenance of release prevention and detection 
equipment. Today's proposed revisions also reflect improvements in 
technology that allow for the ability to prevent and quickly detect 
releases for many tank systems that are currently deferred. The 
regulatory changes proposed today impose costs to owners and operators 
of existing regulated UST systems, owners and operators of certain 
deferred USTs, as well as costs associated with state review of the 
regulatory changes. EPA prepared an analysis of the potential 
incremental costs and benefits associated with this action. This 
analysis is contained in the regulatory impact analysis (RIA) titled 
Assessment Of The Potential Costs, Benefits, And Other Impacts Of The 
Proposed Revisions To EPA's Underground Storage Tank Regulations, which 
is available in the docket for this proposal. A summary of these 
impacts is provided under the Statutory Review section of this preamble 
and in the table below.

                 Costs and Benefits of the Proposed Rule
                            [2008$ millions]
------------------------------------------------------------------------
                                     7% Discount rate   3% Discount rate
------------------------------------------------------------------------
Total Annual Compliance Costs.....               $210               $210
Total Annual Avoided Costs........          $300-$740          $330-$770
Net Cost (Savings) to Society.....         ($530-$90)        ($560-$120)
------------------------------------------------------------------------

    EPA also prepared a risk assessment titled Risk Analysis to Support 
Potential Revisions to Underground Storage Tank (UST) Regulations, 
associated with the regulatory changes. The risk assessment examines 
potential impacts to groundwater and subsequent chemical transport, 
exposure and risk. It is available for review in the docket for this 
proposal.

What was EPA's process in deciding which changes to incorporate in the 
regulations?

    After the Energy Policy Act became law, EPA recognized a need to 
revise the 1988 UST regulations. The Energy Policy Act required 
additional measures to protect groundwater (either with secondary 
containment or financial responsibility for manufacturers and 
installers) and operator training requirements in states receiving 
federal Subtitle I money from EPA. However, no similar requirements 
would apply in Indian country until EPA promulgates a regulation. Both 
EPA and Tribes are committed to ensuring program parity between states 
and in Indian country, and today's proposed regulation, when final, 
will achieve this parity.
    For over 20 years, the 1988 UST regulations worked well. However, 
two decades of experience implementing the UST program have shown there 
are a number of areas where EPA can improve the UST program and 
increase environmental protection. For example, updating the regulation 
to reflect current technologies and ensuring release prevention and 
release detection equipment are properly operated and maintained have 
surfaced as important regulatory changes.
    From the start, EPA embraced an open, inclusive, and transparent 
process so all UST stakeholders had an opportunity to share their ideas 
and concerns. EPA recognizes concerns about costs to owners and 
operators and the importance of limiting requirements for retrofits. In 
developing this rule, we reached out to stakeholders involved in all 
aspects of the tank program, provided multiple opportunities for 
sharing ideas, and kept stakeholders informed of progress.
    Using information from our extensive outreach, EPA compiled 
potential proposed changes to the 1988 UST regulations. We added or 
deleted items to the list of changes based on data, analysis, costs and 
benefits resulting from the proposed changes, and EPA discretion. 
Ultimately, EPA identified

[[Page 71712]]

the items in today's proposal as most appropriate.

IV. Proposed Revisions to the Requirements for Owners and Operators of 
Underground Storage Tanks

    The following sections describe EPA's proposal, starting with 
requirements for operator training and secondary containment. The next 
four sections address changes to the existing regulation in 40 CFR part 
280, organized by topic: Additional requirements for operation and 
maintenance; proposed approach for currently deferred tanks; other 
changes to improve release prevention and release detection; and 
general updates to the 1988 UST regulation. Finally, there is a section 
describing alternative options considered.
    After each proposed regulatory change, EPA poses some questions to 
which readers may wish to respond. In addition to these specific 
questions, readers may provide comments to any other area of the 
proposal on which they wish to comment.

A. Changes To Establish Federal Requirements for Operator Training and 
Secondary Containment

1. Operator Training

What is EPA proposing?

    EPA is proposing to add a new subpart, subpart J--Operator 
Training, to 40 CFR part 280. Through subpart J, EPA is proposing the 
following training requirements for three UST system operator classes.
New Definitions
    EPA is proposing the following new terms and definitions:
     Class A operator--individual with primary responsibility 
for operating and maintaining an UST system according to applicable 
requirements established by the implementing agency. The Class A 
operator typically manages resources and personnel, such as 
establishing work assignments, to achieve and maintain compliance with 
regulatory requirements.
     Class B operator--individual with day-to-day 
responsibility for implementing applicable regulatory requirements 
established by the implementing agency. The Class B operator typically 
implements in the field aspects of operation, maintenance, and 
associated recordkeeping for an UST system.
     Class C operator--employee responsible for initially 
addressing emergencies presented by a spill or release from an UST 
system. The Class C operator typically controls or monitors dispensing 
or sale of regulated substances.
     Training program--any program established by the 
implementing agency that provides information to and evaluates the 
knowledge of a Class A, Class B, or Class C operator regarding 
requirements for UST systems.
Training Requirements
     How operators are designated--UST owners and operators 
must designate individuals for each of the three operator classes. UST 
owners and operators must designate at least one Class A and one Class 
B operator for each UST or group of USTs at a facility. UST owners and 
operators must designate all of their employees who meet the Class C 
operator definition as Class C operators.
     Who must be trained--This proposed training requirement 
covers all UST systems storing regulated substances. UST owners and 
operators must ensure designated individuals meet specific training 
requirements according to the operator class in which they are 
designated.
     Requirements for operator training--UST owners and 
operators must ensure operators in each class successfully complete 
training programs or comparable examinations that, at a minimum, cover 
these areas:
    [cir] Class A operator--spill and overfill prevention; release 
detection; corrosion protection; emergency response; product and 
equipment compatibility; financial responsibility; notification and 
storage tank registration; temporary and permanent closure; related 
reporting and recordkeeping; environmental and regulatory consequences 
of releases; and training requirements for Class B and C operators. 
Training for Class A operators is general on all listed areas.
    [cir] Class B operator--operation and maintenance; spill and 
overfill prevention; release detection and related reporting; corrosion 
protection and related testing; emergency response; product and 
equipment compatibility; reporting and recordkeeping; environmental and 
regulatory consequences of releases; and training requirements for 
Class C operator. Training for Class B operators may be general or 
specific to a Class B operator's site.
    [cir] Class C operator--appropriate action to take in response to 
emergencies (including situations posing an immediate danger or threat 
to the public or environment and that require immediate action) or 
alarms caused by spills or releases from an UST system. Training for 
Class C operators may be general or specific to a Class C operator's 
site.
     Training programs for Class A and B operators must, at a 
minimum, teach and evaluate their knowledge on the purpose, methods, 
and functions of items listed in the minimum training areas above. 
Training programs for Class C operators must teach and evaluate their 
knowledge of the items listed in the minimum training areas above.
     A training program must meet the minimum requirements 
discussed above and evaluate knowledge through a test, practical 
demonstration, or another approach acceptable to the implementing 
agency. In lieu of a training program, all three operator classes must 
pass comparable examinations that assess their knowledge in the minimum 
training areas above.
     The evaluation component of training programs and 
comparable examinations must be developed and administered by an 
independent organization, the implementing agency, or delegated 
authority.
     When designated operators must complete operator 
training--UST owners and operators must ensure all designated Class A, 
B, and C operators are trained or successfully complete a comparable 
examination according to criteria and within time frames in the 
schedule below. Phase in is based on when USTs were installed because 
newer UST systems tend to have fewer releases than older UST 
systems.\6\
---------------------------------------------------------------------------

    \6\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.

[[Page 71713]]

                                     Phase-In Schedule for Operator Training
----------------------------------------------------------------------------------------------------------------
                 Criteria                    Date when operator training or comparable  examination is required
----------------------------------------------------------------------------------------------------------------
One or more USTs at the facility were      One year after effective date of rule.
 installed on or before 12/22/1988.
No USTs at the facility were installed on  Two years after effective date of rule.
 or before 12/22/1988 and at least one
 UST at the facility was installed on or
 before 12/22/1998.
All USTs at the facility were installed    Three years after effective date of rule.
 after 12/22/1998.
----------------------------------------------------------------------------------------------------------------

    After the last date in the table above, UST owners and operators 
must ensure designated Class A and B operators are trained within 30 
days of assuming duties. Designated Class C operators must be trained 
before assuming their duties.
     Retraining--Class A and B operators of UST systems 
determined by the implementing agency to be out of compliance must 
complete a training program or comparable examination in accordance 
with requirements in Sec.  280.242. At a minimum, training must cover 
the area(s) determined to be out of compliance. Retraining must occur 
within 30 days from the date an implementing agency determines an UST 
system is out of compliance. Retraining is not required if:
    [cir] Class A and B operators take annual refresher training which 
covers all applicable training requirements for their operator class; 
or
    [cir] The implementing agency, at its discretion, grants a waiver 
relinquishing the Class A and B operators from meeting the retraining 
requirement.
     Documentation--UST owners and operators must maintain 
documents that identify all operators by class and demonstrate that 
training or retraining, if necessary, was completed. These documents 
must contain:
    [cir] A list of designated Class A, B, and C operators for each UST 
facility--Include names, operator class trained, date assumed duties, 
date completed initial training, and date of any retraining. These 
records must be maintained for all Class A, B, and C operators at the 
facility for the previous three years.
    [cir] Proof of training or retraining--A paper or electronic record 
that, at a minimum, includes name of trainee, date trained, and 
operator class. In addition, records from classroom or field training 
programs or a comparable examination, must be signed by the trainer or 
examiner and include the printed name of the trainer or examiner, 
company name, address, and phone number. Records from computer-based 
training, at a minimum, must include the name of the training program 
and web address, if Internet-based. Records of retraining must include 
those areas on which the Class A or B operator was retrained. Records 
of training or retraining must be maintained as long as the Class A, 
Class B, and Class C operators are designated at the facility.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing operator training requirements to ensure that all 
regulated UST systems are operated by properly trained individuals. The 
operator training provision of the Energy Policy Act requires state 
implementing agencies, as a condition of receiving federal Subtitle I 
money, develop 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.\7\ The 
operator training grant guidelines apply to most UST systems in the 
United States; however, not all are covered. UST systems not covered 
include those in Indian country where EPA is the primary implementing 
agency, and in states and territories that do not meet the requirements 
of EPA's operator training grant guidelines.
---------------------------------------------------------------------------

    \7\ Grant Guidelines To States For Implementing The Operator 
Training Provision Of The Energy Policy Act Of 2005: http://www.epa.gov/oust/fedlaws/optraing.htm.
---------------------------------------------------------------------------

    Through today's proposal, EPA is closing the gap in coverage and 
ensuring all operators are trained according to their level of 
responsibility, as designated as Class A, B, or C. Sufficiently 
training UST operators will increase compliance with regulatory 
requirements. In addition, operator training may decrease UST system 
releases by educating Class A, B, and C operators about their UST 
system requirements, and may result in greater protection of human 
health and the environment.
    Today's proposed operator training regulation for UST owners and 
operators is consistent with the requirements in EPA's operator 
training grant guidelines for states. In both, EPA establishes minimum 
operator training requirements, yet allows flexibility to tailor 
training programs for specific needs. This means that although there 
may be variations among operator training programs, all Class A, B, and 
C operators will be trained to meet minimum requirements.
    Definitions--EPA is proposing specific definitions of the three 
operator classes to distinguish them from the term operator defined in 
the 1988 UST regulation. Only if a Class A, B, or C operator meets the 
definition of operator in the 1988 UST regulation will he or she then 
be subject to the same responsibilities and liabilities as an operator. 
EPA's proposed definitions of Class A, B, and C operators do not 
relieve owners and operators, as defined in the 1988 UST regulation, 
from any legal responsibility. EPA based the proposed three operator 
class definitions on duties each typically performs at UST facilities.
    EPA is proposing a definition for training program. It is important 
that training programs for Class A, B, and C operators include both 
sharing information and evaluating knowledge.
    How operators are designated--EPA is proposing how UST owners and 
operators designate the three operator classes for their facilities. 
EPA is taking the position that designating at least one Class A and B 
operator at each facility is sufficient. Class A and B operators can 
provide adequate training to Class C operators, which should ease UST 
owners' and operators' ability to comply with this requirement. Because 
a Class C operator's duties typically place him or her in a position of 
providing initial response to an emergency, any UST owner's and 
operator's employee who meets the Class C operator definition must be 
designated as such and trained in emergency response.
    EPA will allow UST owners and operators to designate contractors as 
their Class A and B operators as long as they are responsible for all 
areas required in the training for the class of operator designated. 
UST owners and operators must maintain documentation containing 
individual names of Class A and B contractors who complete operator 
training. It will be easier for implementing agencies to verify 
training, retraining, and refresher training using individual names 
rather

[[Page 71714]]

than company names. All Class C operators must be employees of the UST 
system owner and operator.
    EPA wants to ensure Class A and B operator training addresses all 
components and encompasses the entire UST system. If an UST system is 
out of compliance and the implementing agency determines retraining is 
required, Class A or B operators must either be retrained or take 
annual refresher training. EPA cautions UST owners and operators to 
consider whether contractors serving as Class A or B operators can be 
designated. Because some contractors specialize in UST services, they 
might not be eligible to be Class A or B operators. For example, if a 
contractor is only responsible for release detection compliance, that 
contractor would not be eligible to be a Class A or B operator because 
he or she is not responsible for all required training areas.
    EPA realizes many UST owners and operators may want to designate 
one person at an UST facility as responsible for all Class A, B, and C 
operator duties. EPA will allow one person to serve in multiple 
operator classes; however, that person must be trained for each class 
designated.
    Who must be trained--When final, today's proposal will require 
training for designated Class A, B, and C operators at UST systems 
regulated under Subtitle I. This includes UST systems of all attended 
and unattended facilities. An unattended UST facility means a Class A, 
B, or C operator may not be present during times when a facility is 
operating. Nonetheless, even at unattended UST facilities, designated 
Class A, B, and C operators must still meet the operator training 
requirement.
    Requirements for operator training--EPA based the three operator 
classes on duties each typically performs at UST facilities. Building 
on that, EPA is proposing each person designated in an operator class 
pass an examination comparable to the training program, or meet a 
specific training program, which will:
     For Class A operator, teach and evaluate his or her 
knowledge to make informed decisions regarding compliance and determine 
whether appropriate people are fulfilling the operation, maintenance, 
and recordkeeping requirements for UST systems.
     For Class B operator, teach and evaluate his or her 
knowledge and skills to implement UST regulatory requirements on 
typical UST system components or site-specific equipment at the UST 
facility.
     For Class C operator, teach and evaluate his or her 
knowledge to take appropriate action in response to emergencies 
(including situations posing an immediate danger or threat to the 
public or environment and that require immediate action) or alarms 
caused by spills or releases from an UST system.
    For each class of operator, EPA considered developing specific 
training curricula that would prescribe length of training, areas to 
cover, and trainer qualifications. EPA decided that providing the 
general criteria requirements presented in today's proposal is the best 
approach because they provide flexibility while being comparable to 
EPA's operator training grant guidelines for states and ensuring each 
class of operator is trained.
    EPA proposes not to restrict who may develop and administer the 
training component of a training program. However, to avoid potential 
conflicts of interest, EPA proposes to only allow independent 
organizations to develop and administer the evaluation component 
training programs and comparable examinations, as long as they meet the 
minimum requirements in today's proposal. EPA considers independent 
organizations to include a wide array of program providers who are not 
affiliated with the Class A, B, or C operators they are training. For 
example, Class A or B operators can train other Class A or B operators 
at the same UST facility, but they cannot develop or conduct the 
evaluation component of the training program for those operators. 
However, as discussed earlier, Class A or B operators can train and 
evaluate Class C operators. In addition, the implementing agency may 
develop and administer a training program or comparable examination.
    Although not specifically listed in the regulation, EPA will allow 
a variety of ways to train operators. These include classroom, 
computer-based, hands on, and any combination of these.
    Accepted in lieu of completing a training program, Class A, B, or C 
operators can pass a comparable examination (for example, via 
classroom, Internet, or computer program) that meets the requirements 
for operator training criteria described in today's proposal.
    When designated operators must complete operator training--EPA is 
proposing that UST owners and operators ensure all Class A, B, and C 
operators successfully complete a training program or a comparable 
examination over three years, based on UST installation dates. This 
phased-in approach will stagger the need for operator training and 
reduce a rush at the end of the initial three year period. Since older 
USTs potentially pose a greater risk to the environment, EPA decided 
Class A, B, and C operators of those systems should be trained first.
    After the initial three year phase-in period and for consistency 
with EPA's operator training grant guidelines for states, EPA is 
proposing new Class A, B, and C operators be trained as follows:
     Class A and B operators must be trained within 30 days of 
assuming duties. 30 days are sufficient for Class A and B operators to 
receive operator training.
     Class C operators must be trained before they assume their 
duties; it is critical that they are trained immediately in order to 
respond to emergencies.
    Retraining--UST system noncompliance can be an indication that 
Class A and B operators are not doing what is necessary to maintain 
compliance. If an UST system is out of compliance, then generally, 
Class A and B operators designated for that UST system need to be 
retrained. Retraining must, at a minimum, cover those areas determined 
by the implementing agency to be out of compliance. Retraining must be 
completed within 30 days of the implementing agency making a final 
determination of noncompliance. EPA is proposing to allow annual 
refresher training in lieu of retraining as long as all training areas 
required by regulation are covered. Refresher training must have been 
in place at the time the implementing agency determined the UST system 
was out of compliance.
    EPA is also proposing to allow implementing agencies, at their 
discretion, to waive the retraining requirement. EPA recommends that 
such a waiver be in writing. In granting a waiver, EPA expects the 
implementing agency to consider factors such as the severity and areas 
of noncompliance. In those instances where UST system noncompliance 
violations do not warrant retraining, EPA encourages implementing 
agencies to provide information to Class A and B operators so they are 
able to return their facilities to compliance. These allowances will 
provide greater flexibility for UST owners and operators to meet the 
retraining requirement. This proposal is consistent with EPA's 
retraining requirement for noncompliance with significant operational 
compliance requirements and an annual refresher training allowance 
provided in our operator training grant guidelines for states.
    EPA considered requiring retraining when UST facilities change 
equipment,

[[Page 71715]]

but decided this would be an unnecessary burden on both the regulated 
community and implementing agencies. If an UST system is out of 
compliance because of an equipment change, EPA is proposing that the 
implementing agency require that UST owners and operators ensure Class 
A and B operators are retrained as proposed above.
    Documentation--EPA is proposing UST owners and operators maintain a 
list of Class A, B, and C operators at each UST facility for the 
previous three years. Keeping this list for three years is adequate 
because it is consistent with the inspection frequency provided by the 
Energy Policy Act. Owners and operators must have a list of trained 
operators for the past three years each time they are inspected. In 
addition, UST owners and operators must also document verification of 
training or retraining, as appropriate, for each class of operator. EPA 
will require basic information to document Class A, B, and C operators 
and confirm they are appropriately trained. For example, classroom 
training must be signed by the trainer; computer based training does 
not require a signature but must indicate the name of the training. 
Records verifying training or retraining must be maintained as long as 
the Class A, B, and C operators are designated at the facility. This 
time frame will allow owners and operators to demonstrate Class A, B, 
and C operators are trained as long as they are designated at the 
facility.

What issues related to this change does EPA request comment or 
additional data on?

     Should EPA impose a limit on the number of USTs or 
facilities a Class A or B operator is responsible for? If so, what 
should the limit be and why?
     EPA is seeking information about the number of unattended 
regulated UST facilities in the United States. How many regulated UST 
facilities are unattended in the United States?
     EPA is basing the initial period for meeting the training 
requirement on the UST installation date. Should we consider other 
criteria? If so, what and why?
     Is there a need for a phased-in schedule for operator 
training? If so, is EPA's proposed schedule reasonable?
     Does EPA's proposal prohibit training approaches currently 
available? If so, which ones and why?
     Should EPA prohibit particular training approaches? If so, 
which ones and why?
     Although operators can access any available information 
source to obtain necessary knowledge of UST systems, in order to 
address potential conflicts of interest concerns, only independent 
organizations are allowed to develop and administer the evaluation 
component of training programs and comparable examinations. Are there 
cases where EPA should consider exceptions to this proposed 
requirement?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
2. Secondary Containment

What is EPA proposing?

    EPA is proposing to add in 40 CFR part 280 secondary containment 
and interstitial monitoring requirements for new and replaced tanks and 
piping. In addition, UST systems must have under-dispenser containment 
for new dispenser systems.
New Definitions
    EPA is proposing the following new terms and definitions:
     Dispenser system--Equipment located above ground that 
meters the amount of regulated substances transferred to a point of use 
outside the UST system, such as a motor vehicle. This system includes 
equipment necessary to connect the dispenser to the UST system.
     Replaced--
    [cir] For a tank: To remove a tank and install another tank.
    [cir] For piping: To remove 50 percent or more of piping and 
install other piping, excluding connectors, connected to a single tank. 
For tanks with multiple piping runs, this definition applies 
independently to each piping run.
     Secondary containment or secondarily contained--A release 
prevention and release detection system for a tank and/or piping. This 
system has an inner and outer barrier with an interstitial space that 
is monitored for leaks.
     Under-dispenser containment (UDC)--Containment underneath 
a dispenser system designed to prevent dispenser system leaks from 
reaching soil or groundwater.
Secondary Containment
    EPA is proposing owners and operators install secondary containment 
(including interstitial monitoring) for new or replaced tanks and 
piping installed after the effective date of the final UST regulation. 
EPA is not proposing secondary containment for the following types of 
piping:
     Suction piping that meets the requirements of Sec.  
280.41(b)(2)(i) through (v), sometimes called safe suction piping; and
     Piping associated with field-constructed tanks and airport 
hydrant fuel distribution systems.
    EPA is proposing secondarily contained tanks and piping be:
     Able to contain regulated substances leaked from the 
primary containment until they are detected and removed;
     Able to prevent release of regulated substances to the 
environment at any time during the operational life of the UST system; 
and
     Monitored for a leak at least once every 30 days using 
interstitial monitoring according to Sec.  280.43(g).
    In addition to the requirements above, pressurized piping must have 
an automatic line leak detector according to Sec.  280.44(a).
    EPA is proposing to remove the option in Sec.  280.42 for owners 
and operators to use a release detection method other than interstitial 
monitoring for hazardous substance USTs installed after the effective 
date of the final UST regulation.
Under-Dispenser Containment
    EPA is proposing owners and operators install under-dispenser 
containment beneath new dispenser systems at UST systems. EPA will 
incorporate this new requirement by adding a new subsection (f) to 
Sec.  280.20, which will require under-dispenser containment beneath 
each new dispenser system at an UST system.
    EPA is proposing a dispenser system be considered new when both the 
dispenser system and equipment needed to connect the dispenser system 
to the UST system are installed at an UST facility. The equipment 
connecting the dispenser system to the UST system includes check 
valves, shear valves, unburied risers or flexible connectors, or other 
transitional components beneath the dispenser that connect it to 
underground piping. Finally, under-dispenser containment must be liquid 
tight on its sides, bottom, and at any penetrations and allow for 
visual inspection and access to the components in the containment 
system, or must be continuously monitored for leaks from the dispenser 
system.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing this change to prevent regulated substances from 
reaching the environment and ensure a consistent level of environmental 
protection for regulated UST systems across the United States. Data 
from

[[Page 71716]]

release sites show a higher number of releases from single-walled tanks 
and piping when compared to secondarily contained systems.\8 9\ 
Releases could be reduced for tanks and piping if they are secondarily 
contained.
---------------------------------------------------------------------------

    \8\ Petroleum Releases At Underground Storage Tank Facilities In 
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \9\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
---------------------------------------------------------------------------

    The Energy Policy Act requires state implementing agencies, as a 
condition of receiving federal Subtitle I money, implement additional 
measures to protect groundwater. Under the law, state implementing 
agencies' choices to protect groundwater were secondary containment 
(including under-dispenser containment) or financial responsibility for 
manufacturers and installers (and installer certification). 54 of 56 
state implementing agencies chose secondary containment. The Energy 
Policy Act did not specifically require additional measures to protect 
groundwater in Indian country. As the primary implementer for more than 
2,600 UST systems in Indian country, \10\ EPA is proposing secondary 
containment for new and replaced tanks and piping along with under-
dispenser containment beneath all new dispenser systems at UST systems. 
Over the last seven years, approximately 25 new UST systems per year 
were installed in Indian country.\11\ The final UST regulation will 
bring UST systems in Indian country to the same level of environmental 
protection as those regulated by states.
---------------------------------------------------------------------------

    \10\ Semi-Annual Report Of UST Performance Measures, End Of 
Fiscal Year 2009, http://epa.gov/oust/cat/camarchv.htm.
    \11\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

    The Energy Policy Act requires states that receive federal Subtitle 
I money (and that choose the secondary containment option) to have 
secondary containment and under-dispenser containment for tanks, 
piping, and dispensers only if they are installed or replaced within 
1,000 feet of an existing community water system or potable drinking 
water well.\12\ However, EPA is proposing all new and replaced tanks 
and piping have secondary containment and UST systems have under-
dispenser containment beneath all new dispenser systems for the 
following reasons:
---------------------------------------------------------------------------

    \12\ Title XV, subtitle B, Section 1530 of Energy Policy Act of 
2005, 109th Congress Public Law 58, August 8, 2005.
---------------------------------------------------------------------------

     Nearly all new and replaced tanks and piping are installed 
within 1,000 feet of an existing community water system or potable 
drinking water well. We assume that any UST listed with a commercial 
ownership type (i.e., gas station) is located within 1,000 feet of an 
on-site well or public water line because nearly all commercially-owned 
facilities with USTs require water utilities in order to operate and 
all privately owned facilities (i.e., fleet fueling for non-marketers) 
are also assumed to be in close proximity to some type of water supply 
given that these sites are typically combined with other functional 
operations (office, maintenance, manufacturing, etc.) and require water 
for restrooms, water fountains, shops, etc.;\13\
---------------------------------------------------------------------------

    \13\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

     Some state implementing agencies that require secondary 
containment only within 1,000 feet of one of these water sources have 
informed EPA that installations of single-walled tanks or piping are 
not occurring; and
     Secondary containment and under-dispenser containment will 
help protect other sensitive areas, such as designated source water 
protection areas, natural springs, and surface waters.
    EPA is not proposing secondary containment for piping that meets 
the requirements of 280.41(b)(2)(i) through (v), sometimes called safe 
suction piping because it is currently not required to meet release 
detection requirements. This type of piping uses a suction pump to 
deliver regulated substances from the UST to the dispenser. Safe 
suction piping operates at less than atmospheric pressure, slopes back 
towards the UST so regulated substances drain to the UST if suction is 
lost, and has only one check valve located close to the suction pump. 
As discussed in the 1988 UST regulation preamble, these characteristics 
ensure that little, if any, regulated substances will be released if a 
break occurs in the line.\14\
---------------------------------------------------------------------------

    \14\ Preamble to 40 CFR part 280, FR Vol. 53, No. 185, Friday, 
September 23, 1988, p. 37154.
---------------------------------------------------------------------------

    EPA is not proposing secondary containment for piping associated 
with field-constructed tanks and airport hydrant fuel distribution 
systems. EPA understands this piping typically is larger diameter and 
runs for long distances, making it difficult to slope the piping back 
to an interstitial monitoring area. In addition, EPA understands it is 
difficult to keep water out of the interstitial area of these long 
piping runs. Since nearly all this piping is steel, corrosion can occur 
in the interstitial area when an electrolyte, such as water, is in the 
interstitial area. This corrosion can significantly shorten the 
piping's life. Corrosion protection safeguards piping in contact with 
the ground, but does not protect the inside part of piping from 
corrosion. To prevent corrosion caused by water in the interstitial 
area, owners and operators would need to add corrosion protection 
inside the interstitial area of piping, which EPA realizes would be 
difficult, if not impossible, to do. Given all of these issues, 
secondary containment for these piping runs could potentially reduce 
environmental protection.
    EPA is proposing owners and operators install tank and piping 
secondary containment that: will contain regulated substances leaked 
from the primary containment until they are detected and removed; is 
able to prevent the release of regulated substances to the environment 
at any time during the operational life of the UST system; and is 
monitored for a leak at least once every 30 days using interstitial 
monitoring. These requirements are consistent with the 1988 UST 
regulation for secondarily contained hazardous substance tanks (Sec.  
280.42) and are necessary to help prevent releases to the environment.
    The secondary containment requirement applies to new or replaced 
underground tanks and piping regulated under Subtitle I except those 
excluded by regulation at 40 CFR 280.10(b) and those deferred by 
regulation at 40 CFR 280.10(c). All petroleum and hazardous USTs are 
intended to meet the secondary containment requirement with the 
corresponding use of interstitial monitoring. EPA's current regulation 
allows variances to the use of interstitial monitoring as the method of 
release detection for hazardous substance USTs. Since these variances 
are no longer an option, EPA is eliminating this language to avoid 
confusion.
    EPA is not proposing secondary containment and/or under-dispenser 
containment for UST systems where installation began on or before the 
effective date of the final UST regulation. Similar to the definition 
of existing tank system in the 1988 UST regulation, EPA considers an 
installation to have begun after the owner or operator has obtained all 
federal, state, and local approvals or permits and:

[[Page 71717]]

     Physical construction or installation began; or
     The owner or operator entered into a contractual agreement 
that cannot be cancelled or modified without substantial loss and 
physical construction or installation will commence within a reasonable 
time frame.
    Requiring retrofits would be a significant financial burden for 
owners and operators. EPA anticipates owners and operators will replace 
single-walled UST systems as they age. When owners and operators 
replace singled-walled UST systems after the effective date of the 
final UST regulation, new tanks and piping will need to be secondarily 
contained and new dispensers will have under-dispenser containment.
    To implement secondary containment and under-dispenser containment, 
EPA is proposing to add new terms and definitions: Dispenser system; 
replaced; secondary containment or secondarily contained; and under-
dispenser containment. EPA defined these terms so they are no less 
stringent than the definitions contained in EPA's secondary containment 
grant guidelines to state implementing agencies.\15\
---------------------------------------------------------------------------

    \15\ Grant Guidelines To States For Implementing The Secondary 
Containment Provision Of The Energy Policy Act Of 2005: http://epa.gov/oust/fedlaws/secondco.htm.
---------------------------------------------------------------------------

    EPA's secondary containment grant guidelines provide states with 
significant flexibility to define ``replaced'' as it applies to piping. 
The guidelines require that states, at a minimum, consider replacing 
piping when 100 percent of piping, excluding connectors, connected to a 
single UST is removed and other piping is installed. When deciding how 
to best define replaced as it applies to piping, EPA analyzed state UST 
regulations for approximately 40 states that currently require 
secondary containment and interstitial monitoring.\16\ About 75 percent 
of these states have requirements as stringent as, or more stringent 
than, the 50 percent threshold EPA proposes.
---------------------------------------------------------------------------

    \16\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

    In addition, EPA performed a screening analysis using limited, 
readily-available data to determine when repair cost approached 
replacement cost (and at what point owners and operators were most 
likely to replace the entire piping run rather than repair it).\17\ The 
screening analysis suggested replacement cost of an entire piping run 
became equal to repair cost when about 60 percent of a piping run is 
repaired. Based on this information, EPA is proposing owners and 
operators secondarily contain an entire piping run when 50 percent or 
more of a piping run is replaced. This is consistent with most state 
implementing agency decisions and existing economic incentives. This 
will also prevent owners and operators from leaving small pipe sections 
in the ground to avoid this proposed secondary containment requirement. 
If an UST has multiple piping runs, the secondary containment 
requirement will only apply to those where 50 percent or more of piping 
is replaced. Currently installed piping runs, and piping runs where 
less than 50 percent of the piping is repaired, will not require 
secondary containment.
---------------------------------------------------------------------------

    \17\ IEc 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, the 
piping associated with each STP would be considered separate piping 
runs. For suction piping, a piping run is the piping that runs between 
the tank and the suction pump.
    Consistent with EPA's current policy, if an owner or operator 
chooses to reinstall a secondarily contained tank or piping that was 
previously installed, that tank or piping must meet new tank and piping 
standards in Sec.  280.20 at the time of installation.
    The Energy Policy Act defined secondary containment as a release 
detection and prevention system that meets the interstitial monitoring 
requirement in Sec.  280.43(g). Based on this definition, EPA is 
proposing to include interstitial monitoring as part of the secondary 
containment definition. Therefore, secondary containment means having 
an interstitial space to monitor and monitoring that space for a leak. 
Consistent with the 1988 UST regulation release detection requirements, 
EPA is proposing interstitial monitoring of new and replaced 
secondarily contained tanks and piping at least once every 30 days.
    EPA is proposing owners and operators install under-dispenser 
containment beneath new dispenser systems at UST systems. Data from 
release sites show dispensers are one of the leading release 
sources.18 19 Under-dispenser containment is located 
underground and will prevent some releases by containing small releases 
that occur inside and beneath the dispenser. EPA considers a dispenser 
system new when both the dispenser and equipment needed to connect the 
dispenser to an UST system are installed at an UST facility. EPA is 
proposing check valves, shear valves, unburied risers or flexible 
connectors, and other transitional components be included as equipment 
that connects a dispenser to an UST system. This equipment is located 
beneath the dispenser and typically connects underground piping to a 
dispenser. If an owner or operator replaces a dispenser but uses 
existing equipment to connect a dispenser to the UST system, then 
under-dispenser containment is not required.
---------------------------------------------------------------------------

    \18\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \19\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
---------------------------------------------------------------------------

    To contain small releases from the dispenser, piping, and other 
equipment, the under-dispenser containment must be liquid tight. EPA is 
proposing under-dispenser containment be liquid tight on its sides, 
bottom, and at any penetrations through the containment. EPA is 
proposing periodic testing of under-dispenser containment in the 
secondary containment tests section (see section B-4). In addition, an 
owner or operator must have access to and be able to visually inspect 
the containment. If visual inspection and access are not available, 
then under-dispenser containment must be continuously monitored to 
ensure containment is intact and free of liquids. Continuous monitoring 
and visual inspections (required in the proposed walkthrough 
inspections discussed in section B-1) will ensure problems with the 
under-dispenser containment will be detected before a release to the 
environment occurs.
    The Energy Policy Act requires under-dispenser containment beneath 
new motor fuel dispenser systems at UST systems. However, EPA is aware 
of a small number of dispenser systems which do not dispense motor fuel 
(for example, kerosene dispensers). Small releases can occur at these 
dispensers in the same manner as they occur at motor fuel 
dispensers.20 21 22 Therefore, EPA is

[[Page 71718]]

proposing owners and operators install under-dispenser containment 
beneath new dispenser systems at UST systems, irrespective of whether 
they dispense motor fuel.
---------------------------------------------------------------------------

    \20\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \21\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
    \22\ 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.
---------------------------------------------------------------------------

What issues related to this change does EPA request comment or 
additional data on?

     If you have any of the following data, please provide the:
    [cir] Number of UST systems not installed within 1,000 feet of any 
existing community water system or potable drinking water well.
    [cir] Number of non-motor fuel dispensers connected to UST systems 
in the United States.
    [cir] Typical length or percentage of piping repaired during a 
typical repair.
    [cir] Costs, types and frequency of piping repairs and 
replacements.
     Are there regulatory incentives that EPA should consider 
to encourage owners and operators to move toward secondary containment? 
If yes, what are those incentives?
     In addition to the three types of piping identified for 
exclusion by EPA, are there other types of piping for which secondary 
containment is impractical or unnecessary? If yes, what are those types 
and why is secondary containment impractical or unnecessary?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.

B. Additional Requirements for Operation and Maintenance

    The 1988 UST regulation required owners and operators to install 
improved UST system equipment to detect and prevent releases; however, 
it did not require operation and maintenance for all of that equipment. 
Owners and operators need to properly operate and maintain their UST 
system equipment in order to prevent and quickly detect releases. 
Therefore, we propose to add requirements for periodic spill, overfill, 
secondary containment, and release detection testing along with 
periodic walkthrough inspections to prevent and quickly detect 
releases.
    When a test or inspection occurs, owners and operators may find 
problems with the UST system. When a test or inspection indicates a 
problem, owners and operators must repair the problem to remain in 
compliance with the 1988 UST regulation. Section 280.33 of the 1988 
regulation describes repair requirements for UST systems.
1. Walkthrough Inspections

What is EPA proposing?

    In Sec.  280.37, EPA is proposing owners and operators perform 
walkthrough inspections of their UST systems at least once every 30 
days and meet one of these three options:
     Option 1: Conduct operation and maintenance walkthrough 
inspections that, at a minimum and as appropriate to the facility, 
check the following equipment:
    [cir] Spill prevention equipment
    [dec222] Open and visually check for any damage;
    [dec222] Remove any liquid or debris;
    [dec222] Check each fill cap to make sure it is securely on the 
fill pipe; and
    [dec222] If secondarily contained with continuous interstitial 
monitoring, check for a leak in the interstitial area.
    [cir] Sumps and dispenser cabinets
    [dec222] Open and visually check for any damage, leaks to the 
containment area, or releases to the environment;
    [dec222] Remove any liquid (in contained areas) or debris; and
    [dec222] If contained areas are secondarily contained with 
continuous interstitial monitoring, check for a leak in the 
interstitial area.
    [cir] Monitoring/observation wells
    [dec222] Check covers to make sure they are secured.
    [cir] Cathodic protection
    [dec222] Check to make sure impressed current cathodic protection 
rectifiers are on and operating; and
    [dec222] Ensure records of three year cathodic protection testing 
and 60 day impressed current system inspections are reviewed and 
current.
    [cir] Release detection
    [dec222] Check to make sure the release detection system is on and 
operating with no alarm conditions or other unusual operating 
conditions present;
    [dec222] Check any devices such as tank gauge sticks, groundwater 
bailers, and hand-held vapor monitoring devices for operability and 
serviceability; and
    [dec222] Ensure records of release detection testing are reviewed 
monthly and current.
     Option 2--Conduct operation and maintenance walkthrough 
inspections according to a standard code of practice developed by a 
nationally recognized association or independent testing laboratory 
that are comparable to the specific requirements listed above.
     Option 3--Conduct operation and maintenance walkthrough 
inspections developed by the implementing agency that are comparable to 
the specific requirements listed above.
    EPA is proposing owners and operators maintain walkthrough 
inspection records for one year. Each record must include a listing of 
each area checked, whether each area checked was acceptable or needed 
to have some action taken, and a description of actions taken to 
correct an issue.

Why is EPA proposing this change? What background information is 
available about this change?

    The 1988 UST regulation focused on owners and operators installing 
improved UST equipment, but did not require significant equipment 
operation and maintenance activities. After more than 20 years of 
experience with UST requirements, EPA finds both using improved 
equipment and operating and maintaining UST equipment are necessary to 
protect human health and the environment. 12 states have adopted 
monthly walkthrough inspection requirements for their UST facilities. 
Of those states, only California has been implementing the requirement 
long enough to provide input about the effectiveness of walkthrough 
inspections. California indicates that, according to UST inspectors and 
industry people, the monthly inspections decreased the number of 
violations found, reduced the frequency and duration of release 
detection alarms, prompted better record keeping, and resulted in 
overall better operations at the UST facility.\23\
---------------------------------------------------------------------------

    \23\ Email from Laura Fisher, California State Water Resources 
Control Board, April 30, 2010.
---------------------------------------------------------------------------

    As part of operating and maintaining UST systems, EPA proposes 
owners and operators conduct walkthrough inspections at least once 
every 30 days. Periodic walkthrough inspections will help owners and 
operators detect problems earlier, resulting in fewer releases to the 
environment and reduced environmental impacts of releases that reach 
the environment.
    Walkthrough inspections are designed to verify proper function or 
operating condition of easily accessible UST system components and 
ensure required records are current. These inspections typically 
include reviewing records and checking components to confirm function 
or condition. For example, owners and operators will be required to 
review current records and ensure equipment is operating properly; 
containment sumps are free of liquid and debris; and leaks are not 
occurring at dispensers, submersible turbine pumps, and other areas. 
EPA used the Petroleum Equipment Institute's Recommended Practice 900, 
Recommend Practices for the Inspection and Maintenance of UST Systems, 
as a

[[Page 71719]]

guide as we developed the proposed walkthrough inspection requirements. 
EPA is proposing allowing owners and operators to hire a third party to 
conduct walkthrough inspections instead of performing the inspection 
themselves.
    EPA is proposing three options for owners and operators to choose 
from in conducting walkthrough inspections: follow the specific 
requirements (described below) appropriate to the UST facility; use a 
code of practice developed by a nationally recognized association or 
independent testing laboratory; or follow requirements developed by the 
implementing agency. At a minimum, walkthrough inspections conducted 
according to a code of practice or developed by the implementing agency 
need to be comparable to the following requirements. The specific 
requirements proposed and reasons for their inclusion in the regulation 
are:
     For spill prevention equipment--open each spill prevention 
area, check for damage, and remove any liquid or debris; check the fill 
cap to make sure it is securely on the fill pipe; and for secondarily 
contained spill prevention equipment with continuous interstitial 
monitoring, check for a leak in the interstitial area.
    [cir] Damaged spill prevention equipment can release regulated 
substances into the environment and liquid or debris can reduce the 
equipment's capacity. Fill caps not secure on the fill pipe can result 
in vapors exiting the tank and can render overfill prevention 
inoperable in tanks that use flow restrictors in the vent line. Some 
spill prevention equipment construction materials may not be designed 
to contain regulated substances for long periods of time. For spill 
prevention equipment with two walls and continuous interstitial area 
monitoring, owners and operators need to check the monitoring device or 
area to make sure the interstitial monitoring is operating properly and 
does not indicate a leak in the interstitial area.
     For sumps, including submersible turbine pump sumps and 
transition sumps--open and visually check for damage, leaks to the 
containment area, or releases to the environment; remove any liquid (in 
contained sumps) or debris; and for secondarily contained sumps with 
continuous interstitial monitoring, check for a leak in the 
interstitial area.
    [cir] Drips and other small releases from damaged components 
contained by the sump can result in regulated substances remaining in 
the sump. Damaged sumps can release regulated substances into the 
environment. Liquid or debris can reduce the capacity of a contained 
sump. Some sump construction materials may not be designed to contain 
regulated substances for long periods of time. For sumps with two walls 
and continuous interstitial area monitoring, owners and operators need 
to check the monitoring device or area to make sure the interstitial 
monitoring is operating properly and does not indicate a leak in the 
interstitial area.
     For dispenser cabinets--open each cabinet; visually check 
for damage, leaks to the containment area, or releases to the 
environment; remove any liquid (in dispensers with under-dispenser 
containment) or debris; and for dispenser sumps with continuous 
interstitial monitoring, check for a leak in the interstitial area.
    [cir] Visual checks for dispensers are important because the 1988 
UST regulation does not require release detection for dispensers. Drips 
and other small releases from damaged components in the dispenser 
cabinet can result in regulated substances remaining in the dispenser 
sump or being released to the environment. Damaged under-dispenser 
containment (if present) can release regulated substances into the 
environment. If under-dispenser containment is present, liquid or 
debris can reduce the capacity of the containment sump. Some under-
dispenser containment construction materials may not be designed to 
contain regulated substances for long periods of time. For dispenser 
sumps with two walls and continuous interstitial area monitoring, 
owners and operators need to check the monitoring device or area to 
make sure the interstitial monitoring is operating properly and does 
not indicate a leak in the interstitial area.
     For monitoring or observation wells--check the covers to 
make sure they are secured.
    [cir] These wells need to be secured to avoid potential 
contamination of wells through the well cover (for example by surface 
runoff or accidental fuel delivery to the well).
     For cathodic protection--check to make sure impressed 
current cathodic protection rectifiers are on and operating; ensure 
records of three year cathodic protection testing and 60 day impressed 
current system inspections are reviewed and up to date.
    [cir] Impressed current cathodic protection systems need to be on 
and operating to protect underground metal components of the UST system 
that routinely contain regulated substances from corrosion. In 
addition, owners and operators need to retain records of the most 
recent two cathodic protection tests (required once every three years) 
and the most recent three inspections (required once every 60 days) for 
impressed current systems. These records show that cathodic protection 
systems are on and operating properly to protect UST system components 
from corrosion. Owners and operators who record rectifier readings and 
compare those readings to the normal operating parameters of the 
rectifier during the 30 day walkthrough inspections will meet the 60 
day impressed current inspection requirement in Sec.  280.31(c) without 
further activity. Failure to operate and maintain cathodic protection 
could mean that metal UST system components are corroding and could 
result in a release to the environment.
     For release detection--check to make sure the release 
detection system is on and operating with no alarm conditions or other 
unusual operating conditions present; check any devices such as tank 
gauge sticks, groundwater bailers, and hand-held vapor monitoring 
devices for operability and serviceability; and ensure records of 
release detection testing are reviewed monthly and up to date.
    [cir] Release detection equipment needs to be operable in order to 
detect releases when they occur. Owners and operators must respond to 
release detection alarms. Manual release detection equipment needs to 
be serviceable and operational so owners and operators can perform 
proper release detection. In addition, owners and operators need to 
ensure they review the most recent month's release detection 
information and retain the most recent year's worth of release 
detection records. These records are required for all methods of 
release detection, and reviews ensure UST systems are being checked for 
a release at least once every 30 days. Failure to perform these checks 
could mean release detection equipment is not operating properly and 
could result in a release to the environment.
    Owners and operators using continuous interstitial monitoring for 
double-walled spill prevention devices, sumps, or dispenser containment 
areas need to check the interstitial monitoring to make sure it is 
operating properly and does not indicate a leak in the interstitial 
area. EPA is aware of these continuous interstitial monitoring methods: 
vacuum, pressure, or liquid-filled interstitial area monitoring and 
placing sensors in the interstitial area. For vacuum, pressure, or 
liquid-filled interstitial area monitoring using electronic devices and 
sensors, owners and operators will need to check the electronic device 
to make sure it is not

[[Page 71720]]

in alarm. For interstitial areas monitored using vacuum, pressure, or 
liquid-filled interstitial area monitoring not using some type of 
electronic monitoring, owners and operators will need to make sure the 
vacuum, pressure, or liquid is maintaining its appropriate level. 
Owners and operators who do not check the interstitial monitoring of 
spill prevention devices must perform periodic spill prevention 
equipment testing described in Sec.  280.35(a)(ii) of the proposed UST 
regulation. Owners and operators who do not check the interstitial 
monitoring of sumps or dispenser containment areas and who use those 
areas for interstitial monitoring for their piping must perform the 
periodic testing of secondary containment described Sec.  
280.36(a)(iii) of the proposed UST regulation.
    EPA is proposing walkthrough inspections be conducted at least 
every 30 days. 30 days is a reasonable time frame because:
     Deliveries occur frequently--often daily or every few 
days;
     Dispenser filters are changed every few weeks or months;
     It is consistent with the 30 day release detection 
monitoring requirement; and
     Current operation and maintenance industry standards 
(Petroleum Equipment Institute Recommended Practice 900) recommend 
monthly checks as one of the periodic inspection frequencies.
    EPA is proposing owners and operators retain the most recent year's 
worth of records to demonstrate compliance with the walkthrough 
inspection requirement. Owners and operators will be required to 
document they performed each of the required activities at least once 
every 30 days. Keeping one year's worth of records is consistent with 
the current recordkeeping requirement for release detection monitoring. 
EPA is proposing owners and operators document each area checked, 
whether each area checked was acceptable or needed to have some action 
taken, and provide a description of any actions taken to correct an 
issue. This information is important to assist implementing agencies in 
determining proper operation and maintenance.

What issues related to this change does EPA request comment or 
additional data on?

     Is a 30 day inspection frequency an appropriate time frame 
for owners and operators to conduct walkthrough inspections?
     Is it reasonable for owners and operators to begin 
conducting walkthrough inspections immediately after the final UST 
regulation becomes effective?
     Is specialized training required for individuals 
completing walkthrough inspections? If yes, what should EPA establish 
as the extent of the training?
     Are there other codes of practice that should be included 
for conducting walkthrough inspections?
     Is requiring owners and operators to keep the most recent 
year's worth of records sufficient?
     Are the items EPA proposes checking appropriate? Should 
EPA add anything? Are there checks EPA is proposing that should not be 
required?
     Should EPA consider not requiring owners and operators to 
remove water from contained sumps when both of the following conditions 
exist?
    [cir] Owners and operators choose to connect an anode to the metal 
components in the sump for corrosion protection and
    [cir] The sump is not used for interstitial monitoring.
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
2. Spill Prevention Equipment Tests

What is EPA proposing?

    In Sec.  280.35, EPA is proposing owners and operators test spill 
prevention equipment (such as a catchment basin, spill bucket, or other 
spill containment device) at installation and at least once every 12 
months. This test must ensure spill prevention equipment is liquid 
tight by performing a vacuum, pressure, or liquid test according to one 
of the following:
     Requirements developed by the manufacturer (Note that 
owners and operators may use this option only if the manufacturer 
developed spill prevention equipment test requirements);
     Code of practice developed by a nationally recognized 
association or independent testing laboratory; or
     Requirements determined by the implementing agency to be 
no less protective of human health and the environment than the two 
bulleted items above.
    Exception: EPA is proposing spill prevention equipment tests not be 
required in those situations where spill prevention equipment has two 
walls and the space between the walls is monitored continuously 
(interstitial monitoring) to ensure the integrity of both the inner and 
outer wall.
    EPA is proposing owners and operators maintain the following:
     Records of spill prevention equipment tests for three 
years; or
     Documentation showing the spill prevention equipment has 
two walls and is monitored continuously for each spill prevention 
device installed at the facility. Owners and operators must maintain 
this documentation for as long as the spill prevention equipment is 
monitored continuously and for three additional years after continuous 
monitoring ends.
    EPA is proposing owners and operators meet this requirement within 
one year after the effective date of the final UST regulation for 
existing UST systems and at installation for UST systems installed 
after the effective date of the final regulation.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing this change to help ensure small releases 
occurring when the delivery transfer hose is disconnected from the fill 
pipe are contained in the spill prevention equipment. Owners and 
operators need to properly operate and maintain their spill prevention 
equipment in order to prevent releases to the environment. If a small 
release occurs at the fill port and the spill prevention equipment is 
not liquid tight, then the release can exit the spill prevention 
equipment and reach the environment. EPA is aware of various problems 
with spill prevention equipment. Examples include damage due to: 
Vehicle drive over; ground movement or freeze/thaw cycles; inadequate 
installation practices; and normal wear and tear. In addition, the 
typical life of spill prevention equipment is about three to seven 
years, but the 1988 UST regulation does not have a replacement 
requirement. Today's proposed periodic spill prevention equipment test 
will minimize problems and ensure spill prevention equipment will 
contain small releases from the delivery hose when disconnected from 
the fill pipe.
    EPA is proposing not to require owners and operators of double-
walled spill prevention equipment with continuous interstitial 
monitoring to conduct annual tests because this spill prevention 
equipment is continuously checked for tightness through interstitial 
monitoring. EPA is proposing owners and operators in the monthly 
walkthrough inspections visually check continuous interstitial 
monitoring methods that do not alert the owner and operator with an 
alarm. Additional

[[Page 71721]]

information on these inspections is available in section B-1.
    EPA is proposing to require vacuum, pressure, or liquid methods 
when testing spill prevention equipment. We believe these options 
provide owners and operators with significant flexibility for testing 
this equipment.
    EPA is proposing to specifically allow owners and operators to use 
manufacturer's requirements or a code of practice developed by a 
nationally recognized association or independent testing laboratory for 
spill prevention equipment tests. The manufacturer's requirement is an 
option only when the manufacturer has developed a testing requirement. 
In response to today's proposed regulation, EPA anticipates nationally 
recognized associations or independent testing laboratories will 
develop codes of practice for spill prevention equipment tests and 
manufacturers will develop testing requirements. In addition, EPA is 
providing implementing agencies flexibility to allow other methods they 
determine to be as protective of human health and the environment as 
the manufacturer's requirements or a code of practice. This option 
allows alternatives in the event codes of practice and manufacturer's 
testing requirements are not developed.
    EPA is proposing owners and operators conduct spill prevention 
equipment tests at least once every 12 months. We propose this 
frequency because spill prevention equipment is prone to problems that 
can occur over the course of a year and frequent tests will catch 
problems earlier. In addition, testing every 12 months is consistent 
with other testing requirements, such as annual automatic line leak 
detector testing, in the 1988 regulation.
    EPA is proposing owners and operators maintain spill prevention 
equipment test records three years for each spill containment device at 
a facility. These records will enable implementing agencies to 
determine whether owners and operators conducted annual spill 
prevention equipment testing during the three year inspections required 
by the Energy Policy Act. These records will also demonstrate that 
owners and operators tested their spill prevention equipment, ensuring 
it will contain small drips and spills that can occur when the transfer 
hose is disconnected from the fill pipe. In order for double-walled 
spill prevention equipment with continuous interstitial monitoring to 
be exempt from spill prevention equipment tests, owners and operators 
will need to maintain documentation showing spill prevention equipment 
has two walls and uses continuous interstitial monitoring. In addition, 
EPA is proposing owners and operators maintain this documentation for 
three years after continuous interstitial monitoring ends. EPA is 
proposing maintaining this documentation so owners and operators can 
demonstrate compliance with the spill prevention equipment testing 
requirement.

What issues related to this change does EPA request comment or 
additional data on?

     Is a 12 month frequency an appropriate time frame for 
spill prevention equipment tests? For example, should EPA consider more 
frequent tests in sensitive areas, such as source water protection 
areas?
     Are there other acceptable test methods in addition to 
vacuum, pressure, or liquid spill prevention equipment tests?
     Is the one year time frame proposed for owners and 
operators to begin implementing this requirement reasonable?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
3. Overfill Prevention Equipment Tests

What is EPA proposing?

    In Sec.  280.35, EPA is proposing owners and operators test proper 
operation of overfill prevention equipment (automatic shutoff devices, 
flow restrictors, and high level alarms) at installation and at least 
once every three years. The test must ensure overfill prevention 
equipment is set to activate at the appropriate level in the tank (as 
specified in Sec.  280.20(c)) and the equipment will activate when the 
regulated substance reaches that height. EPA is proposing owners and 
operators test according to one of the following:
     Requirements developed by the manufacturer (Note that 
owners and operators may use this option only if the manufacturer 
developed overfill prevention equipment test requirements);
     Code of practice developed by a nationally recognized 
association or independent testing laboratory; or
     Requirements determined by the implementing agency to be 
no less protective of human health and the environment than the two 
bulleted items above.
    EPA is proposing owners and operators maintain records of overfill 
prevention equipment tests for three years for each overfill device 
installed at a facility.
    For UST systems installed after the effective date of the final UST 
regulation, EPA is proposing owners and operators meet this requirement 
at installation. For UST systems installed on or before the final UST 
regulation is effective, EPA is proposing owners and operators meet 
this requirement within three years and according to the time frames in 
the following table:

                            Phase-In Schedule for Overfill Prevention Equipment Tests
----------------------------------------------------------------------------------------------------------------
                 Criteria                                Date by which first test must be conducted
----------------------------------------------------------------------------------------------------------------
One or more USTs at the facility were      One year after effective date of rule.
 installed on or before 12/22/1988.
No USTs at the facility were installed on  Two years after effective date of rule.
 or before 12/22/1988 and at least one
 UST at the facility was installed on or
 before 12/22/1998.
All USTs at the facility were installed    Three years after effective date of rule.
 after 12/22/1998.
----------------------------------------------------------------------------------------------------------------

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing this change to help ensure overfill prevention 
equipment is operating properly and will activate before an UST is 
overfilled. Owners and operators need to properly operate and maintain 
their overfill prevention equipment in order to prevent releases to the 
environment. If overfill prevention equipment is not working properly, 
an UST can be overfilled and release product to the environment. EPA is 
aware that USTs are being overfilled and there are problems with 
overfill prevention equipment. Examples include: Tampering; improper 
use; and normal wear and tear. The proposed periodic overfill 
prevention equipment tests will minimize problems and ensure overfill 
prevention equipment is operating properly.

[[Page 71722]]

    Overfill prevention test methods should not overfill the tank to 
determine whether overfill prevention equipment is operating properly. 
Rather, the equipment should be tested or inspected to determine 
whether it will operate or activate properly according to requirements 
set forth in the UST regulation. For example, a test or inspection for 
an automatic shutoff device in the fill pipe might include removing the 
device and checking it for the ability to operate and measuring the 
position of the device in the tank to determine whether it will 
activate at the correct height.
    For overfill prevention equipment tests, EPA is proposing owners 
and operators use manufacturer's requirements or a code of practice 
developed by a nationally recognized association or independent testing 
laboratory. The manufacturer's requirement is an option only when the 
manufacturer has developed a testing requirement. In response to this 
proposed regulation, EPA anticipates nationally recognized associations 
or independent testing laboratories will develop codes of practice for 
overfill prevention equipment tests, and manufacturers will develop 
testing requirements. In addition, EPA is providing implementing 
agencies flexibility to allow other methods they determine to be as 
protective of human health and the environment as the manufacturer's 
requirements or a code of practice. This option allows alternatives in 
the event that codes of practice and manufacturer's testing 
requirements are not developed.
    EPA is proposing owners and operators conduct overfill prevention 
equipment tests at least once every three years. We propose this 
frequency because overfill prevention equipment is less prone to 
problems than spill prevention equipment, but still needs periodic 
testing. In addition, a three year time frame is consistent with other 
testing requirements, such as cathodic protection testing and the 
proposed three year interstitial integrity testing.
    EPA is proposing to stagger implementation over a three year period 
based on the installation date of the oldest UST at the facility. The 
proposed phase-in will require overfill prevention equipment in older 
UST systems that pose a greater risk to the environment to be tested 
first. The phase-in approach will allow overfill prevention equipment 
tests to be spread out and reduce the risk of a last-minute rush of 
owners and operators obtaining overfill prevention equipment tests at 
the end of the initial three-year period.
    EPA is proposing owners and operators maintain overfill prevention 
equipment test records for three years for each overfill device at a 
facility. These records will demonstrate to implementing agencies that 
the overfill prevention equipment has been tested, is set at the 
appropriate height in the tank, and will activate when regulated 
substances reach that height. EPA is proposing owners and operators 
maintain records for three years to coincide with the three year 
inspection frequency required by the Energy Policy Act.

What issues related to this change does EPA request comment or 
additional data on?

     Is a three year frequency an appropriate time frame for 
overfill prevention equipment tests? For example, should EPA consider 
more frequent tests in sensitive areas such as source water protection 
areas? Should EPA consider less frequent testing?
     Should EPA consider owners and operators retain overfill 
prevention equipment test records for a different time frame?
     Is the three year time frame and phase-in proposed for 
owners and operators to begin implementing this requirement reasonable?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
4. Secondary Containment Tests

What is EPA proposing?

    In Sec.  280.36, EPA is proposing owners and operators test 
secondary containment areas that use interstitial monitoring at least 
once every three years. A secondary containment test (also called an 
interstitial integrity test) is performed in the space between tank 
walls, pipe walls, or in a secondary containment sump area and ensures 
the area being tested has integrity and will contain a leak. Secondary 
containment areas include tank and piping interstitial areas, as well 
as containment sumps used as part of the piping secondary containment 
and interstitial monitoring. EPA is proposing owners and operators test 
interstitial integrity areas using a vacuum, pressure, or liquid method 
according to one of the following:
     Requirements developed by the manufacturer (Note that 
owners and operators may use this option only if the manufacturer 
developed interstitial integrity test requirements);
     Code of practice developed by a nationally recognized 
association or independent testing laboratory; or
     Requirements determined by the implementing agency to be 
no less protective of human health and the environment than the two 
bulleted items above.
    Exceptions: EPA is proposing the following exceptions apply to 
interstitial integrity tests:
     Tanks--Owners and operators using continuous interstitial 
monitoring on their tanks will not be required to perform periodic 
interstitial integrity tests.
     Piping--Owners and operators using vacuum monitoring, 
pressure monitoring, or liquid-filled interstitial space monitoring on 
their underground piping will not be required to perform periodic 
interstitial integrity tests.
     Containment sumps--Owners and operators using containment 
sumps which have two walls and continuously monitor the interstitial 
space between the walls for releases will not be required to perform 
interstitial integrity tests.
    EPA is proposing owners and operators maintain the following:
     Records of interstitial integrity tests for three years; 
or
     Documentation demonstrating that the tanks, piping, or 
containment sumps are not required to have a periodic interstitial 
integrity test according to the exceptions above. Owners and operators 
must maintain this documentation for as long as the tank, piping, or 
containment sump uses one of the continuous methods listed in the 
exceptions and for three additional years after continuous monitoring 
ends.

For UST systems installed after the effective date of the final UST 
regulation, EPA is proposing owners and operators meet this requirement 
at installation. For UST systems installed on or before the final UST 
regulation is effective, EPA is proposing owners and operators meet 
this requirement within three years and according to the time frames in 
the following table:

[[Page 71723]]

                               Phase-In Schedule for Interstitial Integrity Tests
----------------------------------------------------------------------------------------------------------------
                 Criteria                                Date by which first test must be conducted
----------------------------------------------------------------------------------------------------------------
One or more USTs at the facility were       One year after effective date of rule.
 installed on or before 12/22/1988.
No USTs at the facility were installed on   Two years after effective date of rule.
 or before 12/22/1988 and at least one UST
 at the facility was installed on or
 before 12/22/1998.
All USTs at the facility were installed     Three years after effective date of rule.
 after 12/22/1998.
----------------------------------------------------------------------------------------------------------------

This proposed requirement only applies to UST systems using 
interstitial monitoring. It does not apply to UST systems without 
secondary containment or those with secondary containment but not using 
interstitial monitoring for release detection.

Why is EPA proposing this change? What background information is 
available about this change?

    The Energy Policy Act requires states that receive federal Subtitle 
I money implement additional measures to protect groundwater, either 
with secondary containment for new and replaced tanks and piping or 
financial responsibility for manufacturers and installers. 54 of 56 
states have implemented the secondary containment option. To ensure 
secondary containment is working properly, the integrity of the 
interstitial space needs to be tested. Therefore, EPA is proposing 
periodic interstitial integrity tests of the interstitial space in 
secondarily-contained UST systems which use interstitial monitoring for 
release detection. These systems need to contain a leak until 
interstitial monitoring detects the regulated substance. Currently, EPA 
has no requirement for ensuring the integrity of secondary containment 
areas.
    Since most states implemented the secondary containment 
requirements in the Energy Policy Act for most new and replaced tanks 
and piping, new and replaced UST systems will be secondarily contained 
with interstitial monitoring. This requirement signals a move from non-
secondarily contained UST systems using methods of release detection 
that detect a release only after regulated substances have reached the 
environment to secondary containment with interstitial monitoring that 
identifies a problem before regulated substances reach the environment. 
Interstitial integrity tests will confirm for owners and operators that 
secondary containment will contain a leak until it is detected and the 
problem is repaired.
    Some interstitial monitoring methods for tanks, piping, and 
containment sumps already continuously ensure the interstitial area's 
integrity. When an owner or operator uses one of these methods, EPA 
will not require periodic interstitial integrity tests.
     Tanks--According to EPA's source and cause of release 
information, tanks are not the leading source of releases 
24 25 In addition, tanks are nearly always constructed in a 
factory under controlled conditions, making it less likely problems 
will occur in interstitial areas after installation. For these reasons, 
EPA proposes not to require owners and operators to conduct periodic 
interstitial integrity tests of tanks using continuous interstitial 
monitoring. Methods of continuous interstitial monitoring for tanks 
include liquid filled, vacuum, pressure, and sensors in the 
interstitial space.
---------------------------------------------------------------------------

    \24\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \25\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
---------------------------------------------------------------------------

     Piping--EPA's source and cause of release information 
shows that a significant number of releases occur from 
piping.26 27 In addition, piping and containment sumps are 
assembled in the field during the installation process, potentially 
creating increased opportunities for releases. Therefore, unless owners 
and operators use continuous liquid-filled, vacuum, or pressure 
interstitial monitoring for piping release detection, EPA is proposing 
to require periodic interstitial integrity testing for piping. For 
example, owners and operators who choose to use sensors in containment 
sumps for piping interstitial monitoring must also perform three year 
interstitial integrity tests of the piping interstitial space.
---------------------------------------------------------------------------

    \26\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \27\ Evaluation Of Releases From New And Upgraded Underground 
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
---------------------------------------------------------------------------

     Containment sumps--Similar to piping, EPA's source and 
cause of release information shows that a significant number of 
releases occur in containment sump areas. EPA is also aware of issues 
with the tightness of containment sumps. Based on this information, EPA 
is proposing owners and operators conduct periodic interstitial 
integrity tests of containment sumps used for piping interstitial 
monitoring, unless the containment sump has two walls and the 
interstitial space between the walls in the sump is continuously 
monitored. For example, if an owner or operator has a double-walled 
containment sump and uses a sensor, vacuum, pressure, or liquid-filled 
interstitial area to continuously monitor the space between the two 
walls, then periodic interstitial integrity tests of that sump are not 
required under this proposal. Owners and operators of double-walled 
sumps without continuous interstitial monitoring must perform three 
year interstitial integrity tests.

Continuous interstitial monitoring means the secondary containment 
space is monitored all the time by a method or device and owners and 
operators check the continuous monitoring method or device for a leak 
at least once every 30 days. In addition, owners and operators must 
immediately respond to any alarms they encounter. Methods of continuous 
interstitial monitoring include vacuum, pressure, and liquid-filled 
interstitial areas along with sensors and probes located in the 
interstitial area.
    EPA is proposing owners and operators conduct interstitial 
integrity tests for tanks, piping, and sumps at least once every three 
years. EPA is proposing this frequency because we believe secondarily 
contained UST systems are much less prone to releases than single-
walled UST systems. However, since owners and operators are relying on 
the interstitial space to detect problems, the interstitial areas still 
need periodic tests to ensure proper operation and maintenance. A three 
year time frame is consistent with other testing requirements, such as 
cathodic protection testing and the proposed overfill prevention 
equipment testing.
    EPA is proposing to stagger implementation over a three year period 
based on the installation date of the oldest UST at the facility. The 
proposed phase-in will require older UST systems that may pose a 
greater risk to the environment to be tested first. The phase-in 
approach will allow interstitial tests to be spread out and reduce the 
risk of a last-minute rush of owners and operators obtaining tests at 
the end of the initial three-year period.

[[Page 71724]]

    EPA is proposing owners and operators maintain interstitial 
integrity test records for three years for each regulated tank, pipe, 
and containment sump at a facility or maintain documentation 
demonstrating periodic interstitial integrity tests are not required. 
Documentation supporting that periodic interstitial integrity tests are 
not required could include: the tank or piping uses vacuum, pressure, 
or liquid-filled interstitial monitoring; the tank uses continuous 
interstitial sensors for interstitial monitoring; or the containment 
sump has two walls and the space between the containment sump walls is 
continuously monitored. In addition, EPA is proposing owners and 
operators maintain this documentation for three years after continuous 
interstitial monitoring ends. EPA is proposing owners and operators 
maintain this documentation so they can demonstrate to implementing 
agencies compliance with the interstitial integrity test requirement. 
This documentation coincides with the three year inspection 
requirements in the Energy Policy Act.

What issues related to this change does EPA request comment or 
additional data on?

     Is a three year frequency an appropriate time frame for 
interstitial integrity tests? For example, should EPA consider more 
frequent tests in sensitive areas such as source water protection 
areas?
     Should EPA consider owners and operators retain records of 
interstitial integrity tests for a different time frame?
     Should EPA consider interstitial integrity tests for tanks 
using continuous interstitial sensors? Should EPA consider limiting 
this exclusion to discriminating sensors?
     Is there a need for a phased-in schedule to implement this 
requirement? Is the three year time frame and phase-in proposed for 
owners and operators to begin implementing this requirement reasonable?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
5. Operation and Maintenance Requirements for Release Detection 
Equipment

What is EPA proposing?

    In Sec.  280.40, EPA is proposing UST owners and operators perform 
annual operation and maintenance tests on electronic and mechanical 
components of their release detection equipment to ensure the equipment 
is operating properly. Owners and operators will be required to check 
the following equipment:

 ATG and other controllers
    [cir] Test alarm;
    [cir] Verify system configuration; and
    [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, bends, and breaks; and
    [cir] Test alarm operability and communication with controller.
 Line leak detector
    [cir] Simulate leak which determines capability to detect a leak; 
and
    [cir] Inspect leak sensing o-ring.
 Vacuum pumps and pressure gauges
    [cir] Ensure communication with sensors and controller.

EPA is proposing owners and operators meet this requirement according 
to one of the following: manufacturer's instructions; a code of 
practice developed by a nationally recognized association or 
independent testing laboratory; or requirements developed by the 
implementing agency.
    EPA is proposing owners and operators maintain records of the 
annual operation tests for three years. At a minimum, records must: 
list each component tested; indicate whether each component met the 
criteria listed above or needed to have action taken; and describe any 
action taken to correct an issue.
    EPA is proposing owners and operators begin meeting this 
requirement no later than one year after the effective date of the 
final UST regulation.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is concerned about the performance of release detection 
equipment. Inspectors routinely find release detection equipment 
installed on UST systems, but that equipment is not properly operated 
and maintained. In addition, information from an analysis in Florida 
indicates, ``Leak detection successfully detected 26 percent of all 
releases. Conversely, leak detection was specifically identified as 
failing to detect 23 percent of releases.'' The analysis also says the 
exact reason for the leak detection failure could not be determined. 
However, the analysis provided these possible reasons, ``* * * faulty 
equipment; improper installation; operation or maintenance; or 
insufficient performance standards.'' \28\ To increase the 
effectiveness of release detection, EPA is targeting operation and 
maintenance.
---------------------------------------------------------------------------

    \28\ Petroleum Releases At Underground Storage Tank Facilities 
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
---------------------------------------------------------------------------

    The 1988 UST regulation in Sec.  280.40(a)(2) requires that release 
detection ``Is installed, calibrated, operated, and maintained in 
accordance with the manufacturer's instructions, including routine 
maintenance and service checks for operability or running condition;''. 
Most owners and operators installed the required release detection 
equipment, but some owners and operators are not properly operating and 
maintaining their equipment. To achieve optimal performance from 
equipment and meet release detection requirements, it is important for 
UST system owners and operators to both install the equipment and 
properly operate and maintain it. In the 1988 UST regulation, EPA did 
not provide specifics on minimum requirements to ensure adequate 
operation and maintenance of release detection equipment. As a result, 
operation and maintenance requirements vary greatly, even between 
similar types of equipment.
    Some manufacturers' requirements do not adequately address 
operation and maintenance. For example, some manufacturers only 
recommend operation and maintenance checks; but EPA is taking the 
position that checks should be mandatory instead of optional. In 
addition, similar release detection components should be tested in a 
similar manner, which will increase the likelihood all release 
detection equipment will function at optimal levels for as long as 
possible. California's in-field analysis of sensors used for release 
detection and anecdotal feedback supports EPA's belief. \29\
---------------------------------------------------------------------------

    \29\ 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.
---------------------------------------------------------------------------

    EPA is proposing this change to improve and standardize operation 
and maintenance for all release detection equipment. This proposed 
change will provide owners and operators with an understanding of 
equipment tests necessary to ensure equipment is properly operated and 
maintained. EPA is proposing a set of minimum operation and maintenance 
criteria owners and operators must follow for all electronic- and 
mechanical-based release detection equipment. EPA is also addressing 
equipment that is neither electronically nor mechanically based (for 
example,

[[Page 71725]]

bailers and measuring sticks used for activities such as statistical 
inventory reconciliation [SIR]) separately under the walkthrough 
inspections section (see section B-1).
    EPA based these proposed operation and maintenance minimum 
requirements for release detection on common requirements and 
recommendations by various equipment manufacturers of similar 
equipment. EPA used the National Work Group on Leak Detection 
Evaluation's (NWGLDE) list of leak detection equipment to identify 
commonly used equipment.\30\ In addition, EPA's publication, Operating 
And Maintaining Underground Storage Tanks Systems: Practical Help And 
Checklists and Petroleum Equipment Institute's Recommended Practices 
for the Inspection and Maintenance of UST Systems (RP 900) also helped 
establish proper operation and maintenance activities.
---------------------------------------------------------------------------

    \30\ National Work Group On Leak Detection Evaluation's (NWGLDE) 
List Of Leak Detection Evaluations For Storage Tank Systems: http://www.nwglde.org/.
---------------------------------------------------------------------------

    Regarding our proposal to use a code of practice developed by a 
nationally recognized association or independent testing laboratory, 
EPA knows of one code of practice currently being developed that may 
address operability testing for release detection equipment. After that 
code of practice is final, EPA will review it and decide whether to 
include it in the final UST regulation.
    EPA is proposing owners and operators maintain records of annual 
operation tests for three years. Results of tests must include: a list 
of each component tested; whether it tested acceptable or needed 
action; and a description of any action taken to correct an issue. 
Three years worth of records are consistent with the three year 
inspection cycle, and content of the records will allow owners and 
operators to demonstrate compliance with this operation and maintenance 
requirement.
    Finally, EPA is allowing owners and operators up to one year from 
the effective date of the final UST regulation to meet this 
requirement. One year is consistent with the annual test frequency 
requirement already in place for automatic line leak detectors, and 
many third-party service providers nationwide already perform the 
testing.

What issues related to this change does EPA request comment or 
additional data on?

     Are the proposed minimum operation and maintenance 
requirements sufficient to cover release detection equipment on 
regulated UST systems?
     Are there additional performance tests EPA should 
consider?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.

C. Addressing Deferrals

    Note about the overlap of UST regulations and Spill Prevention 
Control and Countermeasures (SPCC) regulations: At the time of the 1988 
UST regulation, facilities with an aggregate completely buried storage 
capacity greater than 42,000 gallons and located near navigable waters 
of the U.S. or adjoining shorelines were subject to both UST rules and 
SPCC rules. Since then, SPCC rules have been amended and the rule 
exempts completely buried storage tanks, as well as connected 
underground piping, underground ancillary equipment, and containment 
systems, when subject to the technical requirements of 40 CFR part 280. 
In today's proposal, EPA proposes to continue to defer the aboveground 
components associated with airport hydrant systems and USTs with field-
constructed tanks. Only those deferred aboveground components will be 
subject to SPCC requirements. EPA is proposing to regulate the 
underground components associated with airport hydrant systems and USTs 
with field-constructed tanks. In addition, EPA is proposing to regulate 
wastewater treatment tank systems and UST systems that store fuel 
solely for use by emergency power generators deferred under the 1988 
regulation. Once the proposal becomes final, these UST systems will no 
longer be subject to SPCC requirements.
1. Emergency Power Generator UST Systems

What is EPA proposing?

    EPA is proposing to eliminate the current deferral in Sec.  
280.10(d) for UST systems storing fuel solely for use by emergency 
power generators. This means emergency power generator USTs will no 
longer be deferred from release detection requirements in 40 CFR part 
280, subpart D and will be subject to all UST requirements.
    In addition, EPA is proposing that, no later than 30 days after the 
effective date of the final UST regulation, owners of UST systems 
storing fuel solely for use by emergency power generators notify 
appropriate implementing agencies that their systems exist.
    EPA is proposing owners and operators of UST systems storing fuel 
solely for use by emergency power generators begin meeting these 
requirements as follows:
     For systems installed after the effective date of the 
final UST regulation, at the time of installation.
     For systems installed on or before the effective date of 
the final UST regulation, within one year of the effective date of the 
final UST regulation.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing to regulate UST systems storing fuel solely for 
use by emergency power generators because our previous rationale for 
deferring release detection no longer applies. To allow time for 
developing workable release detection requirements, EPA in the 1988 UST 
regulation deferred release detection requirements for UST systems 
storing fuel solely for use by emergency power generators. The 1988 UST 
regulation preamble indicated that monthly monitoring requirements were 
unworkable because these tanks often were located at unmanned stations 
in remote areas and visited infrequently.
    EPA always intended for these systems to meet release detection 
requirements when appropriate release detection methods became 
available. Since the 1988 UST regulation, release detection 
technologies have matured greatly. In addition, technology is now 
available to perform release detection at remote sites. Emergency 
generator tanks and piping can now be monitored for releases by the 
majority of methods listed in Sec.  280.43. EPA estimates about 30 
percent of active UST systems storing fuel solely for use by emergency 
power generators already have release detection.
    Effective remote monitoring methods for release detection are now 
available and used to monitor unmanned UST systems storing fuel solely 
for use by emergency power generators. Numerous contractors perform 
remote monitoring for releases at these unmanned sites. Remote monitors 
transmit visual or audible alarms to a receiving console at a manned 
location when there is a suspected or confirmed release. This provides 
owners and operators with real-time release detection data for 
immediate response to suspected or confirmed releases at sites with 
unmanned UST systems storing fuel solely for use by emergency power 
generators.
    Emergency power generator UST systems are located throughout the

[[Page 71726]]

country. EPA's review of several state databases revealed these systems 
are located at hospitals, universities, communication utilities, 
military installations, and other locations relying on backup power 
sources. EPA estimates UST systems storing fuel solely for use by 
emergency power generators now represent approximately 3 percent of the 
active tank population.\31\
---------------------------------------------------------------------------

    \31\ Industrial Economics, Inc., ``Detailed Assessment of UST 
Universe by Tank Use and Industry Sector,'' Work Assignment 1-15, 
Task 6, January 23, 2009.
---------------------------------------------------------------------------

    Additionally, 21 states currently require release detection for 
emergency power generator UST systems. Automatic tank gauging and 
secondary containment with interstitial monitoring are the most common 
release detection methods used for tanks associated with these systems. 
Line tightness testing, line leak detectors, or secondary containment 
with interstitial monitoring are the most common release detection 
methods used for piping. Note that safe suction piping does not require 
release detection. With technology now available to detect releases 
from emergency power generator UST systems and because these systems 
pose the same risk to human health and the environment as any other UST 
system, EPA is proposing to remove the deferral from release detection.
    EPA is proposing owners and operators of emergency power generator 
UST systems installed on or before the effective date of the final UST 
regulation begin performing release detection within one year of the 
effective date of the final regulation. EPA is taking the position that 
one year is reasonable because these USTs are fully regulated except 
for release detection, and some are already performing release 
detection. After the effective date of the final regulation, all 
emergency power generator UST systems must include release detection 
when installed.
Notification
    To make implementing agencies aware that emergency power generator 
UST systems exist, EPA is proposing owners of these systems submit a 
one-time notification to the implementing agency. Owners must notify 
within 30 days of the effective date of the final regulation. This will 
allow implementing agencies to include emergency power generator UST 
systems in their inventories.

What issues related to this change does EPA request comment or 
additional data on?

     Is EPA's estimate of 3 percent for UST systems storing 
fuel solely for use by emergency power generators accurate?
     Are there technical concerns EPA should address in 
requiring release detection for emergency power generator UST systems?
     Is EPA's estimate of 30 percent installed release 
detection on UST systems storing fuel solely for use by emergency power 
generators accurate?
     How many UST facilities have 10 or more emergency power 
generator UST systems? Who owns these facilities?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
2. Airport Hydrant Fuel Distribution Systems

What is EPA proposing?

    EPA is proposing to regulate currently deferred airport hydrant 
fuel distribution systems (also referred to as airport hydrant 
systems). This means airport hydrant systems will no longer be deferred 
from the requirements of 40 CFR part 280, subparts B (UST Systems: 
Design, Construction, Installation and Notification); C (General 
Operating Requirements); D (Release Detection); E (Release Reporting, 
Investigation, and Confirmation); G (Out-of-Service UST Systems and 
Closure); and H (Financial Responsibility).
    Airport hydrant systems installed on or before the effective date 
of the final UST regulation must begin meeting the requirements of 
subparts B (except Sec.  280.22) and C within three years of the 
effective date of the final UST regulation, subpart D according to the 
schedule in the table below, and Sec.  280.22 of subpart B along with 
subparts E, G, and H on the effective date of the final UST regulation. 
Airport hydrant systems installed after the effective date of the final 
UST regulation must meet these requirements at the time of 
installation. Airport hydrant systems with aboveground storage tanks 
(ASTs) directly connected to the underground hydrant piping are not 
regulated UST systems under 40 CFR part 280, unless 10 percent or more 
of the total capacity of the system, including underground piping, is 
beneath the surface of the ground.

                   Schedule for Phase In of Subpart D
------------------------------------------------------------------------
                                    Time frame
 Component and type of release  (after [effective      Description of
        detection used            date of rule])        requirement
------------------------------------------------------------------------
Piping using periodic           Within three       Conduct one piping
 pressurized bulk line           years.             tightness test
 tightness testing.             Between years       according to the
                                 three and six.     bulk line tightness
                                                    testing requirement
                                                    using the maximum
                                                    detectable leak
                                                    rates for semiannual
                                                    testing. For bulk
                                                    piping segments not
                                                    capable of meeting
                                                    the 3.0 gallon per
                                                    hour leak rate,
                                                    owners and operators
                                                    may use a leak rate
                                                    of up to 6.0 gallons
                                                    per hour.
                                Between years six  Conduct one piping
                                 and seven.         tightness test
                                                    according to the
                                                    bulk line tightness
                                                    testing requirement
                                                    using the maximum
                                                    detectable leak
                                                    rates for semiannual
                                                    testing.
                               -----------------------------------------
                                After year seven.  Begin conducting
                                                    piping tightness
                                                    testing according to
                                                    the bulk line
                                                    tightness testing
                                                    requirement.
------------------------------------------------------------------------
All other piping and tank       Within three       Perform release
 release detection methods.      years.             detection according
                                                    to this subpart.
------------------------------------------------------------------------

EPA is proposing to define an airport hydrant fuel distribution system 
as an UST system that is a combination of one or more tanks directly 
connected to underground hydrant piping used to fuel aircraft. These 
systems do not have a dispenser at the end of the piping run, but 
rather a hydrant (fill stand). If an AST is feeding an intermediary 
tank or

[[Page 71727]]

tanks, this proposed definition does not include the AST, but does 
include all underground piping entering and leaving intermediary tanks 
and the intermediary tank(s). Intermediary tanks are those tanks 
directly connected to the hydrant piping.
Release Detection--Tanks
    EPA is proposing airport hydrant system tanks installed prior to 
the effective date of the final UST regulation meet these requirements:
     The following tanks must be monitored using release 
detection methods specified in Sec.  280.43.
    [cir] Shop fabricated tanks.
    [cir] Field-constructed tanks with a capacity less than or equal to 
50,000 gallons.
     Field-constructed tanks with capacity greater than 50,000 
gallons must either be monitored using release detection methods 
specified in Sec.  280.43 or use one of the alternatives for tanks 
listed in section C-3--UST Systems With Field-Constructed Tanks.

EPA is proposing new or replaced airport hydrant system tanks installed 
after the effective date of the final UST regulation be secondarily 
contained and perform interstitial monitoring according to Sec.  
280.43(g).
Release Detection--Piping
    EPA is proposing airport hydrant system piping meet these release 
detection requirements:
     Piping must be monitored using release detection methods 
specified in Sec.  280.44; or
     Use one of these alternatives:
    Perform a semiannual or annual bulk line tightness test at or above 
operating pressure in accordance with the table below. Bulk piping 
segments >=100,000 gallons not capable of meeting the maximum 3.0 
gallon per hour leak rate for the semiannual test may be tested at a 
leak rate up to 6.0 gallons per hour according to the schedule in Sec.  
280.40(c):

                              Maximum Detectable Leak Rate per Test Section Volume
----------------------------------------------------------------------------------------------------------------
                                                                       Semiannual test
                                                                      maximum detectable    Annual test maximum
                   Test section volume (gallons)                      leak rate (gallons    detectable leak rate
                                                                          per hour)          (gallons per hour)
----------------------------------------------------------------------------------------------------------------
=50,000 to =75,000 to =100,000.........................................................                   3.0                    1.5
----------------------------------------------------------------------------------------------------------------

    The bulk line tightness test must be capable of detecting the 
maximum detectible leak rate listed in the table above with a 
probability of detection of 0.95 and a probability of false alarm of 
0.05.
    [cir] Perform continuous interstitial monitoring designed to detect 
a release from any portion of the underground piping that routinely 
contains product according to Sec.  280.43(g).
    [cir] Use an automatic line leak detector that alerts the presence 
of a leak by restricting or shutting off flow of regulated substances 
through piping or triggering an audible or visual alarm. This method 
may be used only if it can detect a leak of three gallons per hour at 
10 pounds per square inch line pressure within one hour or equivalent. 
When using this method, also:
    -At least every three months, perform interstitial monitoring, 
designed to detect a release from any portion of the underground piping 
that routinely contains product, according to Sec.  280.43(g); and
    -Conduct an annual leak detector operation test according to Sec.  
280.40(a)(3).
    [cir] The implementing agency may approve another method if the 
owner and operator can demonstrate the method can detect a release as 
effectively as any of the other three methods. In comparing methods, 
the implementing agency shall consider the size of release the method 
can detect and frequency and reliability of detection. Owners and 
operators must comply with conditions imposed by the implementing 
agency.

All recordkeeping requirements in Sec.  280.45 apply to these proposed 
release detection methods.
Release Prevention
    EPA is proposing airport hydrant systems meet corrosion protection, 
spill, and overfill requirements. For corrosion protection, EPA is 
proposing airport hydrant systems meet one of these:
     The new tank and piping standards described in Sec.  
280.20; or
     Airport hydrant systems installed on or before the 
effective date of the final UST regulation can be constructed of metal 
and cathodically protected according to a code of practice developed by 
a nationally recognized association or independent testing laboratory 
and meet the following:
    [cir] Field installed cathodic protection systems must be: designed 
by a corrosion expert; designed to allow for the determination of 
current operating status for impressed current systems; and operated 
and maintained in accordance with Sec.  280.31 or guidelines 
established by the implementing agency; and
    [cir] Tanks greater than 10 years old without cathodic protection 
must be assessed to ensure they are structurally sound and free of 
corrosion holes prior to adding cathodic protection. The assessment 
must be by internal inspection or another method the implementing 
agency determines adequately assesses the tank for structural soundness 
and corrosion holes.

EPA is proposing airport hydrant systems installed on or before the 
effective date of the final UST regulation that are not upgraded 
according to Sec.  280.21 within three years of the effective date of 
the final UST regulation be permanently closed according to Sec.  
280.70. EPA is proposing internal lining not be allowed for meeting the 
corrosion protection upgrade requirement.
    EPA is proposing to exclude new and replaced piping in airport 
hydrant systems from secondary containment requirements in Sec.  
280.20(b).
Notification
    EPA is proposing that, no later than 30 days after the effective 
date of the final UST regulation, owners of regulated airport hydrant 
systems installed prior to the effective date of final UST regulation 
notify appropriate implementing agencies that their systems exist.
Financial Responsibility
    EPA is proposing airport hydrant systems no longer be deferred. 
This means airport hydrant systems that have not been permanently 
closed will be

[[Page 71728]]

subject to financial responsibility requirements in subpart H.
Deferred Components
    Aboveground components of airport hydrant systems are currently 
regulated by SPCC because they are not fully regulated under the UST 
regulations.\32\ EPA is proposing to continue deferring aboveground 
tanks associated with airport hydrant systems that meet the UST system 
definition from the requirements of subparts B, C, D, E, and G.
---------------------------------------------------------------------------

    \32\ Spill Prevention, Control, And Countermeasure Rule. http://www.epa.gov/oem/content/spcc/index.htm.
---------------------------------------------------------------------------

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing to regulate airport hydrant systems because a 
release from one of these systems may pose a significant threat to 
human health and the environment. In addition, technology is now 
available for release prevention and adequate release detection 
monitoring. In some cases airport hydrant system piping stores millions 
of gallons of fuel; airport hydrant systems handle large volumes of 
regulated substances on a daily basis. Leaks from underground piping 
and other appurtenances can contaminate subsurface soil beneath the 
airport apron and runways, groundwater, and nearby surface water. Even 
though there is a small universe of these systems, mainly owned by the 
Department of Defense (DoD), evidence shows a substantial release can 
have a major impact on the environment.
    For example, at Pease Air Force Base, jet fuel was delivered to the 
runway apron via an underground fueling system. Throughout the life of 
the system, releases contaminated soils and groundwater, forming plumes 
of regulated substances in the groundwater.\33\ A site release study 
identified 60 to 70 release points with varying degrees of severity 
along the refueling system line. Free product was found under the apron 
when the systems were closed.\34\ There are no available historical 
records showing the sources of release or the volumes of regulated 
substances released. However, the presence of soil and groundwater 
contamination poses a significant threat to public health and the 
environment.
---------------------------------------------------------------------------

    \33\ New Hampshire Department of Environmental Services, Air 
Resources Division. 2009. Permit Application Review Summary, Former 
Pease AFB Remediation Project, 09-0113. 10 March 2010, see: http://www2.des.state.nh.us/OneStopPub/Air/330159094909-0113TypeSummary.pdf.
    \34\ Hilton, Scott. Site Summaries Pease Air Force Base 
Newington/Portsmouth. 2008. NH Department of Environmental Services. 
10 March 2010 see: http://des.nh.gov/organization/divisions/waste/hwrb/fss/superfund/summaries/pease.htm.
---------------------------------------------------------------------------

    In the 1988 UST regulation, EPA deferred airport hydrant systems 
because release detection and prevention technologies were not readily 
available for these unique systems. Given current availability of those 
technologies, requiring release prevention equipment and regular 
release detection tests are keys to preventing and quickly identifying 
releases before they contaminate the surrounding environment. 
Additionally, 16 state UST programs which include approximately 40 
percent of the existing universe of these UST systems, no longer defer 
airport hydrant systems and now regulate them.
    EPA is proposing to define airport hydrant system in order to 
clarify which components of these systems will be regulated. There is 
currently some uncertainty about what an airport hydrant system is 
because of the lack of a federal definition and inconsistencies between 
different state definitions. Today's proposed definition of airport 
hydrant system clarifies which components will be regulated. Examples 
of tank and piping configurations for airport hydrant systems can be 
found in the docket for this proposed rulemaking.\35\
---------------------------------------------------------------------------

    \35\ Example Tank and Piping Configurations for Airport Hydrant 
Systems developed by EPA/OUST.
---------------------------------------------------------------------------

    EPA is proposing airport hydrant systems installed on or before the 
effective date of the final UST regulation begin meeting the 
requirements of subparts B (except Sec.  280.22) and C within three 
years of the effective date of the final UST regulation, subpart D 
according to the phase in schedule in the table above, and Sec.  280.22 
of subpart B along with subparts E, G, and H on the effective date of 
the final UST regulation. Airport hydrant systems installed after the 
effective date of the final UST regulation must meet all requirements 
at installation. Three years allows owners and operators enough time to 
implement the requirements of subparts B (except Sec.  280.22) and C. 
EPA is providing a phase in period for bulk line tightness testing in 
subpart D to allow owners and operators ample time to upgrade their 
piping systems and meet the leak rate criteria. EPA is proposing to 
allow owners and operators for the first six years (two test periods) 
to meet a higher threshold of up to 6.0 gallons per hour for those 
piping segments that cannot meet the more stringent maximum 3.0 gallons 
per hour threshold due to technical reasons. These technical reasons 
include exceeding capabilities of currently available pressure-based 
methods to achieve the required leak rate. Currently available methods 
are capable of testing larger volume test sections to a leak rate of 
6.0 gallons. The higher threshold of 6.0 gallons per hour provides for 
use of existing test methods during the first six year period. Six 
years will provide owners and operators time to upgrade their piping 
systems to meet the up to 3.0 gallon per hour threshold for semiannual 
testing. Between years six and seven of the phase in, EPA proposes to 
allow owners and operators to conduct one additional bulk tightness 
test that meets the semiannual testing threshold. Beginning in year 
seven, owners and operators must begin meeting the semiannual and 
annual bulk line tightness testing requirements described earlier in 
this section. For all other tank and piping release detection options, 
EPA is proposing a three year phase in because these methods will not 
require significant construction or upgrades for implementation. 
Finally, owners and operators can implement the requirements of Sec.  
280.22 of subpart B along with subparts E, G, and H beginning on the 
effective date of the final UST regulation because upgrades or special 
equipment are not needed to meet the requirements in these subparts.
Release Detection
    EPA is proposing release detection for airport hydrant systems 
because, unlike in the 1980s, release detection technologies are now 
available. Airport hydrant systems typically consist of a series of 
large diameter shop-fabricated tanks; although some airport hydrant 
systems use field-constructed tanks. EPA is proposing release detection 
requirements for shop-fabricated tanks and field-constructed tanks in 
airport hydrant systems. See section C-3 for proposed release detection 
requirements for UST systems with field-constructed tanks.
    EPA discussed airport hydrant systems in the 1988 UST regulation 
preamble. These systems were very large, contained great volumes of 
fuel (capacities in the millions of gallons), and consisted of miles of 
piping that was typically eight to 24 inches in diameter. Airport 
hydrant systems typically had cathodic protection and were monitored 
for releases periodically. Inventory control was often used, but the 
sensitivity of this technique was limited due to the large volume 
airport hydrant systems typically handled. No single leak test appeared 
to be an industry standard.
    Between proposing and finalizing the 1988 UST regulation, EPA 
became

[[Page 71729]]

aware of several airport hydrant system leaks that harmed the 
environment. However, limited information kept EPA from realizing the 
extent of airport hydrant system problems. At the time, EPA believed 
release detection was not feasible for airport hydrant systems. To 
allow more time to gather information, EPA deferred airport hydrant 
systems in the 1988 regulation from release detection requirements in 
subpart D as well as subparts B, C, E, G, and H requirements.
    Over the last 20 years, the petroleum services industry developed 
release detection monitoring technologies for airport hydrant systems. 
NWGLDE's list in Large Diameter Line Leak Detection Methods (6 Inches 
Diameter Or Above) \36\ identifies methods capable of detecting 
releases from airport hydrant systems.
---------------------------------------------------------------------------

    \36\ National Work Group On Leak Detection Evaluation's (NWGLDE) 
List Of Leak Detection Evaluations For Storage Tank Systems: http://www.nwglde.org/.
---------------------------------------------------------------------------

    EPA contacted several vendors to determine strengths and 
limitations of release detection methods for airport hydrant systems. 
EPA also talked with DoD's Defense Logistics Agency (DLA) Energy \37\ 
about their challenges in addressing release detection requirements in 
states, such as California, which do not defer airport hydrant systems 
from release detection. DLA Energy also monitors airport hydrant 
systems in other states, which provides them with significant 
information about airport hydrant system release detection.
---------------------------------------------------------------------------

    \37\ Defense Logistics Agency Energy was formerly known as 
Defense Energy Support Center (DESC).
---------------------------------------------------------------------------

    EPA acknowledges airport hydrant systems vary greatly and most of 
these systems cannot meet underground piping release detection 
requirements in the 1988 UST regulation because of issues such as time 
to conduct the test and leak rate thresholds. Nonetheless, other 
release detection methods are currently available to monitor airport 
hydrant systems. EPA is not proposing release detection methods monitor 
at the same leak rate or frequency as pressurized piping systems at 
retail service stations. Standard release detection systems can 
successfully test and detect releases on USTs and pressurized piping at 
retail service stations, but cannot achieve the same accuracy within a 
reasonable time frame on underground piping in airport hydrant systems. 
The large diameters and varying pipe lengths in airport hydrant systems 
introduce variables that prohibit accurate monitoring at leak rates 
within a reasonable time frame required in the 1988 UST regulation.
    Compared to typical retail service stations, airport hydrant 
systems have large product volume throughputs. The 1988 UST regulation 
release detection test methods are limited by volume. To produce 
accurate test results, underground hydrant system piping needs to be 
isolated in appropriately sized segments. Some airport hydrant systems 
have numerous isolation points with available connections for release 
detection equipment; others have up to one-half mile between 
underground piping segments available for accurate testing. The greater 
the volume of a segment, the more time it takes to obtain a valid 
result at a given leak rate.
    Product temperature fluctuations present challenges for release 
detection testing of airport hydrant system piping. As temperatures 
fluctuate, product expands or contracts, increasing or decreasing 
product volume and pressure. Fluctuating line pressure during a release 
detection test can mask an existing release or falsely indicate one 
occurred. To lessen this, an out of service period when testing large 
diameter airport hydrant piping could range from one to several days 
after the last product transfer in order to meet maximum leak detection 
rates in the 1988 UST regulation. Removing airport hydrant systems from 
service for these extended periods will greatly impede their purpose. 
In contrast, out of service periods on underground piping at retail 
service stations can last up to several hours after the last product 
transfer prior to pressure testing.
    Although technology is available, it would be cost prohibitive and 
require significant facility down time for owners and operators to 
monitor airport hydrant systems for releases at the rates and 
frequencies required in the 1988 UST regulation.\38\ As a result, EPA 
is proposing several options for owners and operators to meet the 
release detection requirement. These options provide flexibility for a 
wide variety of airport hydrant systems. In those instances where 
airport hydrant systems can meet the release detection methods in Sec.  
280.43 and Sec.  280.44, owners and operators may use those methods. 
EPA is also proposing the following four alternatives to meet the 
airport hydrant system release detection requirement for piping.
---------------------------------------------------------------------------

    \38\ See section F of this preamble and Regulatory Impact 
Analysis (RIA) for the proposed rule, available as a separate 
document in the docket, for information on the cost differences 
between meeting conventional release detection requirements and the 
proposed alternative requirements for airport hydrant systems and 
UST systems with field-constructed tanks.
---------------------------------------------------------------------------

     Perform semiannual or annual bulk line testing at or above 
operating pressure with a probability of detection of 0.95 and a 
probability of false alarm of 0.05. EPA thinks this will be the most 
frequently used method due to cost and minimal impact on down time for 
the piping system. It allows owners and operators to meet a variable 
leak rate based on piping test section volume. The leak rate ranges 
from one to three gallons \39\ per hour, depending on piping volume for 
semiannual testing and from 0.5 to 1.5 gallons per hour for annual 
testing. EPA is proposing three gallons per hour as the maximum 
threshold because the majority of available bulk line testing methods 
are capable of meeting this leak detection rate. To effectively detect 
leaks from the pressurized piping systems, industry practice involves 
performing pressure-based testing at levels above standard operating 
pressure. EPA is proposing requiring a test pressure at or above 
operating pressure in consideration of these bulk piping systems 
typically operating at pressures much higher than conventional gasoline 
stations. Testing at 1.5 times operating pressure may not be practical 
or safe for these piping systems. The probabilities of detection and 
false alarm are consistent with the line leak detection requirements in 
the 1988 UST regulation.
---------------------------------------------------------------------------

    \39\ Owners and operators of bulk piping systems with test 
section volumes of 100,000 gallons or greater, due to technical 
reasons discussed in this section, may test their systems at a 
higher threshold of up to 6.0 gallons per hour within the six year 
phase-in period.
---------------------------------------------------------------------------

     Use continuous interstitial monitoring--This monitoring 
method is designed to detect a release from any portion of the 
underground piping that routinely contains product; it must operate in 
an uninterrupted manner. EPA considered requiring an automatic line 
leak detector in combination with this alternative method, similar to 
conventional pressurized piping requirements in the 1988 UST 
regulation. However, conventional line leak detectors today cannot 
properly operate on bulk pressurized piping in airport hydrant systems.
     Use an automatic line leak detector--Conventional 
pressurized piping systems operate at a significantly lower pressure 
than airport hydrant systems. In addition, EPA is not aware of a line 
leak detector that adequately detects releases on airport hydrant 
systems. Yet because some states regulate airport hydrant systems and 
industry has experience with these systems, comparable release 
detection technology may be developed in the future. With that in mind, 
EPA is

[[Page 71730]]

proposing line leak detectors be capable of detecting a release rate of 
three gallons per hour at 10 pounds per square inch line pressure 
within one hour or equivalent. This is consistent with the 1988 UST 
regulation. To detect a release from any portion of the underground 
piping that routinely contains product, EPA is proposing to combine 
this alternative with interstitial monitoring performed at least once 
every three months. This combination will quickly detect catastrophic 
releases while checking for much smaller problems on a less frequent--
every three month--basis. Owners and operators will be required to 
conduct an annual test of the line leak detector's operation according 
to the final UST regulation. See section B-5 for more information on 
the annual test.
     Approval by the implementing agency of another method if 
the owner and operator can demonstrate that the method can detect a 
release as effectively as any of the methods listed above--The 
implementing agency must consider the size of the release that the 
method can detect as well as the frequency and reliability of detection 
when comparing methods. Owners and operators must comply with any 
conditions imposed by the implementing agency on the method's use.
Release Prevention
    In Sec.  280.20, EPA is proposing new or replaced tanks and piping 
have secondary containment with interstitial monitoring. Airport 
hydrant systems' piping ranges from eight to 24 inches in diameter with 
very long lengths, sometimes miles. In contrast, pressurized piping at 
a typical retail gas station is two inches in diameter with relatively 
short lengths.
    EPA discussed with DLA Energy and industry the feasibility of 
installing secondary containment on piping associated with airport 
hydrant systems. These systems, primarily located on military 
installations, are complex and lack similarity. EPA is taking the 
position that installing secondary containment on airport hydrant 
system piping may be impracticable.
    To detect a leak, secondary containment must be a liquid tight 
barrier designed to hold the leak between the tank and the barrier. 
Piping is sloped in fractions of an inch per foot of piping run to 
direct a leak toward the interstitial monitor. Because airport hydrant 
system piping lengths can typically be thousands of feet, it would be 
very difficult to install a system with enough slope that could 
adequately monitor the lowest point of a piping run. In addition, 
variable sized fittings are needed to join different diameters of 
piping, increasing the complexity of installing secondary containment. 
Finally, airport hydrant system piping is normally constructed of 
steel. Condensation can accumulate between the inner and outer walls, 
promoting corrosion of both pipe walls in the interstitial space and 
increasing the likelihood of a release to the environment.
    EPA acknowledges engineering and design challenges (that is, 
varying piping diameter and length, along with corrosion) that can 
occur when providing secondary containment for piping associated with 
airport hydrant systems.\40\ Therefore, EPA is proposing not to require 
this piping meet secondary containment requirements. However, EPA is 
proposing new and replaced underground tanks associated with airport 
hydrant systems meet secondary containment requirements. See section A-
2 for more information about proposed secondary containment 
requirements for tanks.
---------------------------------------------------------------------------

    \40\ DOD's DLA Energy, ``Response to EPA--Release Detection 
Point Paper,'' dated 03/10.
---------------------------------------------------------------------------

    As with all other regulated UST systems, EPA is proposing all 
airport hydrant systems meet corrosion protection requirements. Because 
interim prohibition has been in effect since May 1985, these systems 
generally are already equipped with corrosion protection (that is, 
constructed of: non-corrodible material; coated and cathodically 
protected steel; fiberglass reinforced plastic; or steel tank clad with 
fiberglass reinforced plastic).
    EPA is proposing not to allow adding internal lining as a means of 
corrosion protection for tanks in airport hydrant systems that are not 
already upgraded. In the 1988 UST regulation, EPA allowed internal 
lining as a corrosion protection upgrade, but stated in the preamble 
that internal lining of steel tanks was a temporary upgrade to meet 
corrosion protection requirements, only if the lining continued meeting 
original design specifications. After 1998, if an inspected lining did 
not meet original design specifications and could not be repaired 
according to industry codes, it no longer met the upgrade requirements 
and had to be replaced. In addition, lining inspections show there are 
issues with internal linings.\41\ Reports of premature failures due to 
improper installation cause additional concerns about the long-term 
integrity of the lining.\42\ A study of lined tanks up to12 years old 
concluded that 44 percent of tanks' linings were cracked, discolored, 
and flaked from tank walls.\43\ If internal lining fails, the chance of 
a leak into the environment is greater when there is no external 
corrosion protection on the tank. Because of these concerns, EPA is 
proposing internal lining not be an option for meeting the corrosion 
protection requirements for tanks in airport hydrant systems.
---------------------------------------------------------------------------

    \41\ LUSTLINE, Bulletin 38, June 2001. http://www.neiwpcc.org/lustline/.
    \42\ Wisconsin Department Of Commerce Web site: http://www.commerce.state.wi.us/er/pdf/bst/ProgramLetters_PL/ER-BST-PL-LINING.pdf.
    \43\ LUSTLINE, Bulletin 30, September 1998. http://www.neiwpcc.org/lustline/.
---------------------------------------------------------------------------

    As with all other regulated UST systems, EPA is proposing airport 
hydrant systems meet spill and overfill requirements to prevent 
releases to the environment. After discussion with industry and DLA 
Energy, EPA is taking the position that existing airport hydrant 
systems are already equipped with spill prevention devices that will 
adequately prevent spills and overfills.
    Airport hydrant systems installed on or before the effective date 
of the final UST regulation that do not meet the upgrade requirements 
within three years after the effective date of the rule must be 
permanently closed according to Sec.  280.70. EPA is requiring 
permanent closure to prevent releases to the environment from airport 
hydrant systems that have not been upgraded.
Notification
    To make implementing agencies aware airport hydrant systems exist, 
EPA is proposing owners of these systems submit a one-time notification 
to the implementing agency. Owners must notify within 30 days of the 
effective date of the final regulation. This will allow implementing 
agencies to include airport hydrant systems in their inventories.
Financial Responsibility
    Because EPA is proposing to eliminate the deferral for airport 
hydrant systems, they will no longer be exempt from financial 
responsibility requirements in subpart H. Owners and operators will be 
required to comply by the effective date of the final UST regulation. 
The 1988 UST financial responsibility regulation exempts state and 
federal entities. Therefore, federal and state owners and operators of 
airport hydrant systems will not have to meet the financial 
responsibility requirement. Nearly all airport hydrant systems are 
owned by the federal government.

[[Page 71731]]

Deferred Components
    EPA is proposing to continue deferring aboveground tanks associated 
with airport hydrant systems from the requirements of subparts B, C, D, 
E, and G. EPA regulates underground storage tanks and piping through 40 
CFR part 280 and aboveground tanks through 40 CFR part 112 (Oil 
Pollution Prevention). Facilities with 1,320 gallons of aboveground oil 
storage capacity that could reasonably be expected to discharge oil 
into navigable waters or adjoining shoreline are subject to the SPCC 
regulation, under the authority of the Clean Water Act (CWA).\44\ The 
SPCC regulation includes requirements for oil spill prevention, 
preparedness, and response to prevent oil discharges to navigable 
waters and adjoining shorelines.\45\ The SPCC regulation requires 
periodic integrity testing and inspection of bulk storage containers 
and periodic integrity testing and leak testing of valves and piping 
associated with containers. The SPCC regulation also requires regulated 
facilities prepare and maintain a written plan that includes measures 
to prevent, prepare for, and respond to oil discharges that threaten 
navigable waters and adjoining shorelines. For these reasons, we 
believe the SPCC regulation is the most effective means of addressing 
aboveground tanks associated with airport hydrant systems.
---------------------------------------------------------------------------

    \44\ Overview Of Oil Pollution Prevention Regulations. http://www.epa.gov/oem/content/lawsregs/opprover.htm.
    \45\ Spill Prevention, Control, And Countermeasure Rule. http://www.epa.gov/oem/content/spcc/index.htm.
---------------------------------------------------------------------------

What issues related to this change does EPA request comment or 
additional data on?

     Are the release detection options and time frames 
appropriate and sufficient?
     Is the performance requirement of three gallons per hour 
at 10 pounds per square inch line pressure within one hour or 
equivalent proposed for line leak detectors for bulk piping 
appropriate?
     Should EPA consider including specific requirements for 
non-pressurized piping tightness testing methods such as chemical 
marker methods? If so, what should those requirements be?
     Are there other release detection options EPA should 
consider?
     In order to address potential concerns associated with 
over pressurizing bulk piping systems, EPA proposed testing at the 
system's operating pressure instead of above it. EPA understands there 
are industry standards that recommend testing above operating pressure. 
Is testing these systems at operating pressure sufficient? Please 
provide specific detail to accompany your answer.
     Is the definition of airport hydrant fuel distribution 
system clear and appropriate?
     Are you aware of any releases from airport hydrant 
systems? If so, what were the sources, causes, and impacts to the 
environment?
     Should EPA consider revising the date in 280.73 for 
previously deferred UST systems? Revision of this date would mean that 
these UST systems closed prior to the effective date of the final rule 
would not have to meet Subpart G unless the implementing agency directs 
otherwise based on a current or potential threat to human health and 
the environment. How many of these UST systems have been closed since 
December 22, 1988?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
3. UST Systems With Field-Constructed Tanks

What is EPA proposing?

    EPA is proposing to regulate currently deferred UST systems with 
field-constructed tanks. This means field-constructed tanks will no 
longer be deferred from the requirements of 40 CFR part 280, subparts B 
(UST Systems: Design, Construction, Installation and Notification), C 
(General Operating Requirements), D (Release Detection), E (Release 
Reporting, Investigation, and Confirmation), G (Out-of-Service UST 
Systems and Closure), and H (Financial Responsibility).
    UST systems with field-constructed tanks installed on or before the 
effective date of the final UST regulation must begin meeting the 
requirements of subparts B (except Sec.  280.22) and C within three 
years of the effective date of the final UST regulation, subpart D 
according to the schedule in the table below, and Sec.  280.22 of 
subpart B along with subparts E, G, and H on the effective date of the 
final UST regulation. UST systems with field-constructed tanks 
installed after the effective date of the final UST regulation must 
meet these requirements at the time of installation.

                   Schedule for Phase In of Subpart D
------------------------------------------------------------------------
                                Time frame (after
 Component and type of release    [effective date      Description of
        detection used              of rule ])          requirement
------------------------------------------------------------------------
Piping using periodic           Within three       Conduct one piping
 pressurized bulk line           years.             tightness test
 tightness testing.             Between years       according to the
                                 three and six..    bulk line tightness
                                                    testing requirement
                                                    using the maximum
                                                    detectable leak
                                                    rates for semiannual
                                                    testing. For bulk
                                                    piping segments not
                                                    capable of meeting
                                                    the 3.0 gallon per
                                                    hour leak rate,
                                                    owners and operators
                                                    may use a leak rate
                                                    of up to 6.0 gallons
                                                    per hour.
                               -----------------------------------------
                                Between years six  Conduct one piping
                                 and seven.         tightness test
                                                    according to the
                                                    bulk line tightness
                                                    testing requirement
                                                    using the maximum
                                                    detectable leak
                                                    rates for semiannual
                                                    testing.
                               -----------------------------------------
                                After year seven.  Begin conducting
                                                    piping tightness
                                                    testing according to
                                                    the bulk line
                                                    tightness testing
                                                    requirement.
------------------------------------------------------------------------
All other piping and tank       Within three       Perform release
 release detection methods.      years.             detection according
                                                    to this subpart.
------------------------------------------------------------------------

[[Page 71732]]

Release Detection--Tanks
    EPA is proposing that UST systems with field-constructed tanks 
installed prior to the effective date of the final UST regulation meet 
these release detection requirements:
     Field-constructed tanks with capacity less than or equal 
to 50,000 gallons must be monitored using the release detection methods 
in Sec.  280.43.
     Field-constructed tanks with a capacity greater than 
50,000 gallons must either be monitored using release detection methods 
in Sec.  280.43 or use one of these alternatives:
    [cir] Conduct an annual bulk tank tightness test that can detect a 
0.5 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 
one gallon per hour or less. At least every three years, this method 
must be combined with a bulk tank tightness test that can detect a 0.2 
gallon per hour leak rate;
    [cir] At least once every 30 days, use an automatic tank gauging 
system to perform release detection, which can detect a leak rate of 
two gallons per hour or less. At least every two years, this method 
must be combined with a bulk tank tightness test that can detect a 0.2 
gallon per hour leak rate; or
    [cir] The implementing agency may approve another method if the 
owner and operators can demonstrate the method can detect a release as 
effectively as any of the other three methods. In comparing methods, 
the implementing agency shall consider the size of release the method 
can detect and frequency and reliability of detection. Owners and 
operators must comply with conditions imposed by the implementing 
agency.

All bulk tank tightness testing must be capable of detecting leak rates 
with a probability of detection of 0.95 and a probability of false 
alarm of 0.05.
    All recordkeeping requirements in Sec.  280.45 apply to these 
proposed release detection methods.
    Tanks associated with new or replaced UST systems with field-
constructed tanks installed after the effective date of the final UST 
regulation must be secondarily contained and perform interstitial 
monitoring according to Sec.  280.43(g).
Release Detection--Piping
    EPA is proposing underground piping of UST systems with field-
constructed tanks meet the release detection requirements for hydrant 
piping described in C-2--Airport Hydrant Fuel Distribution Systems.
Release Prevention
    EPA is proposing UST systems with field-constructed tanks meet 
corrosion protection, spill, and overfill requirements. For corrosion 
protection, EPA is proposing UST systems with field-constructed tanks 
meet one of these:
     The new tank and piping standards described in Sec.  
280.20; or
     UST systems with field-constructed tanks installed on or 
before the effective date of the final UST regulation can be 
constructed of metal and cathodically protected according to a code of 
practice developed by a nationally recognized association or 
independent testing laboratory and meet the following:
    [cir] Field installed cathodic protection systems must be: designed 
by a corrosion expert; designed to allow for the determination of 
current operating status for impressed current systems; and operated 
and maintained in accordance with Sec.  280.31 or guidelines 
established by the implementing agency; and
    [cir] Tanks greater than 10 years old without cathodic protection 
must be assessed to ensure they are structurally sound and free of 
corrosion holes prior to adding cathodic protection. The assessment 
must be by internal inspection or another method the implementing 
agency determines adequately assesses the tank for structural soundness 
and corrosion holes.

EPA is proposing UST systems with field-constructed tanks installed on 
or before the effective date of the final UST regulation that are not 
upgraded according to Sec.  280.21 within three years of the effective 
date of the final UST regulation must be permanently closed according 
to Sec.  280.70. EPA is proposing internal lining not be allowed for 
meeting the corrosion protection upgrade requirement.
    EPA is proposing to exclude new and replaced piping of UST systems 
with field-constructed tanks from secondary containment requirements in 
Sec.  280.20(b).
Notification
    EPA is proposing that, no later than 30 days after the effective 
date of the final UST regulation, owners of regulated UST systems with 
field-constructed tanks notify appropriate implementing agencies that 
their systems exist.
Financial Responsibility
    EPA is proposing UST systems with field-constructed tanks no longer 
be deferred. This means UST systems with field-constructed tanks that 
have not been permanently closed will be subject to financial 
responsibility requirements in subpart H.
Deferred Components
    EPA is proposing to continue deferring aboveground tanks associated 
with UST systems with field-constructed tanks from the requirements of 
subparts B, C, D, E, and G.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing to regulate UST systems with field-constructed 
tanks because they are very large and pose a substantial threat to 
human health and the environment. Typical tank sizes range from 20,000 
gallons to greater than two million gallons. The total universe of UST 
systems with field-constructed tanks is small. There are approximately 
239 UST systems with field-constructed tanks.
    Several releases from bulk field-constructed tanks have been 
recorded at the Craney Island Fuel Terminal in Portsmouth, VA.\46\ For 
example, a 2.1 million gallon field-constructed UST system that 
operated from the 1950s to the mid 1980s released an estimated 300,000 
to 500,000 gallons of product into the environment. Free product was 
found within 20 feet of a nearby creek, and the resulting plume covered 
more than five acres. Remediation efforts have been on-going since 
1986. The release was attributed to tank and/or piping failures and 
possibly from a nearby tank that had a 127,000 gallon overfill in 1986. 
Another 2.1 million gallon field-constructed tank system that operated 
from the 1950s until 2000 released an estimated 175,000 to 250,000 
gallons of jet fuel into the environment. The release was attributed to 
piping failures. The resulting plume covered three acres and threatened 
a nearby creek. In both of these examples, release prevention and 
release detection requirements could have reduced the severity of these 
releases and may well have prevented these releases.
---------------------------------------------------------------------------

    \46\ Virginia Department of Environmental Quality.
---------------------------------------------------------------------------

    EPA is also proposing this change because design and construction 
standards for UST systems with field-constructed tanks are now 
available. In the 1988 UST regulation preamble, EPA indicated tank 
design and construction methods for field-constructed tanks differed 
from factory-built tanks; we did not have sufficient time to develop an 
appropriate regulation related to design and construction for those 
tanks. Although design standards are now

[[Page 71733]]

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. However, 
military construction standards, written as guidance for aboveground 
and underground storage tank construction projects on military 
installations, are available.\47\ EPA considers current military 
construction standards appropriate to sufficiently address field-
constructed tank design and construction. Implementing agencies may use 
military design and construction standards to address the site specific 
nature of field-constructed tank systems on military installations. 
Note that more stringent standards will prevail if a field-constructed 
tank is installed in a locale with more stringent design standards. EPA 
expects owners and operators to use these existing standards and 
specifications for design and construction of UST systems with field-
constructed tanks.
---------------------------------------------------------------------------

    \47\ United Facilities Criteria (UFC) 3-460-01, ``Petroleum Fuel 
Facilities,'' prescribes basic specifications and guidance for 
designing fueling systems on military installations. Unless 
otherwise noted, the handbook uses nationally recognized association 
and institute standards in accordance with the appropriate service 
policy. For the purposes of this preamble, a ``field-constructed 
tank'' is analogous to a ``cut and cover'' tank.
---------------------------------------------------------------------------

    EPA is proposing UST systems with field-constructed tanks installed 
on or before the effective date of the final UST regulation begin 
meeting the requirements of subparts B (except Sec.  280.22) and C 
within three years of the effective date of the final UST regulation, 
subpart D according to the phase in schedule in the table above, and 
Sec.  280.22 of subpart B along with subparts E, G, and H on the 
effective date of the final UST regulation. UST systems with field-
constructed tanks installed after the effective date of the final UST 
regulation must meet all requirements at installation. Three years 
allows owners and operators enough time to implement the requirements 
of subparts B (except Sec.  280.22) and C. EPA is providing a phase in 
period for bulk line tightness testing in subpart D to allow owners and 
operators ample time to upgrade their piping systems and meet the leak 
rate criteria. EPA is proposing to allow owners and operators for the 
first six years (two test periods) to meet a higher threshold of up to 
6.0 gallons per hour for those piping segments that cannot meet the 
more stringent maximum 3.0 gallons per hour threshold, due to technical 
reasons. These technical reasons include exceeding capabilities of 
currently available pressure-based methods to achieve the required leak 
rate. Currently available methods are capable of testing larger volume 
test sections to a leak rate of 6.0 gallons. The higher threshold of 
6.0 gallons per hour provides for use of existing test methods during 
the first six year period. Six years will provide owners and operators 
time to upgrade their piping systems to meet the up to 3.0 gallon per 
hour threshold for semiannual testing. Between years six and seven of 
the phase in, EPA proposes to allow owners and operators to conduct one 
additional bulk tightness test that meets the semiannual testing 
threshold. Beginning in year seven, owners and operators must begin 
meeting the semiannual and annual bulk line tightness testing 
requirements described earlier in this section. For all other tank and 
piping release detection options, EPA is proposing a three year phase 
in because these methods will not require significant construction or 
upgrades for implementation. Finally, owners and operators can 
implement the requirements of Sec.  280.22 of subpart B along with 
subparts E, G, and H beginning on the effective date of the final UST 
regulation because upgrades or special equipment are not needed to meet 
the requirements in these subparts.
Release Detection
    In the 1988 UST regulation, EPA deferred UST systems with field-
constructed tanks in part due to lack of appropriate release detection 
methods. At that time, EPA believed the majority of release detection 
methods applied to factory-built tank systems and did not adequately 
work for UST systems with field-constructed tanks. Over the last 20 
years, effective release detection methods for UST systems with field-
constructed tanks have evolved. However, prescribed leak rates for 
field-constructed tanks differ from those in Sec.  280.43 of the 1988 
UST regulation, which generally apply to factory-built tanks. 
Additionally, 19 state UST programs, which include approximately 60 
percent of the existing universe of these UST systems, now regulate UST 
systems with field-constructed tanks.
    NWGLDE's list in Bulk Underground Storage Tank Leak Detection 
Methods (50,000 Gallons or Greater) \48\ identifies several methods 
applicable to field-constructed tanks. Third party evaluators verified 
those release detection methods achieve a variety of performance 
standards. EPA contacted several vendors and DLA Energy to find out 
about their experiences with release detection methods for field-
constructed tanks in states, such as California, which require UST 
systems with field-constructed tanks meet release detection 
requirements.
---------------------------------------------------------------------------

    \48\ National Work Group on Leak Detection Evaluation's (NWGLDE) 
List of Leak Detection Evaluations for Storage Tank Systems: http://www.nwglde.org/.
---------------------------------------------------------------------------

    EPA recognizes that most release detection methods for factory-
built tanks are capable of monitoring UST systems with field-
constructed tanks up to 50,000 gallons. After evaluating current 
methods, EPA realized existing release detection options for tanks in 
Sec.  280.41 of the 1988 UST regulation are generally not applicable to 
UST systems greater than 50,000 gallons because most methods are 
limited by tank capacity. As a result, EPA is proposing alternative 
release detection monitoring methods at different leak rates and 
frequencies for UST systems with field-constructed tanks greater than 
50,000 gallons than for factory-built tanks.
    Based on limited data about leaks from field-constructed tanks, EPA 
is proposing two release detection requirements depending on tank size. 
UST systems with field-constructed tanks up to 50,000 gallons will be 
required to meet requirements in Sec.  280.41(a). UST systems with 
field-constructed tanks greater than 50,000 gallons will be required 
either to meet requirements in Sec.  280.41(a) or use an alternative 
release detection method described below. EPA estimates a subset of 
larger size tanks will be able to use automatic tank gauging systems 
set to achieve leak rates in 280.43(d). NWGLDE's list identifies 
numerous automatic tank gauging systems capable of detecting leaks on 
tanks up to 100,000 gallons.\49\
---------------------------------------------------------------------------

    \49\ National Work Group on Leak Detection Evaluation's (NWGLDE) 
List of Leak Detection Evaluations for Storage Tank Systems: http://www.nwglde.org/.
---------------------------------------------------------------------------

    Owners and operators of UST systems with field-constructed tanks 
greater than 50,000 gallons will be allowed to choose several 
alternative release detection methods. They must either perform annual 
bulk underground tank tightness testing that can detect a 0.5 gallon 
per hour leak rate or use an automatic tank gauging system that can 
detect up to a two gallon per hour leak rate. Depending on the 
automatic tank gauging system's leak rate, a bulk underground tank 
tightness test at a rate of 0.2 gallon per hour will be required at 
least every two or three years. This proposed automatic tank gauging 
requirement is different from the 1988 release detection requirement 
for factory-built tanks. These proposed leak

[[Page 71734]]

rates and time frames for release detection testing are appropriate 
because they will detect releases within a reasonable time frame given 
the large tank sizes and time needed to perform testing on these tanks.
    In addition, implementing agencies may approve another method of 
release detection for UST systems with field-constructed tanks if the 
owner and operator can demonstrate the method can detect a release as 
effectively as any of the methods listed above. The implementing agency 
must consider the size of release the method can detect as well as 
frequency and reliability of detection when comparing methods. Owners 
and operators must comply with any conditions imposed by the 
implementing agency on the method's use.
    EPA acknowledges the complexities in performing release detection 
on tanks significantly larger than 50,000 gallons. Perhaps the most 
critical aspect is allowing sufficient time for a tank to reach a state 
of equilibrium. As tank size increases, the time for a tank to reach an 
equilibrium state increases significantly. Based on discussions with 
release detection vendors, many larger tanks require multiple inactive 
days to yield an accurate test result.
    Most UST systems with field-constructed tanks are owned by DoD. 
Taking these tanks out of service for multiple days to meet the 1988 
release detection requirement would impede DoD's mission, be 
impractical to sustain, and result in significant costs.\50\ Our 
proposed alternatives for release detection provide appropriate 
environmental protection without substantially compromising DoD's 
mission. DoD can choose to combine an automatic tank gauge, at leak 
rates achievable by automatic tank gauges on the market for monthly 
tank monitoring, with precision bulk tank tightness testing. The 
probabilities of detection and false alarm EPA proposes for bulk tank 
tightness testing are consistent with the line leak detection 
requirements in the 1988 UST regulation. DoD can also choose to perform 
bulk tank tightness testing as a stand-alone method of release 
detection. Staggering the test frequency will allow DoD to take tanks 
out of service at different intervals without hindering its mission.
---------------------------------------------------------------------------

    \50\ See section F of this preamble and Regulatory Impact 
Analysis (RIA) for the proposed rule, available as a separate 
document in the docket, for information on the cost differences 
between meeting conventional release detection requirements and the 
proposed alternative requirements for airport hydrant systems and 
UST systems with field-constructed tanks.
---------------------------------------------------------------------------

    Although current release detection methods can successfully perform 
tests and detect leaks on pressurized piping at retail service 
stations, these systems cannot achieve the same level of accuracy on 
large diameter underground piping of UST systems with field-constructed 
tanks. EPA is proposing piping of UST systems with field-constructed 
tanks meet the same requirements proposed for airport hydrant system 
piping. See section C-2 for proposed release detection requirements for 
airport hydrant system piping.
Release Prevention
    In Sec.  280.20, EPA is proposing new or replaced tanks and piping 
have secondary containment. Secondary containment poses a much smaller 
risk to the environment by providing an additional measure for 
containing released regulated substances in the interstitial space 
between the two walls of the UST system. Secondary containment must be: 
Able to contain regulated substances released from the UST system until 
they are detected and removed; able to prevent the release of regulated 
substances to the environment at any time during the operational life 
of the UST system; and checked for evidence of a leak at least once 
every 30 days using interstitial monitoring that meets the requirements 
of 280.43(g) for tanks. For UST systems with field-constructed tanks, 
EPA is proposing only new and replaced tanks meet the secondary 
containment requirement.
    EPA discussed with DLA Energy and other vendors the feasibility of 
installing secondary containment on piping of UST systems with field-
constructed tanks. Field-constructed tank system pipes range from four 
to 20 inches in diameter, with lengths normally greater than 30,000 
feet.\51\ Due to complex configurations and varying pipe lengths, we 
believe installing secondary containment on piping of UST systems with 
field-constructed tanks may be impractical. It would be difficult to 
design a liquid tight barrier that could accommodate varying diameters 
of underground piping. Because leaks occur at fittings and valves, 
installing fittings and valves to join pipes with various diameters 
along the piping run increases the likelihood of a release. Because 
field-constructed tank system pipe lengths are normally significantly 
greater than lengths of piping at a typical retail gasoline station, it 
would be very difficult to install a system with enough sloping that 
could adequately monitor the lowest point of a piping run. Finally, 
condensation can accumulate in the interstice between the inner and 
outer steel pipe walls, promoting corrosion of both pipe walls in the 
interstitial space and increasing the likelihood of a release to the 
environment.
---------------------------------------------------------------------------

    \51\ DOD's DLA Energy, ``Response to EPA--Release Detection 
Point Paper,'' dated 03/10.
---------------------------------------------------------------------------

    EPA acknowledges there are engineering and design challenges (that 
is, varying pipe diameter and length, along with water accumulation in 
the interstitial space) when secondarily containing piping of UST 
systems with field-constructed tanks.\52\ Therefore, EPA is proposing 
not to require secondary containment for piping of UST systems with 
field-constructed tanks. However, EPA is proposing new and replaced 
field-constructed tanks meet secondary containment requirements. See 
section A-2 for more information about the proposed secondary 
containment requirements for tanks.
---------------------------------------------------------------------------

    \52\ DOD's DLA Energy, ``Response to EPA--Release Detection 
Point Paper,'' dated 03/10.
---------------------------------------------------------------------------

    As with all other regulated UST systems, EPA is proposing UST 
systems with field-constructed tanks meet corrosion protection 
requirements. Because interim prohibition has been in effect since May 
1985, UST systems with field-constructed tanks generally are already 
equipped with corrosion protection (that is, constructed of: Non-
corrodible material; coated and cathodically protected steel; 
fiberglass reinforced plastic; or steel tank clad with fiberglass 
reinforced plastic). Field-constructed UST systems made of concrete 
would meet the corrosion protection requirement because they are 
constructed of a non-corrodible material.
    As with airport hydrant systems, EPA is proposing not to allow 
adding an internal lining as a means of corrosion protection for UST 
systems with field-constructed tanks that are not already upgraded. See 
section C-2 for an explanation of why EPA is not allowing these USTs to 
be upgraded with internal lining.
    As with all other regulated UST systems, EPA is proposing UST 
systems with field-constructed tanks meet spill and overfill 
requirements to prevent releases to the environment. After discussion 
with industry and DoD's DLA Energy, EPA is taking the position that 
existing UST systems with field-constructed tanks are already equipped 
with spill and overfill prevention devices that will adequately prevent 
spills and overfills.

[[Page 71735]]

    UST systems with field-constructed tanks installed on or before the 
effective date of the final UST regulation that do not meet the upgrade 
requirements within three years after the effective date of the rule 
must be permanently closed according to Sec.  280.70. EPA is requiring 
permanent closure to prevent releases to the environment from UST 
systems with field-constructed tanks that have not been upgraded.
Notification
    To make implementing agencies aware that UST systems with field-
constructed tanks exist, EPA is proposing owners of these systems 
submit a one-time notification to the implementing agency. Owners must 
notify within 30 days of the effective date of the final regulation. 
This will allow implementing agencies to include UST systems with 
field-constructed tanks in their inventories.
Financial Responsibility
    Because EPA is proposing to eliminate the deferral for UST systems 
with field-constructed tanks, they will no longer be exempt from 
financial responsibility requirements in subpart H. Owners and 
operators will be required to comply by the effective date of the final 
UST regulation. The 1988 UST financial responsibility regulation 
exempts state and federal entities. Therefore, federal and state owners 
and operators of UST systems with field-constructed tanks will not have 
to meet the financial responsibility requirement. Nearly all UST 
systems with field-constructed tanks are owned by the federal 
government.
Deferred Components
    As with airport hydrant systems, EPA is proposing to continue 
deferring the aboveground tanks associated with UST systems with field-
constructed tanks from subparts B, C, D, E, and G. See section C-2 for 
an explanation of why EPA proposes to continue deferring these 
aboveground components.

What issues related to this change does EPA request comment or 
additional data on?

     Are the release detection options and time frames 
appropriate and sufficient?
     Are there other release detection options EPA should 
consider?
     Are you aware of any releases from UST systems with field-
constructed tanks? If so, what were the sources, causes, and impacts to 
the environment?
     Is the proposed time frame for implementing the 
requirements for UST systems with field-constructed tanks reasonable? 
If not, please explain why.
     Should EPA consider alternative options for closing very 
large UST systems in place? For example, should EPA consider requiring 
removal or allowing closure in place without filling the UST?
     Should EPA consider revising the date in 280.73 for 
previously deferred UST systems? Revision of this date would mean that 
these UST systems closed prior to the effective date of the final rule 
would not have to meet Subpart G unless the implementing agency directs 
otherwise based on a current or potential threat to human health and 
the environment. How many of these UST systems have been closed since 
December 22, 1988?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
4. Wastewater Treatment Tank Systems

What is EPA proposing?

    EPA is proposing to regulate wastewater treatment tank systems that 
are not part of a wastewater treatment facility regulated under Sec.  
402 or 307(b) of the CWA.
    This means wastewater treatment tank systems that are currently 
deferred in Sec.  280.10(c)(1) will no longer be deferred from the 
requirements of 40 CFR part 280 subparts B (UST Systems: Design, 
Construction, Installation and Notification), C (General Operating 
Requirements), D (Release Detection), E (Release Reporting, 
Investigation, and Confirmation), G (Out-of-Service UST Systems and 
Closure), and H (Financial Responsibility). These wastewater treatment 
tanks that are currently deferred in Sec.  280.10(c)(1) will be 
referred to as ``wastewater treatment tanks'' in the discussion below.
    Wastewater treatment tank systems installed on or before the 
effective date of the final UST regulation must begin meeting the 
requirements of subparts B (except Sec.  280.22), C, and D within three 
years of the effective date of the final UST regulation and Sec.  
280.22 of subpart B along with subparts E, G, and H on the effective 
date of the final UST regulation. Wastewater treatment tank systems 
installed after the effective date of the final UST regulation must 
meet these requirements at the time of installation.
Release Detection
    EPA is proposing wastewater treatment tank systems no longer be 
deferred from release detection. This means wastewater treatment tank 
systems must meet the release detection requirements in 40 CFR part 
280, subpart D.
Release Prevention
    EPA is proposing wastewater treatment tank systems meet corrosion 
protection, spill, and overfill requirements. For corrosion protection, 
EPA is proposing wastewater treatment tank systems meet one of these:
     The new tank and piping standards described in Sec.  
280.20; or
     Wastewater treatment tank systems installed on or before 
the effective date of the final UST regulation can be constructed of 
metal and cathodically protected according to a code of practice 
developed by a nationally recognized association or independent testing 
laboratory and meet the following:
    [cir] Field installed cathodic protection systems must be: Designed 
by a corrosion expert; designed to allow for the determination of 
current operating status for impressed current systems; and operated 
and maintained in accordance with Sec.  280.31 or guidelines 
established by the implementing agency; and
    [cir] Tanks greater than 10 years old without cathodic protection 
must be assessed to ensure they are structurally sound and free of 
corrosion holes prior to adding cathodic protection. The assessment 
must be by internal inspection or another method the implementing 
agency determines adequately assesses the tank for structural soundness 
and corrosion holes.

EPA is proposing wastewater treatment tank systems installed on or 
before the effective date of the final UST regulation that are not 
upgraded according to Sec.  280.21 within three years of the effective 
date of the final UST regulation be permanently closed according to 
Sec.  280.70. EPA is proposing internal lining not be allowed for 
meeting the corrosion protection upgrade requirement.
Notification
    EPA is proposing that, no later than 30 days after the effective 
date of the final UST regulation, wastewater treatment tank system 
owners notify appropriate implementing agencies that their systems 
exist.
Financial Responsibility
    EPA is proposing wastewater treatment tank systems no longer be 
deferred. This means wastewater treatment tank systems that have not 
been permanently closed will be subject to financial responsibility 
requirements in subpart H.

[[Page 71736]]

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing to regulate wastewater treatment tank systems 
(including oil-water separators) containing regulated substances in 40 
CFR part 280 if they are not part of a wastewater treatment facility 
regulated under Sec.  402 or 307(b) of the CWA. In the 1988 UST 
regulation, EPA deferred these systems because we were uncertain about 
how many of these UST systems exist and the appropriateness of some 
release detection systems for these systems. EPA still is uncertain 
about how many wastewater treatment tank systems exist. Removing the 
deferral will allow us to determine how many are subject to 40 CFR part 
280;. In addition, release detection methods are available to detect 
releases from these systems. EPA is proposing to regulate these types 
of UST systems to protect human health and the environment from 
discharges of regulated substances contained in these systems. When 
wastewater treatment tank systems are not part of a wastewater 
treatment facility regulated under Sec.  402 or 307(b) of the CWA, they 
must meet all requirements in 40 CFR part 280, including requirements 
for design, construction, installation, and notification; general 
operating; release detection; and closure.
    To help determine the universe of wastewater treatment tank systems 
we are proposing to regulate, EPA queried several field experts. They 
were not aware of any wastewater treatment tank systems that are part 
of a wastewater treatment facility not regulated under Sec.  402 or 
307(b) of the CWA. Based on the experts' information, all wastewater 
treatment tanks, including those at most publicly-owned treatment works 
and many private treatment facilities, are all part of a wastewater 
treatment facility regulated by either Sec.  402 or Sec.  307(b) of the 
CWA and, therefore, are excluded from 40 CFR part 280. As a result, it 
appears there are no wastewater treatment tank systems currently 
deferred. However, in the event such tanks exist, they present the same 
risks as other UST systems currently regulated and need to meet the 
requirements in 40 CFR part 280 in order to protect human health and 
the environment.
    EPA is proposing that wastewater treatment tank systems installed 
on or before the effective date of the final UST regulation begin 
meeting the requirements in 40 CFR 280 subparts B (except Sec.  
280.22), C, and D within three years of the effective date of the final 
UST regulation and Sec.  280.22 of subpart B along with subparts E, G, 
and H on the effective date of the final UST regulation. This includes 
requirements for design, construction, and installation (including 
spill, overfill, and corrosion protection); release detection; 
notification; operation and maintenance; recordkeeping; and closure. In 
the 1988 UST regulation, deferred wastewater treatment tank systems 
were required to meet the interim prohibition requirements of 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, wastewater treatment tank systems are already equipped with 
corrosion protection. Wastewater treatment tank systems installed after 
the effective date of the final UST regulation must meet all 40 CFR 
part 280 requirements at installation. Three years allows owners and 
operators enough time to implement the requirements of subparts B 
(except Sec.  280.22), C, and D. EPA also is taking the position that 
owners and operators can implement the requirements of Sec.  280.22 of 
subpart B along with subparts E, G, and H beginning on the effective 
date of the final UST regulation because upgrades or special equipment 
are not needed to meet the requirements in these subparts.
    As with airport hydrant systems and UST systems with field-
constructed tanks, EPA is proposing not to allow adding an internal 
lining as a means of corrosion protection for wastewater treatment tank 
systems that are not already upgraded. See section C-2 for an 
explanation of why EPA is not allowing these USTs to be upgraded with 
internal lining.
    Wastewater treatment tank systems installed on or before the 
effective date of the final UST regulation that do not meet the upgrade 
requirements within three years after the effective date of the rule 
must be permanently closed according to Sec.  280.70. EPA is requiring 
permanent closure to prevent releases to the environment from 
wastewater treatment tank systems that have not been upgraded.

Notification

    EPA is proposing owners submit a one-time notification to 
implementing agencies for wastewater treatment tank systems not 
regulated by the CWA. Owners must notify within 30 days of the 
effective date of the final regulation. EPA is proposing this to ensure 
implementing agencies are aware these systems exist.
Financial Responsibility
    Because wastewater treatment tank systems will no longer be 
deferred, those systems not permanently closed will need to meet 
financial responsibility requirements as described in 40 CFR part 280, 
subpart H. Federal- and state-owned facilities are exempt from this 
requirement. Therefore, federal and state owners and operators of 
wastewater treatment tank systems will not have to meet this 
requirement.

What issues related to this change does EPA request comment or 
additional data on?

     EPA is taking the position that there are no wastewater 
treatment tank systems affected by this proposal. Are you aware of 
systems that would be subject to this proposed change? If yes, please 
provide information about the number and location of wastewater 
treatment tank systems that would be regulated. For instance are there 
units associated with natural gas drilling that are not regulated by 
402 or 307(b)?
     If there are wastewater tank systems, is it most 
appropriate to regulate, exempt, or continue to defer these systems? 
Please explain why.
     Should EPA consider revising the date in 280.73 for 
previously deferred UST systems? Revision of this date would mean that 
these UST systems closed prior to the effective date of the final rule 
would not have to meet Subpart G unless the implementing agency directs 
otherwise based on a current or potential threat to human health and 
the environment. How many of these UST systems have been closed since 
December 22, 1988?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
5. Maintain Deferral for USTs Containing Radioactive Material and 
Emergency Generator UST Systems at Nuclear Power Generation Facilities 
Regulated by the Nuclear Regulatory Commission
    EPA is not proposing changes to the 1988 UST regulation deferral in 
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 Nuclear Regulatory Commission (NRC). 
Currently, these types of UST systems are deferred from most UST 
requirements but are subject to requirements for interim prohibition, 
release response and corrective action, and where applicable, lender 
liability (40 CFR part 280, subparts A, F, and I,

[[Page 71737]]

respectively). EPA has decided to keep the deferral in order to retain 
EPA's requirements for cleaning up releases from these USTs.
    EPA compared Department of Energy (DOE) Orders \53\ and NRC 
requirements to the 1988 UST regulation. This assessment revealed DOE 
and NRC requirements are comparable to EPA requirements for new and 
existing USTs regarding spill and overfill control (Sec.  280.30); 
operation and maintenance of corrosion protection (Sec.  280.31); 
compatibility (Sec.  280.32); and release detection (40 CFR part 280, 
subpart D). However, there is no independent regulatory authority for 
DOE and NRC to remediate releases. With that in mind, EPA is taking the 
position that it is appropriate to maintain the deferral for these USTs 
as it currently exists in order for EPA to continue requiring release 
response and corrective action.
---------------------------------------------------------------------------

    \53\ DOE Orders establish management objectives, identify 
performance requirements and assign responsibilities consistent with 
policy and regulations. See: https://www.directives.doe.gov/directives/types-of-directives.
---------------------------------------------------------------------------

D. Other Changes

1. Changes To Overfill Prevention Equipment Requirements

What is EPA proposing?

    In Sec.  280.20, EPA is proposing to eliminate flow restrictors 
(also called ball float valves) in vent lines as an overfill prevention 
option either when an UST system is installed or when an UST system's 
overfill prevention equipment is replaced.
    Owners and operators using a vent line flow restrictor before the 
final UST regulation becomes effective may continue using a flow 
restrictor to meet the overfill prevention requirements, as long as it 
restricts the flow of regulated substances into the UST when the device 
activates.
    Owners and operators may continue to use flow restrictors not in 
vent lines (such as flow restrictors in fill pipes), automatic shutoff 
devices, and high level alarms as overfill prevention for all UST 
systems.

Why is EPA proposing this change? What background information is 
available about this change?

    Spills and overfills are a common cause of UST system releases (see 
sections B-2 and B-3 for additional discussion). Through extensive 
stakeholder outreach, EPA identified vent line flow restrictors as a 
significant concern for operability and safety. To reduce the frequency 
of UST releases due to operability and to address system safety and 
personnel safety concerns, EPA is proposing to eliminate vent line flow 
restrictors for new installations and replacements.
     Operability--For a vent line flow restrictor to operate 
properly, the device must restrict the flow of regulated substance into 
the UST when the flow restrictor engages. If the tank top is not liquid 
or vapor tight, flow into the UST is not restricted because vapors 
continue to escape through these non-tight areas. If vapors continue to 
escape the UST, there is no pressure buildup in the vapor area of the 
tank, resulting in no reduced flow rate into the UST. Examples where 
non-tight tank tops may result in ineffective flow restrictors include: 
Loose tank bungs or other tank top components; tanks with coaxial stage 
I vapor recovery installed; and tanks with both tank top and remote 
fill areas.
     System safety--Vent line flow restrictors can create 
safety concerns when they activate. USTs can become over pressurized 
and damaged during a pressurized delivery. The 2005 version of the 
Petroleum Equipment Institute's installation standard, RP100, 
recommends against using vent restriction devices because the vent line 
flow restrictor pressurizes the UST, creating a hazardous condition 
when the device operates as designed.
     Personnel safety--Delivery personnel can be sprayed with 
regulated substances when they disconnect the delivery hose from the 
fill pipe and the vent line flow restrictor activates.

What issues related to this change does EPA request comment or 
additional data on?

     EPA considered eliminating or phasing out vent line flow 
restrictors for currently installed UST systems, but finds the cost 
burden for owners and operators could be high. Please provide input and 
information in support of or against eliminating or phasing out vent 
line flow restrictors.

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
2. Internal Linings That Fail the Periodic Lining Inspection and Cannot 
Be Repaired

What is EPA proposing?

    In Sec.  280.21, EPA is proposing owners and operators permanently 
close an UST that uses internal lining as the sole method of corrosion 
protection when both of these conditions exist:
     A lining inspection determines the internal lining is no 
longer performing according to original design specifications; and
     The internal lining cannot be repaired according to a code 
of practice developed by a nationally recognized association or 
independent testing laboratory.

For tanks with both internal lining and cathodic protection, EPA is 
proposing to allow owners and operators continue operating an UST if it 
fails the lining inspection and cannot be repaired if both of these 
criteria are met:
     The cathodic protection is operated and maintained 
according to 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.

Why is EPA proposing this change? What background information is 
available about this change?

    About 3 percent of tanks today rely on internal lining as the sole 
method of corrosion protection to meet the 1988 UST regulation.\54\ 
Tanks that are internally lined to meet the 1988 UST regulation 
corrosion protection requirement at 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, the language from the 1988 preamble was 
not included in Sec.  280.21(b)(1).
---------------------------------------------------------------------------

    \54\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

    EPA is proposing to revise the internal lining requirements to 
match EPA's intent of replacing internally lined tanks that fail a 
lining inspection and cannot be repaired according to a code of 
practice. EPA is proposing that a lined tank must be permanently closed 
if, when inspected, it cannot be repaired according to a code of 
practice.
    Owners and operators may continue using internal lining to meet the 
corrosion protection requirement, as long as:

[[Page 71738]]

     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,\55\ tanks using the combination 
of cathodic protection and internal lining for corrosion protection are 
not required to be closed if the internal lining fails and cannot be 
repaired as long as:
---------------------------------------------------------------------------

    \55\ EPA UST Technical Compendium Question and Answer 
14: http://epa.gov/oust/compend/nus.htm.
---------------------------------------------------------------------------

     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.

What issues related to this change does EPA request comment or 
additional data on?

     Should EPA consider requiring lined tanks be closed when 
they fail a lining inspection independent of whether the lining can be 
repaired? If yes, please provide information to support your answer.
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
3. Notification Requirements

What is EPA proposing?

    EPA is proposing these notification requirement changes in Sec.  
280.22:
     Notify implementing agencies within 30 days of assuming 
ownership of an UST system. A new owner is required to submit a form 
which provides the new owner's name, mailing address, physical location 
of USTs, and name of previous owner;
     Require owners who bring new UST systems into service 
notify implementing agencies of USTs, rather than state or local 
agencies designated by EPA;
     Merge the paragraph about minimum information with the 
paragraph explaining what forms to use for notification and delete the 
minimum information paragraph;
     Require owners of deferred UST systems EPA is proposing to 
require a one-time notification to implementing agencies within 30 days 
of the effective date of the final UST regulation.
    EPA is proposing changes to the ``Notification For Underground 
Storage Tanks'' form in Appendix I.
    EPA is proposing changes to the form as a result of today's 
proposal, and to change ``State'' to ``Implementing Agency'' throughout 
the form.
    EPA is proposing a new form titled ``Notification of Ownership 
Change for Underground Storage Tanks'' under Appendix II.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing the new ownership change notification to more 
effectively administer the UST program. EPA required a one-time 
notification of regulated USTs by May 8, 1986,\56\ and owners who 
purchased newly installed UST systems completed and submitted 
notification forms to implementing agencies. However, EPA did not 
require people notify implementing agencies when acquiring a regulated 
UST, such as when purchasing an existing service station.
---------------------------------------------------------------------------

    \56\ Solid Waste Disposal Act Sec.  9002(a)(1).
---------------------------------------------------------------------------

    Without a requirement to notify when persons assume ownership of 
UST systems, implementing agencies have difficulty administering the 
UST program. Persons can assume ownership through purchase, 
inheritance, acquisition of property, or other means. EPA estimates on 
average 10 percent of retail UST facilities change ownership in a given 
year.\57\ Any communication or outreach is impaired if implementing 
agencies do not know the correct owners of a large proportion of 
regulated USTs. When final, this change will ensure implementing 
agencies know the current ownership of regulated UST systems.
---------------------------------------------------------------------------

    \57\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

    At least 48 of 56 states and territories realized this need and 
instituted some form of ownership change notification. EPA is following 
the example of these states and will require an ownership change 
notification to more effectively administer the UST program.
    EPA is proposing to include a form in Appendix II titled 
``Notification of Ownership Change for Underground Storage Tanks.'' The 
new form specifies the information persons need to submit to the 
implementing agency after they become owners of underground storage 
tanks. EPA is proposing these owners provide their name, address, phone 
number, name of the facility, location of USTs, as well as the name, 
address, and phone number of the previous owner.
    EPA is also proposing owners who bring UST systems into service 
notify implementing agencies, rather than state and local agencies 
identified by EPA. This change is needed for two reasons. First, an 
unintended result of the existing requirement is owners in Indian 
country submitted notification forms to state or local agencies, not to 
EPA, even though EPA is the implementing agency in Indian country. When 
final, this change will greatly assist EPA in implementing the UST 
program in these areas. Second, many of the agency names and addresses 
EPA identified in 1988 are no longer accurate. When final, this change 
will provide owners with clarity about where to send notification forms 
and better accommodate changes of implementing agencies.
    EPA is proposing to merge the paragraphs discussing the minimum 
information owners and operators need to submit and the form to be 
submitted to implementing agencies. This will reduce redundancy and 
ease understanding of this requirement. As a result, a separate 
paragraph explaining what minimum information to submit for 
notification will be unnecessary.
    EPA is proposing owners of previously deferred UST systems notify 
implementing agencies within 30 days of the effective date of the final 
UST regulation. EPA is proposing this one-time notification because 
owners of previously deferred UST systems brought into service after 
May 8, 1986 were not required to notify implementing agencies. Because 
EPA is proposing to regulate previously deferred UST systems and to 
ensure they meet requirements of the final UST regulation, it is 
imperative implementing agencies receive notice about these UST 
systems.
    Due to EPA's proposed changes to the UST regulation, we are 
proposing changes to the notification form under Appendix I. This will 
make the form request appropriate information according to today's 
proposal. For instance, the release detection section of the 1988 UST 
regulation form did not include statistical inventory reconciliation or 
bulk tightness testing. The proposed form includes these methods.

What issues related to this change does EPA request comment or 
additional data on?

     Is a one-time notification for all UST owners also 
necessary to effectively administer the UST program in jurisdictions 
(eight states and

[[Page 71739]]

territories and Indian country) where implementing agencies do not 
currently require ownership change notification? EPA is posing this 
question because of the high rate of UST ownership changes and 
resulting likelihood implementing agencies do not know who owns 
numerous UST systems.
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
4. Alternative Fuels And Compatibility

What is EPA proposing?

    EPA is proposing changes to two definitions in Sec.  280.12 of the 
1988 UST regulation.
     Regulated substance--delete ``* * * derived from crude oil 
though \58\ [sic] processes of separation, conversion, upgrading, and 
finishing * * *''
---------------------------------------------------------------------------

    \58\ This is an error in 40 CFR 280; ``though'' should be 
``through.''
---------------------------------------------------------------------------

     Motor fuel--include explanatory language that a petroleum 
or petroleum-based substance is typically used to operate a motor 
engine and provide example products (motor gasoline, aviation gasoline, 
No. 1 or No. 2 diesel fuel, or any blend containing one or more of 
these substances, such as motor gasoline blended with alcohol) meeting 
the definition.
    In addition, EPA is proposing changes to the compatibility 
requirement in Sec.  280.32 of the 1988 UST regulation. These changes 
explain how owners and operators storing certain regulated substances 
must demonstrate that their UST systems are compatible with substances 
stored. Specifically, EPA is proposing:
     Owners and operators storing any regulated substance 
blended with greater than 10 percent ethanol or greater than 20 percent 
biodiesel, or any other regulated substance identified by the 
implementing agency, must use one or more of the following methods to 
demonstrate UST system compatibility with these regulated substances:
    [cir] Certification or listing of UST system components by a 
nationally recognized, independent testing laboratory for use with the 
fuel stored;
    [cir] Equipment or component manufacturer approval. The 
manufacturer's approval must be in writing; indicate an affirmative 
statement of compatibility; specify the range of ethanol or biodiesel 
blends the component is compatible with; and be from the equipment or 
component manufacturer; or
    [cir] Another method determined by the implementing agency to be no 
less protective of human health and the environment than the previously 
listed methods.
     Owners and operators must maintain the following records 
(according to Sec.  280.34) for the life of the equipment or component:
    [cir] Documentation of compliance with the above section as 
applicable; and
    [cir] Records of all equipment or components installed or replaced 
after the effective date of the final UST regulation. At a minimum, 
each record must include the date of installation or replacement, 
manufacturer, and model.
    EPA is also proposing to delete these codes of practice.
     American Petroleum Institute Publication 1626, ``Storing 
and Handling Ethanol and Gasoline-Ethanol Blends at Distribution 
Terminals and Service Stations''
     American Petroleum Institute Publication 1627, ``Storage 
and Handling of Gasoline-Methanol/Cosolvent Blends at Distribution 
Terminals and Service Stations''

Why is EPA proposing this change? What background information is 
available about this change?

Regulated Substance and Motor Fuel Definitions
    EPA is proposing a change in the regulated substance definition to 
clarify that petroleum does not need to be derived from crude oil in 
order to be regulated when stored in USTs. The preamble to the 
supplement to the proposal for the original UST regulation indicates 
that petroleum products can be derived from other materials, such as 
biomass, plant material, organic waste, coal, and shale oil.\59\ 
Petroleum is comprised of a complex blend of hydrocarbons regardless of 
its source material; therefore, all petroleum poses risks to human 
health and the environment.
---------------------------------------------------------------------------

    \59\ ``40 CFR Parts 280 and 281 USTs; Supplement to Proposed 
Rule,'' 52 Federal Register 246 (23 December 1987), pg. 48640.
---------------------------------------------------------------------------

    Many people interpreted the 1988 UST regulation definition of 
regulated substance as applying to petroleum USTs only if the petroleum 
was derived from crude oil. Over time, this misinterpretation may 
become more problematic as the amount of petroleum derived from non-
crude oil based products, such as natural gasoline, increases as a 
result of requirements in the Energy Independence and Security Act of 
2007. Today's regulated substance clarification will eliminate 
uncertainty about the regulatory status of tanks storing petroleum 
products derived from sources other than crude oil.
    EPA is proposing a change in the motor fuel definition to better 
accommodate new motor fuels that may be marketed and stored in the 
future. The 1988 UST regulation definition listed motor fuel products, 
leading to confusion as to whether new fuels, such as petroleum blended 
with ethanol or biodiesel, are motor fuels. Today's proposal clarifies 
the motor fuel definition to explain that it is any fuel typically used 
to operate a motor engine.
Compatibility
    EPA understands that the chemical and physical properties of 
ethanol and biodiesel can be more degrading to certain UST system 
materials than petroleum alone. As the use of ethanol- and biodiesel-
blended fuels increases, EPA is concerned that not all UST system 
components are compatible with these fuel blends.
    Gasoline containing 10 percent or less ethanol (known as E10) has 
been used in parts of the United States for many years, and UST 
equipment manufacturers accommodated the E10 market by producing 
compatible equipment. According to the Renewable Fuels Association, 
ethanol is blended into over 90 percent of all gasoline sold in the 
country,\60\ predominantly as E10. Recently, there has been a movement 
toward higher blends of ethanol, due in part to federal and state laws 
encouraging the increased use of biofuels. While most UST system 
equipment and components are compatible with E10, blends greater than 
10 percent ethanol do not have a long history of storage and may not be 
compatible with certain materials used in UST systems. According to a 
2011 report published by U.S. Department of Energy's Oak Ridge National 
Laboratory,\61\ some elastomeric materials are particularly affected by 
intermediate ethanol blends and certain sealants may not be suitable 
for any ethanol-blended fuels. A 2007 report from Underwriters 
Laboratories (UL) \62\

[[Page 71740]]

evaluated the effect of 85 percent ethanol and 25 percent ethanol 
blends on dispenser components. Results indicated some materials used 
in the manufacture of seals were degraded more when exposed to the 25 
percent ethanol test fluid than when exposed to the 85 percent ethanol 
test fluid. Other literature suggests ethanol fuel blends can be more 
aggressive toward certain materials than independent fuel constituents, 
with maximum polymer swelling observed at approximately 15 percent 
ethanol by volume.\63\ Therefore, EPA is clarifying the compatibility 
requirements for owners and operators who choose to store regulated 
substances containing greater than 10 percent ethanol.
---------------------------------------------------------------------------

    \60\ 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.
    \61\ Oak Ridge National Laboratory, ``Intermediate Ethanol 
Blends Infrastructure Materials Compatibility Study: Elastomers, 
Metals, and Sealants'' (March 2011).
    \62\ 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.
    \63\ 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.
---------------------------------------------------------------------------

    EPA is also clarifying the compatibility requirements for owners 
and operators who choose to store regulated substances containing 
greater than 20 percent biodiesel. Although the total use of biodiesel 
is significantly less than that of ethanol, it has become increasingly 
available across the United States and may also be incompatible with 
certain materials used in UST systems. Pure biodiesel (B100), for 
example, has known compatibility issues with certain materials. 
According to the U.S. Department of Energy's National Renewable Energy 
Laboratory (NREL) Biodiesel Handling and Use Guide, Fourth Edition,\64\ 
``B100 will degrade, soften, or seep through some hoses, gaskets, 
seals, elastomers, glues, and plastics with prolonged exposure * * * 
Nitrile rubber compounds, polypropylene, polyvinyl, and Tygon[supreg] 
materials are particularly vulnerable to B100.''
---------------------------------------------------------------------------

    \64\ 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 (B5 or 
less) are so similar to those of petroleum diesel that ASTM 
International (ASTM) considers conventional diesel that contains up to 
5 percent biodiesel to meet its ``Standard Specification for Diesel 
Fuel Oils'' \65\. For biodiesel blends between 5 and 100 percent, there 
is very little compatibility information; however, NREL's handling and 
use guide concludes that biodiesel blends of B20 or less have less of 
an effect on materials and very low blends of biodiesel (for example, 
B5 and B2) `` * * * have no noticeable effect on materials 
compatibility.'' \66\ In addition, fleet service sites have stored B20 
in USTs for years, and EPA is not aware of compatibility-related 
releases associated with those USTs storing B20. Therefore, EPA is 
proposing to require tank owners and operators who store greater than 
20 percent biodiesel in their UST systems demonstrate compatibility of 
UST equipment by one of the methods proposed in Sec.  280.32.
---------------------------------------------------------------------------

    \65\ ASTM Standard D975, 2010c ``Standard Specification for 
Diesel Fuel Oils,'' ASTM International, West Conshohocken, PA, 2010, 
DOI: 10.1520/D0975-10C, http://www.astm.org.
    \66\ 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.
---------------------------------------------------------------------------

    To avoid risk of increased releases due to incompatibility of 
ethanol or biodiesel blends with UST system components, EPA is 
proposing several options for owners and operators to demonstrate that 
their UST systems are compatible with regulated substances containing 
greater than 10 percent ethanol or greater than 20 percent biodiesel. 
These options provide owners and operators with flexibility in 
demonstrating compatibility, yet still protect human health and the 
environment. In the past, tank owners typically demonstrated 
compatibility by using equipment certified or listed by a nationally 
recognized, independent testing laboratory, such as Underwriters 
Laboratories (UL). Many UST components in the ground today were 
manufactured before regulated substances containing ethanol or 
biodiesel existed and are not approved by nationally recognized, 
independent testing laboratories for use with these fuel blends. 
Currently, certain tanks and piping have been tested and are listed by 
UL for use with higher-level ethanol blends. Many other components of 
the UST system, such as leak detection devices, sealants, and 
containment sumps, may not be listed by UL or another nationally 
recognized, independent testing laboratory for use with these blends.
    In addition, EPA is not aware of any nationally recognized, 
independent testing laboratory that has performed testing on UST system 
components with biodiesel-blended fuels. Absent certification or 
listing from a nationally recognized, independent testing laboratory, 
or other verification that components may be used with anything beyond 
conventional fuels, the suitability of these components for use with 
ethanol or biodiesel blends comes into question. As a result, EPA is 
providing options for demonstrating compatibility to reduce the risk of 
releases due to material incompatibility. Owners and operators choosing 
to store regulated substances blended with greater than 10 percent 
ethanol or greater than 20 percent biodiesel must demonstrate 
compatibility of the UST system before storing those regulated 
substances.
    EPA is proposing owners and operators use one of these two methods 
for demonstrating compatibility of UST equipment or components with 
regulated substances containing greater than 10 percent ethanol or 
greater than 20 percent biodiesel: using equipment or components that 
are certified or listed by a nationally recognized, independent testing 
laboratory for use with the fuel stored; or using equipment or 
components approved by the manufacturer to be compatible with the fuel 
stored. In addition, implementing agencies will have the flexibility to 
evaluate and allow other methods, if they are no less protective of 
human health and the environment than those EPA is proposing today.
    For those components tested and approved by a nationally 
recognized, independent testing laboratory, owners and operators will 
be able to demonstrate compatibility solely by keeping records of these 
components. In this instance, the testing laboratory's listing, 
labeling, or approval demonstrates the equipment or component's 
suitability to be used with the regulated substance stored, which means 
owners and operators will be able to demonstrate compatibility by 
retaining equipment or component records.
    Owners and operators will also be able to demonstrate compatibility 
by obtaining manufacturer's approval of components' compatibility with 
the regulated substance to be stored. The manufacturer's approval must 
be in writing and include an affirmative statement that the component 
is compatible with the fuel blend stored. To add clarity for tank 
owners and operators, the manufacturer's approval must also specify the 
range of fuel blends for which the component is compatible. Finally, 
the manufacturer's approval must be issued from the equipment or 
component manufacturer, not another entity (such as the installer or 
distributor). A manufacturer's approval will enable owners and 
operators to demonstrate compatibility for components not approved for 
use by a nationally recognized, independent testing laboratory. It will 
also provide confidence for implementing agencies that the component is 
compatible with the fuel stored.
    EPA is proposing an additional option which would allow 
implementing

[[Page 71741]]

agencies to approve other methods for demonstrating compatibility with 
regulated substances containing greater than 10 percent ethanol or 
greater than 20 percent biodiesel. Implementing agencies will be able 
to approve methods they consider no less protective of human health and 
the environment in addition to the manufacturer's approval or the 
listing, labeling, or approval by a nationally recognized, independent 
testing laboratory. This will provide owners and operators with 
additional flexibility when new methods to determine UST system 
component compatibility are developed.
    Although these methods for demonstrating compatibility will apply 
to UST systems storing regulated substances containing greater than 10 
percent ethanol and greater than 20 percent biodiesel, EPA is proposing 
to extend the methods to other regulated substances identified by 
implementing agencies. This will provide implementing agencies with 
flexibility when new regulated substances (for example, biobutanol) 
enter the fuel market and allow implementing agencies to apply these 
methods for determining UST system compatibility to other regulated 
substances.
    EPA is proposing owners and operators maintain records for the life 
of UST systems, if the UST system stores regulated substances 
containing greater than 10 percent ethanol or greater than 20 percent 
biodiesel or another regulated substance identified by implementing 
agencies. Owners and operators will be required to retain equipment or 
component records in order to demonstrate their systems are compatible 
with these regulated substances. Without records of the equipment or 
components, owners and operators will not be allowed to store regulated 
substances containing greater than 10 percent ethanol or greater than 
20 percent biodiesel in their UST systems.
    To demonstrate compatibility with regulated substances stored in 
UST systems, owners and operators of new and replaced equipment or 
components must retain records for the life of the equipment or 
component. This will ensure new and replaced equipment and components 
are compatible with the regulated substances stored. As equipment or 
components are replaced, records will be available for all UST system 
equipment or components, making it easier for owners and operators to 
demonstrate compatibility with new regulated substances.
    Owners and operators must demonstrate compatibility for the 
following UST system equipment or components: Tank or internal tank 
lining; piping; line leak detector; flexible connectors; drop tube; 
spill and overfill prevention equipment and components; submersible 
turbine pump equipment and components; sealants (including pipe dope 
and thread sealant); fittings; gaskets; bushings; couplings; boots; 
containment sumps (including submersible turbine sumps and under 
dispenser containment); release detection floats, sensors, and probes; 
fill and riser caps; and the product shear valve. These equipment or 
components are a subset of an UST system, as defined by Sec.  280.12, 
which, if incompatible, would lead to a liquid release to the 
environment.
    EPA is clarifying that the requirements in this section also apply 
to both newly installed equipment or components and equipment where one 
or more components are replaced. For newly installed equipment 
comprised of multiple individual, smaller components and assembled by 
the manufacturer, some manufacturers provide a compatibility 
certification for the equipment as a whole. For example, a manufacturer 
may certify the entire submersible turbine pump as being compatible. 
The submersible turbine pump certification would include all components 
(gaskets, sealants, bushings, etc.) of the equipment assembled by the 
manufacturer. Therefore, an owner may obtain one certification for 
newly installed manufacturer-assembled equipment, as long as the 
manufacturer certifies the entire piece of equipment as compatible. 
However, over the lifetime of a typical UST system, equipment is likely 
to require maintenance, which may involve replacing components such as 
gaskets, sealants, and bushings. It is important for tank owners to use 
compatible replacement components, especially since these components 
are sometimes constructed of materials that are not compatible with 
biofuel blends. Therefore, components (such as gaskets, sealants, 
bushings, etc.) replaced after the equipment was originally installed 
will not be covered by the original manufacturer's approval. Owners and 
operators will need to obtain manufacturer's certification indicating 
the replaced component is compatible with the regulated substance 
stored in the UST system.
    These proposed changes will protect human health and the 
environment from potential additional releases as a result of 
incompatible UST systems. Also, the changes are not overly burdensome, 
nor do they require costly retrofits. These changes will give owners 
and operators flexibility, yet provide EPA with confidence that UST 
systems will be compatible with new fuel blends when owners and 
operators use one or more of the proposed methods to determine 
compatibility. The additional language also provides owners and 
operators with certainty on what is acceptable in demonstrating UST 
system compatibility with the substances stored.
    EPA is also proposing to delete two codes of practice listed in the 
1988 UST regulation. EPA included codes of practice to help owners and 
operators demonstrate compliance with the compatibility requirement. 
EPA is now proposing methods for determining compatibility, so 
referencing codes of practice is unnecessary.
    In August 2010, American Petroleum Institute (API) published an 
updated version of API Recommended Practice 1626. Today's proposal 
incorporates several methods API recommends owners and operators 
storing blends of greater than 10 percent ethanol use to demonstrate 
UST system compatibility. If owners and operators follow API 
Recommended Practice 1626, Section 7 requirements, for regulated 
substances blended with ethanol, they will meet today's proposed Sec.  
280.32(b) changes.

What issues related to this change does EPA request comment or 
additional data on?

     How many UST systems currently store petroleum not derived 
from crude oil (such as natural gasoline)?
     Should EPA consider allowing professional engineers to 
make compatibility determinations?
     Are there additional methods for effectively demonstrating 
compatibility? If yes, please provide details.
     Are there other alternatives to demonstrating 
compatibility (such as using secondarily contained USTs) that tank 
owners and operators should be allowed to use, that are no less 
protective of human health and the environment?
     Are the proposed criteria for manufacturer's approval 
reasonable?
     Should EPA consider tiering methods? For example, if an 
approval or listing from a nationally recognized, independent third 
party is available, then the manufacturer approval is not an option for 
that component?
     Should EPA waive the compatibility requirement for UST 
systems with secondary containment and interstitial monitoring? Why or 
why not?
     While this proposal requires owners and operators maintain 
records to demonstrate compatibility, we are not requiring owners and 
operators transfer

[[Page 71742]]

records to new owners and operators. Should EPA consider requiring 
records transfer?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
5. Improving Repairs

What is EPA proposing?

    EPA is proposing to revise the definition of repair in Sec.  280.12 
to:
     Clarify that all UST system components, including piping, 
spill prevention equipment, overfill prevention equipment, corrosion 
protection equipment, and release detection equipment are included 
under the repairs allowed section of the regulation, and
     Remove the link that repairs are only associated with a 
release from an UST system by adding to the definition suspected 
release and equipment that has failed to function properly.
    For repairs to secondary containment areas of UST systems, overfill 
prevention equipment, and spill prevention equipment, EPA is proposing 
to add tests after a repair to the repairs allowed section (Sec.  
280.33). The tests after repair requirements for these areas are the 
same as those for periodic spill and overfill tests discussed in 
sections B-2 and B-3. The tests for interstitial areas after a repair 
and periodic interstitial integrity (in section B-4) are the same, 
except tanks with continuous interstitial sensors must perform a 
vacuum, pressure, or liquid test following the repair. These tests must 
be conducted within 30 days of a repair.

Why is EPA proposing this change? What background information is 
available about this change?

    Clarification of UST system components in the definition of 
repair--EPA is proposing to add the following UST system components to 
the definition of repair: Piping; spill prevention equipment; overfill 
prevention equipment; corrosion protection equipment; and release 
detection equipment. By adding these UST system components, EPA is 
making it clear that these specific components are subject to the 
repairs allowed section of the regulation. This means owners and 
operators performing repairs on these UST system components must follow 
the repairs allowed section (Sec.  280.33). The 1988 UST regulation 
definition of repair uses the generic term UST system component and 
provides less detail about what an UST system component is.
    Including repairs not associated with a confirmed release or 
suspected release from the UST system--It is common practice for owners 
and operators to fix UST components that have not caused a release or 
suspected release of product from the UST system. However, the repair 
definition in the 1988 UST regulation does not consider these non-
release fixes as repairs. EPA is proposing to modify the repair 
definition to include the concept of repairing equipment that failed to 
function properly, delinking a repair with a release from the UST 
system. This proposed change will ensure repair activities not 
associated with a release are conducted properly. For example, under 
the 1988 UST regulation, fixing a cathodic protection system would not 
be considered a repair because the UST component likely has not yet 
caused a release of product from the UST system. In addition, EPA is 
proposing to include a suspected release as part of the definition, so 
repairs associated with suspected releases are covered under the repair 
definition.
    By removing the link between repair and release, EPA is proposing 
owners and operators meet the repairs allowed section (Sec.  280.33) 
when fixing UST system components that have not caused a release of 
product from the UST system. This means owners and operators will need 
to have repairs performed in accordance with a code of practice 
developed by a nationally recognized association or independent testing 
laboratory and test the equipment after the repair is completed.
    Tests after repairs--To ensure equipment is operating as intended 
after a repair, EPA is proposing to require tests within 30 days of 
repairing spill, overfill, and secondary containment equipment. Except 
for interstitial integrity tests in USTs with continuous interstitial 
sensors, the tests after repairs proposal uses periodic tests described 
in sections B-2, B-3, and B-4. For USTs with continuous interstitial 
sensors, owners and operators must conduct vacuum, pressure, or liquid 
tests to ensure the secondary containment area is operating as 
intended. EPA is proposing to require tests because sensors alone 
cannot immediately determine whether repairs were completed properly. 
Vacuum, pressure, and liquid tests will be able to ensure the adequacy 
of the repair by evaluating the interstitial area. Tests after repairs 
will only apply to those UST components being repaired and not to all 
components at the UST site.
    EPA is proposing that tests of spill, overfill, and interstitial 
areas after a repair occur within 30 days of the repair. EPA chose 30 
days to be consistent with the time frame for the tightness testing 
requirement after repairing tanks and piping in Sec.  280.33.

What issues related to this change does EPA request comment or 
additional data on?

     Should EPA consider changing the time frame for conducting 
an interstitial, spill, or overfill test from 30 days to before 
returning the UST system to service?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
6. Phase Out Vapor Monitoring and Groundwater Monitoring as Release 
Detection Methods

What is EPA proposing?

    EPA is proposing to phase out vapor monitoring and groundwater 
monitoring as methods of release detection for tanks and piping in 
Sec.  280.43.
    Owners and operators of UST systems installed before the effective 
date of the final UST regulation will have five years to comply with 
another release detection monitoring method in 40 CFR 280, subpart D.

Why is EPA proposing this change? What background information is 
available about this change?

    Although EPA is proposing new and replaced tanks and piping use 
interstitial monitoring (see section A-2), UST systems installed before 
the effective date of the final UST regulation may continue to use 
internal or interstitial release detection methods listed in subpart D 
of the 1988 UST regulation. Automatic tank gauging and statistical 
inventory reconciliation are internal monitoring methods and are 
characterized by activities within the tank or piping to monitor any 
discrepancies. Groundwater monitoring and vapor monitoring are external 
monitoring methods and are characterized by monitoring external areas 
(specifically groundwater or soil-vapor) that surround an UST system. 
An interstitial method monitors the space between tank or piping walls 
and detects a release before it reaches the environment.
    EPA is proposing to phase out the two external release detection 
methods--vapor monitoring and groundwater monitoring--because these 
methods detect releases well after they enter the environment. In 
addition, there are inherent problems with installing and confirming 
proper use of these methods. As methods of release detection, they

[[Page 71743]]

are less protective of the environment than others. Regulators 
inspecting UST systems report common problems they encounter when 
inspecting UST systems using vapor or groundwater monitoring methods, 
such as an insufficient number of wells or wells improperly located to 
sufficiently monitor for potential releases.
    Vapor monitoring problems pertain to confirming whether certain 
site conditions exist. In particular, surrounding soil should be 
sufficiently porous to readily allow diffusion into the excavation 
area; the ability to measure vapors should not be affected by 
groundwater, rainfall, or soil moisture; and background contamination 
should not interfere with monitoring methods.
    A commonly encountered groundwater monitoring problem is that 
groundwater, at times, can be more than 20 feet from the ground 
surface, due to seasonal water table variations. According to the 1988 
UST regulation, groundwater must never be more than 20 feet from the 
ground surface and well slotting must be designed to allow entry of 
regulated substances on the water table into the well under both high 
and low groundwater conditions. Unfortunately, many wells are not 
installed appropriately resulting in the depth of groundwater 
requirement not being met.
    Many UST facilities do not have site assessments that confirm 
whether site conditions support use of vapor monitoring and groundwater 
monitoring release detection. In instances when site assessments are 
available, they are often not thorough enough to verify whether 
regulatory requirements are met. Without site assessments, regulators 
are unable to determine whether site conditions are met. Reassessing 
sites to verify if site conditions support use of vapor monitoring or 
groundwater monitoring is intrusive and costly. Some UST facilities 
switch between vapor monitoring and groundwater monitoring, depending 
on seasonal variations. This practice further complicates using these 
methods, such as whether groundwater rendered the vapor monitoring 
inoperable or whether the wells are designed for both methods. Even if 
optimal operating conditions are met in both of these external methods, 
by the time a release is detected, contamination has already 
significantly impacted the environment.
    In contrast, internal release detection methods have an advantage 
over external monitoring methods. Internal methods provide an early 
warning to owners and operators because they indicate unusual operating 
conditions, such as water in the tank or incremental loss of product. 
An early warning alerts owners and operators to take action and 
minimize releases to the environment.
    EPA estimates approximately 5 percent of all active UST systems are 
using vapor monitoring or groundwater monitoring to comply with release 
monitoring requirements.\67\ Because of the time it may take for owners 
and operators to convert to another method of release detection, five 
years will allow sufficient time for UST system owners and operators to 
begin using another method of release detection.
---------------------------------------------------------------------------

    \67\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

What issues related to this change does EPA request comment or 
additional data on?

     Is five years for owners and operators using vapor 
monitoring and groundwater monitoring to switch to another method too 
short, too long, or an appropriate length?
     Are there circumstances at existing facilities that would 
warrant a subset of UST systems to use vapor monitoring or groundwater 
monitoring beyond the proposed period of five years. If so, what are 
the circumstances?
     Is EPA's assumption of 5 percent accurate for the number 
of active UST systems using vapor monitoring or groundwater monitoring 
to comply with release detection requirements?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
7. Interstitial Monitoring Results, Including Interstitial Alarms, 
Under Subpart E

What is EPA proposing?

    EPA is proposing clarifications of UST owners' and operators' 
responsibilities regarding interstitial monitoring results, including 
alarms, under 40 CFR part 280, subpart E. Specifically, EPA is 
proposing these changes:
     Section 280.50(b)--add interstitial spaces of secondarily 
contained UST systems and provide examples of unusual operating 
conditions.
     Section 280.50(c)--clarify that an alarm during release 
detection monitoring is subject to the reporting requirement.
     Section 280.52(a)--require owners and operators of UST 
systems with secondary containment using interstitial monitoring follow 
integrity test requirements (proposed in section B-4) to confirm a 
suspected release, and clarify actions UST owners and operators must 
take if a test confirms a leak or indicates a release exists.

Why is EPA proposing this change? What background information is 
available about this change?

    The 1988 UST regulation adequately covers interstitial monitoring. 
Nonetheless, EPA is proposing these changes to reinforce that a leak 
into an interstitial space of a secondarily contained UST system is 
also a potential threat to the environment and must be investigated, 
addressed, and as necessary, reported.
    In section A-2, EPA is proposing interstitial monitoring for all 
new or replaced tanks and piping. As new systems are installed, 
interstitial monitoring will become more widely used as a method of 
release detection. With this in mind, EPA wants UST owners and 
operators to clearly understand how interstitial monitoring results, 
including interstitial alarms (and alarms associated with other types 
of release detection monitoring if interstitial monitoring is not 
used), must be handled.
    In the 1988 UST regulation, EPA intended that product or water in 
the interstice, and alarms signifying the presence of those conditions, 
are unusual operating conditions and must be investigated 
appropriately. However, EPA did not indicate how UST owners and 
operators were to address discrepancies with interstitial spaces. As a 
result, some UST owners and operators were uncertain about how best to 
respond to interstitial monitoring results and alarms associated with 
interstitial monitoring that indicate a release may have occurred. This 
section provides specific information to alleviate uncertainty for 
owners and operators.
     Add interstitial spaces of secondarily contained UST 
systems and provide examples of unusual operating conditions
    [cir] Two unusual operating condition examples--water in the 
interstitial space (presumably from a breach in the secondary wall) and 
product in the interstitial space (presumably from a breach in the 
primary wall)--are important along with other suspected release 
conditions listed in the 1988 UST regulation. Water or product in the 
interstitial space indicates there is a problem with the UST system 
that needs to be resolved. As a result, EPA is specifying these 
conditions as unusual operating conditions and will

[[Page 71744]]

require UST owners and operators investigate and address them.
     Clarify that an alarm during release detection monitoring, 
which indicates a potential release or compromise of the interstitial 
space, is subject to the reporting requirement
    [cir] UST owners and operators must appropriately address release 
detection monitoring alarms. For example, continuously monitored 
systems will trigger an alarm indicating a potential release or that 
the interstitial space has been compromised. UST owners and operators 
must appropriately address all alarms in the same manner. EPA is adding 
interstitial monitoring in subpart E to emphasize its importance 
because the proposed secondary containment requirement for new and 
replaced system discussed in section A-2 will increase the use of 
interstitial monitoring. UST owners and operators will not be required 
to report alarms from defective equipment or false alarms as suspected 
releases. Also, UST owners and operators will not have to report leaks 
that are contained in the interstitial space, but they must investigate 
and repair the problems. However, as required in Sec.  280.43(g), 
groundwater, soil moisture, or rainfall must not render the testing or 
sampling method inoperative so that a release could go undetected for 
more than 30 days. Finally, regulated substance in the interstitial 
space poses safety concerns and can also affect testing and sampling 
methods. For safety reasons, owners and operators must ensure the 
method of interstitial monitoring continues to operate and should 
always remove any regulated substance from the interstitial area.
     Require owners and operators of UST systems with secondary 
containment using interstitial monitoring follow integrity test 
requirements (proposed in section B-4) to confirm a suspected release 
and clarify actions UST owners and operators must take if a test 
confirms a leak or indicates a release exists
    [cir] Requiring UST owners and operators to follow integrity test 
requirements of the interstitial area will ensure both inner and outer 
walls are checked when investigating a suspected release. EPA also is 
taking the position that it is important to clarify actions UST owners 
and operators must take if a test confirms a leak or indicates a 
release exists. If a leak is confirmed, UST owners and operators must 
correct or address the problem. In addition to options listed in the 
1988 UST regulation, EPA is proposing to include closure as another 
option. Nothing in this proposal changes the requirement in subpart F 
for UST owners and operators to take corrective action if a release 
occurred.

What issues related to this change does EPA request comment or 
additional data on?

    EPA did not identify specific issues for comment.

E. General Updates

1. Incorporate Newer Technologies

What is EPA proposing?

    EPA is proposing to include technologies developed since issuing 
the 1988 UST regulation and clarify the use of those technologies. EPA 
is proposing these changes:
     Tanks--revise steel-fiberglass-reinforced-plastic 
composite in Sec.  280.20(a)(3) to steel tank clad or jacketed with a 
non-corrodible material. UST owners and operators will be able to use 
jacketed tanks to meet EPA's proposed requirement for secondary 
containment and interstitial monitoring described in section A-2.
     Piping--revise fiberglass-reinforced plastic in Sec.  
280.20(b)(1) to non-corrodible material. This will allow UST owners and 
operators to install other piping, such as flexible plastic, that does 
not corrode.
     Release detection--add two release detection options: 
Continuous in-tank leak detection (CITLD) and statistical inventory 
reconciliation (SIR). UST owners and operators will be able to use 
these additional options to meet release detection requirements in 
Sec.  280.40, as long as the methods meet the following:
    [cir] CITLD--automatic tank gauge operating on an uninterrupted 
basis or operating within a process that allows the system to gather 
incremental measurements to determine the leak status of the tank at 
least once every 30 days.
    [cir] SIR--quantitative analysis with a calculated leak rate 
capable of detecting a 0.2 gallon per hour leak rate within 30 days 
with a probability of detection of 0.95 and a probability of false 
alarm of 0.05 is required, based on a threshold that does not exceed 
one-half the minimum leak rate.
    EPA is proposing to list three additional continuous interstitial 
monitoring methods in Sec.  280.43(g): Liquid-filled, pressure, and 
vacuum interstitial monitoring. These methods must be capable of 
detecting a breach in both the inner and outer walls of the tank and 
piping.

Why is EPA proposing this change? What background information is 
available about this change?

    Since EPA promulgated the 1988 UST regulation, newer tank, piping, 
and release detection technologies have been developed and are being 
used. EPA is proposing this change to acknowledge newer UST related 
technologies and clarify the use of these technologies.
Clad and Jacketed Tanks
    The 1988 UST regulation allows these tank technologies: Coated and 
cathodically protected steel; fiberglass reinforced plastic; steel-
fiberglass-reinforced-plastic composite; and metal without additional 
corrosion protection, provided that a corrosion expert determines the 
site is not corrosive enough to cause a release from corrosion during 
the tank's life. The 1988 regulation also allows use of other tank 
technologies that implementing agencies determine are no less 
protective of human health and the environment than those listed above. 
Additional non-corrodible materials are now used as claddings for steel 
tanks, and they are as effective at preventing corrosion as 
technologies in the 1988 regulation. EPA considers a cladding to be a 
non-corrosive dielectric material, bonded to the steel tank with 
sufficient durability to prevent corrosion during the tank's life. EPA 
did not include jacketed tanks in the 1988 regulation, even though they 
are no less protective of human health and the environment than 
technologies listed in the regulation. EPA considers jacketed to be a 
non-corrosive dielectric material that: Is constructed as secondary 
containment (jacketed) around a steel tank; has sufficient durability 
to prevent corrosion during the tank's life; and prevents a regulated 
substance released from the primary steel tank wall from reaching the 
environment. EPA estimates 10 percent of regulated tanks today are 
jacketed with a non-corrodible material and 18 percent are clad with a 
non-corrodible material.\68\
---------------------------------------------------------------------------

    \68\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

Non-Corrodible Piping
    The 1988 UST regulation allows fiberglass-reinforced plastic piping 
as a non-corrodible piping option, as well as other piping technologies 
that implementing agencies determine are no less protective of human 
health and the environment than those in the

[[Page 71745]]

regulation. Non-corrodible piping not made of fiberglass-reinforced 
plastic (in particular, flexible plastic piping) was installed 
beginning in the 1990s and has evolved over the past 20 years. Flexible 
plastic piping is made of various 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.\69\ Revising 
fiberglass-reinforced piping to non-corrodible piping will allow UST 
owners and operators to install other types of non-corrodible piping, 
such as flexible plastic, without requiring implementing agencies to 
make a determination.
---------------------------------------------------------------------------

    \69\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical And Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

Release Detection Technologies
    The 1988 UST regulation allows UST owners and operators to use 
other methods that meet release detection performance criteria listed 
at Sec.  280.43(h). Although CITLD and SIR are allowed under Sec.  
280.43(h), it is important to specify both by name.
CITLD
    The 1988 UST regulation allows ATG systems as a recognized method 
of release detection. However, it is generally listed with performance 
requirements consistent with the method being used to perform a static 
test. ATG relies on system down time, absent product delivery or 
dispensing activities. In static testing mode, the ATG system analyzes 
product level and determines whether or not a leak is present during 
that down time. Yet for years, UST owners and operators used ATG 
systems as a means of continually monitoring tanks for potential 
releases. Continuous in-tank leak detection has evolved as a reliable 
means of providing release detection equivalent to other methods 
specified in Sec.  280.41. Within this category of methods, EPA will 
also allow continuous in-tank methods where the system incrementally 
gathers measurements to determine the tank's leak status within the 30-
day monitoring period. Today's proposal formally recognizes CITLD as a 
release detection method in 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. UST owners and operators may perform 
an in-tank static test using the ATG system or another method in 
subpart D.
SIR
    Today's proposal adds SIR by name to the final UST regulation and 
clarifies its use. SIR must:
     Report a quantitative result with calculated leak rate;
     Be capable of detecting a leak rate of at least 0.2 gallon 
per hour with a probability of detection of not less than 0.95 and a 
probability of false alarm of no greater than 0.05; and
     Use a threshold that does not exceed one-half the minimum 
detectable leak rate.
    A quantitative result with a calculated leak rate is necessary to 
effectively perform release detection using SIR. Some SIR methods are 
qualitative based methods that simply provide a result of pass or fail 
without any additional information for UST owners and operators to 
gauge the validity of the reported results. Based on information in 
NWGLDE's list,\70\ approximately 15 percent of SIR methods listed are 
qualitative-based methods. Many state UST implementing agencies already 
only allow the use of quantitative methods. Today's proposal will no 
longer allow qualitative SIR as an option for meeting the release 
detection requirement.
---------------------------------------------------------------------------

    \70\ National Work Group On Leak Detection Evaluation's (NWGLDE) 
List Of Leak Detection Evaluations for Storage Tank Systems: http://www.nwglde.org/.
---------------------------------------------------------------------------

    Consistent with some of the release detection methods described in 
Sec.  280.43(h), EPA maintained the performance standard of 0.2 gallon 
per hour with a probability of detection of 0.95 and a probability of 
false alarm of 0.05. However, we are not requiring the additional 
standard of 150 gallons within a month per Sec.  280.43(h). EPA 
included this additional standard in the 1988 UST regulation to 
primarily address external methods. EPA added the standard because it 
is more difficult to demonstrate that external methods meet a small 
hourly leak rate than a larger, though equivalent, volume. SIR is an 
in-tank monitoring method and the 0.2 gallon per hour standard with a 
probability of detection (Pd) of 0.95 and a probability of false alarm 
(Pfa) of 0.05 is the applicable standard to use.
    SIR must also meet EPA's established requirement for probability of 
detection and probability of false alarm. In a normal probability 
distribution, SIR data typically analyzed through the calculation of 
the reportable values of minimum detectable leak rate (MDL) and the 
leak declaration threshold (T) are related as follows:
     MDL is always greater than T
     Pd = (1-Pfa), then MDL = 2 times T (i.e., T = \1/2\ MDL).
    Any analysis of data indicating a threshold value greater than one-
half minimum detectable leak rate should be appropriately investigated 
as a suspected release.
    In this proposal, EPA is addressing the following issues associated 
with using SIR:
     SIR is not the same as inventory control
    [cir] For years, users, vendors, and regulators incorrectly linked 
SIR to the inventory control method described 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. Note Sec.  280.50(c)(2) states, ``In the case of 
inventory control, a second month of data does not confirm the initial 
result.'' This language allowed owners and operators to use a second 
month of inventory control data to confirm initial possible failure 
results. However, this allowance does not apply to SIR.
     Results for release detection, including SIR, are required 
within the 30-day monitoring period
    [cir] EPA considered including a requirement that UST owners and 
operators obtain a record of SIR results within 30 days. However, we 
believe this requirement is adequately covered in 40 CFR part 280, 
subpart D of the 1988 UST regulation. As Sec.  280.41 states, ``Tanks * 
* * must be monitored for releases at least every 30 days using one of 
the methods listed in Sec.  280.43(d) through (h) * * *''. In today's 
proposal, EPA is adding a subsection to formally recognize SIR. A 
definitive result of pass or fail that identifies the tank's leak 
status is required within the 30-day monitoring period for all release 
detection methods, including SIR.
     Owners and operators must use another method of release 
detection if SIR results are inconclusive results
    [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,\71\ 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

[[Page 71746]]

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 being gathered to generate 
an initial report at startup; or when a report is not available for any 
month of monitoring.
---------------------------------------------------------------------------

    \71\ 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 of time in 
order to determine whether the tank is leaking. In some cases, 
regulatory agencies have addressed significant lag times between when 
data is collected to when a tank status determination is available to 
owners and operators. NWGLDE's list of third-party evaluated methods 
indicates the data collection period required for SIR methods ranges 
from 15 to 90 days. However, most methods require between 23 to 30 days 
to gather sufficient measurements that provide an accurate result. Any 
method that goes beyond a 30-day monitoring period is inconsistent with 
the established requirement and does not protect human health and the 
environment. It is imperative that UST owners and operators determine 
the status of their tanks within the established monitoring period to 
avoid increased risk of contamination.
    [cir] EPA recognizes that a rolling collection of data may be used 
to analyze the leak status of the tank. For example, data from the 
previous 30-day monitoring period may be added to measurements taken 
within the current 30-day monitoring period to determine whether or not 
the tank is leaking. However, the majority of data must come from the 
current 30-day period and another method of release detection must be 
used to monitor the tank during this startup period. Subsequent 
monitoring continuously rolls data forward and provides sufficient data 
in a timely manner to determine pass or fail.
Interstitial Monitoring
    EPA is proposing to add three methods of interstitial monitoring--
vacuum, pressure, and liquid-filled methods--in Sec.  280.43(g)(4). 
Although these interstitial methods are covered under the general 
description provided in Sec.  280.43(g), These methods should be 
included as distinct interstitial monitoring options. Each of these 
methods must be capable of detecting breaches in both the inner and 
outer walls of secondarily contained tanks and secondarily contained 
piping.

What issues related to this change does EPA request comment or 
additional data on?

     Should EPA require specific performance standards for 
vacuum, pressure, and liquid-filled interstitial monitoring? If so, 
what should the performance standards be and why?
     Are there performance standards for release detection 
methods that should be added or removed?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
2. Updates to Codes of Practice Listed in the UST Regulation

What Is EPA Proposing?

    EPA is proposing to update the codes of practice (also called 
standards or recommended practices) listed in the 1988 UST regulation 
to reflect new codes, changes to code names, and new nationally 
recognized associations and independent testing laboratories. EPA 
proposes to update, add, or remove codes of practice to the following 
specific areas of the 1988 UST regulation:
Section 280.11--Interim Prohibition for Deferred UST Systems
    Updated Codes:

--NACE International Recommended Practice RP 0285, Corrosion Control of 
Underground Storage Tank Systems by Cathodic Protection
    Added Codes:

--NACE International Standard Practice SP 0169, Control of External 
Corrosion on Underground or Submerged Metallic Piping Systems
--American Petroleum Institute Recommended Practice 1632, Cathodic 
Protection of Underground Petroleum Storage Tanks and Piping Systems
--Steel Tank Institute Recommended Practice R892, Recommended Practice 
for Corrosion Protection of Underground Piping Networks Associated with 
Liquid Petroleum Storage and Dispensing Systems
Section 280.20(a)(1)--Fiberglass Tanks
    Updated Codes:

--Underwriters Laboratories Standard 1316, Glass-Fiber-Reinforced 
Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and 
Alcohol-Gasoline Mixtures
--Underwriters Laboratories of Canada S615, Standard for Reinforced 
Plastic Underground Tanks for Flammable and Combustible Liquids

    Removed Codes:

--American Society of Testing and Materials Standard D4021-86, Standard 
Specification for Glass-Fiber-Reinforced Polyester Underground 
Petroleum Storage Tanks
Section 280.20(a)(2)--Steel Tanks With Cathodic Protection
    Updated Codes:

--Steel Tank Institute Specification sti-P3[supreg] Specification and 
Manual for External Corrosion Protection of Underground Steel Storage 
Tanks
--Underwriters Laboratories Standard 1746, Standard for External 
Corrosion Protection Systems for Steel Underground Storage Tanks
--Underwriters Laboratories of Canada S603, Standard for Steel 
Underground Tanks for Flammable and Combustible Liquids
--Underwriters Laboratories of Canada S603.1, Standard for External 
Corrosion Protection Systems for Steel Underground Tanks for Flammable 
and Combustible Liquids
--Underwriters Laboratories of Canada S631, Standard for Isolating 
Bushings for Steel Underground Tanks Protected with External Corrosion 
Protection Systems
--NACE International Recommended Practice RP 0285, Corrosion Control of 
Underground Storage Systems by Cathodic Protection
--Underwriters Laboratories Standard 58, Standard for Steel Underground 
Tanks for Flammable and Combustible Liquids

    Added Codes:

--Steel Tank Institute Standard F841, Standard for Dual Wall 
Underground Steel Storage Tanks
Section 280.20(a)(3)--Clad or Jacketed Steel Tanks
    Updated Codes:

--Underwriters Laboratories Standard 1746, Standard for External 
Corrosion Protection Systems for Steel Underground Storage Tanks

    Added Codes:

--Steel Tank Institute Specification F894, ACT-100[supreg] 
Specification for External Corrosion Protection of FRP Composite Steel 
USTs
--Steel Tank Institute Specification F961, ACT-100-U[supreg] 
Specification for External Corrosion Protection of Composite Steel 
Underground Storage Tanks
--Steel Tank Institute Specification F922, Steel Tank Institute 
Specification for Permatank[supreg]

    Removed Codes:

--Association for Composite Tanks ACT-100, Specification for the

[[Page 71747]]

Fabrication of FRP Clad Underground Storage Tanks
Section 280.20(a)(6)--Secondary Containment Tanks (New Addition to the 
Regulation--See Section A-2)
    Added Codes:

--Underwriters Laboratories Standard 58, Standard for Steel Underground 
Tanks for Flammable and Combustible Liquids
--Underwriters Laboratories Standard 1316, Glass-Fiber-Reinforced 
Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and 
Alcohol-Gasoline Mixtures
--Underwriters Laboratories Standard 1746, Standard for External 
Corrosion Protection Systems for Steel Underground Storage Tanks
--Steel Tank Institute Standard F841, Standard for Dual Wall 
Underground Steel Storage Tanks
--Steel Tank Institute Specification F922, Steel Tank Institute 
Specification for Permatank[supreg]
Section 280.20(b)(1)--Non-corrodible Piping
    Updated Codes:

--Underwriters Laboratories Standard 971, Standard for Non-Metallic 
Underground Piping for Flammable Liquids
--Underwriters Laboratories of Canada Standard S660, Standard for Non-
Metallic Underground Piping for Flammable Liquids

    Removed Codes:

--Underwriters Laboratories Standard 567, Pipe Connectors for Flammable 
and Combustible and LP Gas
--Underwriters Laboratories of Canada Standard CAN 4-S633-M81, Flexible 
Underground Hose Connectors
Section 280.20(b)(2)--Steel Piping With Cathodic Protection
    Updated Codes:

--American Petroleum Institute Recommended Practice 1632, Cathodic 
Protection of Underground Petroleum Storage Tanks and Piping Systems
--NACE International Standard Practice SP 0169, Control of External 
Corrosion on Underground or Submerged Metallic Piping Systems

    Added Codes:

--Underwriters Laboratories Subject 971A, Outline of Investigation for 
Metallic Underground Fuel Pipe
--Steel Tank Institute Recommended Practice R892, Recommended Practice 
for Corrosion Protection of Underground Piping Networks Associated with 
Liquid Petroleum Storage and Dispensing Systems
--NACE International Recommended Practice RP 0285, Corrosion Control of 
Underground Storage Systems by Cathodic Protection

    Removed Codes:

--National Fire Protection Association Standard 30, Flammable and 
Combustible Liquids Code
--American Petroleum Institute Publication 1615, Installation of 
Underground Petroleum Storage Systems
Section 280.20(b)(3)--Metal Piping Without Additional Corrosion 
Protection
    Removed Codes:

--National Fire Protection Association Standard 30, Flammable and 
Combustible Liquids Code
--National Association of Corrosion Engineers Standard RP-01-69, 
Control of External Corrosion on Submerged Metallic Piping Systems
Section 280.20(b)(5)--Secondary Containment Piping (New Addition to the 
Regulation--See Section A-2)
    Added Codes:

--Underwriters Laboratories Standard 971, Standard for Non-Metallic 
Underground Piping for Flammable Liquids
--Underwriters Laboratories Subject 971A, Outline of Investigation for 
Metallic Underground Fuel Pipe
Section 280.20(d)--Installation
    Updated Codes:

--American Petroleum Institute Publication 1615, Installation of 
Underground Petroleum Storage System
--Petroleum Equipment Institute Publication RP100, Recommended 
Practices for Installation of Underground Liquid Storage Systems

    Added Codes:

--National Fire Protection Association Standard 30, Flammable and 
Combustible Liquids Code
--National Fire Protection Association Standard 30A, Code for Motor 
Fuel Dispensing Facilities and Repair Garages
    Removed Codes:

--American National Standards Institute Standard B31.3, Petroleum 
Refinery Piping
--American National Standards Institute Standard B31.4, Liquid 
Petroleum Transportation Piping System
Section 280.21--Lining Inspection Standards (New Addition to the 
Regulation--See Section E-3)
    Added Codes:

--American Petroleum Institute Recommended Practice 1631, Interior 
Lining and Periodic Inspection of Underground Storage Tanks
--National Leak Prevention Association Standard 631, Entry, Cleaning, 
Interior Inspection, Repair, and Lining of Underground Storage Tanks
--Ken Wilcox Associates Recommended Practice, Recommended Practice for 
Inspecting Buried Lined Steel Tanks Using a Video Camera
Section 280.21(e)--Upgrade Requirements for Previously Deferred UST 
Systems (New Addition to the Regulation--See Section C)
    Added Codes:

--NACE International Recommended Practice RP 0285, Control of 
Underground Storage Tank Systems by Cathodic Protection
--NACE International Standard Practice SP 0169, Control of External 
Corrosion on Underground or Submerged Metallic Piping Systems
--National Leak Prevention Association Standard 631, Entry, Cleaning, 
Interior Inspection, Repair, and Lining of Underground Storage Tanks
--American Society for Testing and Materials Standard G158, Standard 
Guide for Three Methods of Assessing Buried Steel Tanks
Section 280.30--Spill and Overfill Control
    Updated Codes:

--National Fire Protection Association Standard 385, Standard for Tank 
Vehicles for Flammable and Combustible Liquids
--American Petroleum Institute Recommended Practice 1621, Bulk Liquid 
Stock Control at Retail Outlets

    Added Codes:

--American Petroleum Institute Recommended Practice 1007, Loading and 
Unloading of MC 306/DOT 406 Cargo Tank Motor Vehicles

    Removed Codes:

--National Fire Protection Association Standard 30, Flammable and 
Combustible Liquids Code
Section 280.31--Operation and Maintenance of Corrosion Protection
    Updated Codes:

--NACE International Recommended Practice RP 0285, Control of 
Underground Storage Tank Systems by Cathodic Protection

    Added Codes:

--NACE International Standard Practice SP 0169, Control of External 
Corrosion on Underground or Submerged Metallic Piping Systems
--NACE International Test Method TM 0101, Measurement Techniques

[[Page 71748]]

Related to Criteria for Cathodic Protection on Underground or Submerged 
Metallic Tank Systems
--NACE International Test Method TM0497, Measurement Techniques Related 
to Criteria for Cathodic Protection on Underground or Submerged 
Metallic Piping Systems
--Steel Tank Institute Recommended Practice R051, Cathodic Protection 
Testing Procedures for sti-P3 USTs
Section 280.32--Compatibility
    Removed Codes:

--American Petroleum Institute Publication 1626, Storing and Handling 
Ethanol and Gasoline-Ethanol Blends at Distribution Terminals and 
Service Stations
--American Petroleum Institute Publication 1627, Storage and Handling 
of Gasoline-Methanol/Cosolvent Blends at Distribution Terminals and 
Service Stations
Section 280.33--Repairs
    Updated Codes:

--National Fire Protection Association Standard 30, Flammable and 
Combustible Liquids Code
--American Petroleum Institute Recommended Practice RP 2200, Repairing 
Crude Oil, Liquified Petroleum Gas, and Product Pipelines
--American Petroleum Institute Recommended Practice RP 1631, Interior 
Lining and Periodic Inspection of Underground Storage Tanks
--National Leak Prevention Association Standard 631, Entry, Cleaning, 
Interior Inspection, Repair, and Lining of Underground Storage Tanks

    Added Codes:

--National Fire Protection Association Standard 326, Safeguarding of 
Tanks and Containers for Entry, Cleaning, or Repair
--Steel Tank Institute Recommended Practice R972, Recommended Practice 
for the Addition of Supplemental Anodes to sti-P3[supreg] Tanks
--NACE International Recommended Practice RP 0285, Control of 
Underground Storage Tank Systems by Cathodic Protection
--Fiberglass Tank and Pipe Institute Recommended Practice T-95-02, 
Remanufacturing of Fiberglass Reinforced Plastic (FRP) Underground 
Storage Tanks
Section 280.36--Secondary Containment Testing (New Addition to the 
Regulation--See Section B-4)
    Added Codes:

--Steel Tank Institute Recommended Practice R012, Recommended Practice 
for Interstitial Tightness Testing of Existing Underground Double Wall 
Steel Tanks
--Fiberglass Tank and Pipe Institute Protocol, Field Test Protocol for 
Testing the Annular Space of Installed Underground Fiberglass Double 
and Triple-Wall Tanks with Dry Annular Space
Section 280.37--Walkthrough Inspections (New Addition to the 
Regulation--See Section B-1)
    Added Codes:

--Petroleum Equipment Institute Recommended Practice RP 900, 
Recommended Practices for the Inspection and Maintenance of UST Systems
Section 280.43(a)--Inventory Control
    Updated Codes:

--American Petroleum Institute Recommended Practice RP 1621, Bulk 
Liquid Stock Control at Retail Outlets
Section 280.43(g)--Interstitial Monitoring
    Removed Codes:

--Steel Tank Institute Standard F841, Standard for Dual Wall 
Underground Steel Storage Tanks (moved to new section 280.20(a)(6))
Section 280.71--Permanent Closure
    Updated Codes:

--American Petroleum Institute Recommended Practice RP 1604, Closure of 
Underground Petroleum Storage Tanks
--American Petroleum Institute Recommended Practice RP 1631, Interior 
Lining and Periodic Inspection of Underground Storage Tanks
--The National Institute for Occupational Safety and Health Publication 
80-106, Criteria for a Recommended Standard * * * Working in Confined 
Space

    Added Codes:

--American Petroleum Institute Recommended Practice 2016, Guidelines 
and Procedures for Entering and Cleaning Petroleum Storage Tanks
--National Fire Protection Association Standard 326, Safeguarding of 
Tanks and Containers for Entry, Cleaning, or Repair

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing this change to update the codes of practice 
associated with regulated UST systems. The 1988 UST regulation relies 
heavily on codes of practice developed by nationally recognized 
associations or independent testing laboratories.
    EPA reviewed information on more than 200 codes of practice from 
more than 25 code-making groups that have been developed or revised 
since the 1988 regulation.\72\ As a result of this review, EPA proposes 
to add 18 codes of practice not previously listed in the 1988 
regulation, remove or move 12, and update all codes of practice in the 
1988 UST regulation (see the specific additions, updates, and removals 
listed above). EPA is proposing to add the 18 codes of practice that 
were previously not listed because they are applicable to the UST 
regulation and did not exist when EPA originally promulgated the 1988 
UST regulation. EPA is proposing to remove or move the 12 codes of 
practice in the 1988 UST regulation for one of the following reasons:
---------------------------------------------------------------------------

    \72\ E2, Incorporated, memoranda and analyses submitted under 
Contract EP-W-05-018, ``U.S. Environmental Protection Agency. 
Underground Storage Tanks/Leaking Underground Storage Tanks 
Analytical and Technical Support.'' These supporting materials can 
be found in the docket for the proposed rulemaking.
---------------------------------------------------------------------------

     The code of practice is out of date, no longer available, 
was withdrawn, or rescinded;
     The code of practice did not provide any information 
appropriate to the section of the regulation where it was referenced;
     The information in the code of practice did not adequately 
address the part of the regulation where it was referenced; or
     The code of practice is no longer needed.
    For example, the Association for Composite Tanks ACT-100 tank 
standard was listed in Sec.  280.20(a)(3) as a code of practice for 
meeting the clad tank requirement. EPA is removing this code of 
practice because both the association and code of practice no longer 
exist.
    In several cases, EPA is proposing to move a code of practice from 
one section of the 1988 UST regulation to another section. For example, 
EPA is proposing to move Steel Tank Institute Standard F841, Standard 
for Dual Wall Underground Steel Storage Tanks from Sec.  280.43(g)--
interstitial monitoring to Sec.  280.20(a)(6)--secondary containment 
tanks. EPA is proposing this because we are adding secondary 
containment requirements to the performance standards for new UST 
systems portion of this proposed UST regulation.

    Note: EPA is aware of at least one code of practice (Petroleum 
Equipment Institute standard for testing of spill, overfill, 
interstitial areas, and release detection)

[[Page 71749]]

currently being developed that could be potentially relevant to this 
proposed UST regulation. Other standards may be developed before EPA 
publishes a final UST regulation. If so, EPA will consider including 
them in the final UST regulation.

What issues related to this change does EPA request comment or 
additional data on?

     Should other codes of practice be added to or removed from 
the UST regulation? If so, please provide EPA with information about 
the code and the specific location in the UST regulation where the code 
should be included or removed.
     The regulations at Sec.  280.20(d) require that all tanks 
and piping be properly installed in accordance with a code of practice 
developed by a nationally recognized association or independent testing 
laboratory and in accordance with manufacturer's instructions. Since 
the installation codes of practice also address other UST system 
components such as spill and overfill, should EPA consider revising 
Sec.  280.20(d) such that all portions of the UST system must be 
installed according to a code of practice and according to 
manufacturer's instructions?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
3. Updates to Remove Old Upgrade and Implementation Deadlines

What is EPA proposing?

    EPA is proposing to revise the UST regulation to remove references 
to the 1998 deadline and old phase-in schedules, while continuing to 
allow testing of corrosion protection and release detection. For those 
deferred UST systems EPA is proposing to regulate, we are proposing 
those systems be allowed to upgrade with spill, overfill, and corrosion 
protection. EPA is proposing the following specific revisions:
    Revise upgrading of existing UST systems in the 1988 UST regulation 
(Sec.  280.21).
     Remove the 1998 upgrade deadline references, but continue 
to allow:
    [cir] Testing of internally-lined USTs;
    [cir] Tanks and piping with cathodic protection; and
    [cir] Upgrades of deferred UST systems EPA is proposing to 
regulate, including wastewater treatment tank systems, airport hydrant 
systems, UST systems with field-constructed tanks, and UST systems that 
store fuel solely for use by emergency power generators. See section C 
for additional information on deferred UST systems.
     Require UST systems not upgraded with corrosion 
protection, spill, or overfill prevention be permanently closed 
according to subpart G, unless the implementing agency determines an 
upgrade is appropriate or the UST system was deferred in the 1988 UST 
regulation.
    Revise release detection requirements in the 1988 UST regulation.
     Section 280.40
    [cir] Remove phase-in schedule for release detection probabilities;
    [cir] Remove phase-in schedule for release detection monitoring;
    [cir] Remove references to upgrade deadlines;
    [cir] Remove references to existing USTs; and
    [cir] Address deferred UST systems EPA is proposing to regulate, 
add language about implementing release detection monitoring for these 
systems in Sec.  280.40(c).
     Section 280.41
    [cir] Remove inventory control and annual tightness testing as a 
regulatory option;
    [cir] Remove reference to upgrade deadlines; and
    [cir] Make the inventory control and five year tightness testing 
language historical by putting language in this section in the past 
tense.
     Section 280.42
    [cir] Remove 1998 references and upgrade language for existing 
hazardous substance UST systems.
    EPA is proposing to remove the phase-in schedule in Sec.  280.91 of 
subpart H to acknowledge that financial responsibility implementation 
deadlines are passed and remove references to Sec.  280.91 and the 
deadlines in Sec.  280.90. In addition, EPA is proposing to revise 
Sec.  280.91 to reference the phase-in schedule for deferred UST 
systems EPA is proposing to regulate at Sec.  280.10.

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing these changes to acknowledge that the 1998 
deadline for upgrading UST systems with release prevention and the 
1990s release detection and financial responsibility deadlines passed 
more than a decade ago. Owners and operators had more than two decades 
to upgrade their UST systems and meet the 1988 UST regulation. In 
addition, all UST facilities have been inspected at least once and are 
required to meet release detection, release prevention, and financial 
responsibility requirements. EPA is proposing owners and operators of 
upgraded UST systems continue conducting cathodic protection and 
internal lining testing consistent with how they previously performed 
these tests.
    For release detection, EPA is proposing to eliminate the phase-in 
for both release detection probabilities and release detection 
monitoring. EPA is proposing to eliminate these two phase-in parts 
because the deadlines for implementing these requirements have passed. 
Owners and operators have been implementing these requirements for more 
than two decades. The last phase-in period applied to systems installed 
between 1980 and 1988, giving owners and operators until 1993 to meet 
the subpart D requirements. Any new UST installed after 1993 had to 
meet release detection requirements when installed.
    To meet the release detection requirement, Sec.  280.41 allows 
owners and operators of USTs less than 10 years old to use a 
combination of monthly inventory control with tank tightness testing 
every five years, until the UST has been installed for 10 years. When 
the UST is 10 years old, owners and operators must use another release 
detection method listed in subpart D. For new and replaced UST systems 
installed after the effective date of the final UST regulation, 
interstitial monitoring will be required. The new interstitial 
monitoring requirement will make inventory control and tank tightness 
testing obsolete as a release detection method 10 years after the UST 
regulation is finalized.
    For hazardous substance UST systems release detection, EPA is 
proposing to remove 1998 deadline and upgrade references. The 1988 UST 
regulation in Sec.  280.41 required existing UST systems meet the 
requirements for petroleum UST systems until 1998. After 1998, all new 
and existing hazardous substance UST systems must meet requirements for 
new hazardous substance UST systems. Since the 1998 deadline has 
passed, these changes will clarify the hazardous substance UST system 
requirements.
    For financial responsibility, EPA is proposing to remove the phase-
in dates in Sec.  280.91. These phase-in dates passed more than a 
decade ago and are no longer needed. In addition, Sec.  280.90(b) and 
(e) contain references to Sec.  280.91 and compliance dates that need 
to be removed.
    UST systems with field constructed tanks, airport hydrant systems, 
and wastewater treatment tank systems may be upgraded according to 
Sec.  280.21. However, EPA is proposing to no longer allow UST systems 
regulated under the 1988 UST regulation to be upgraded if they have 
never met the upgrade requirements. Unless the implementing

[[Page 71750]]

agency determines that an UST system is acceptable to upgrade, non-
upgraded UST systems must be permanently closed according to the 
closure requirements in subpart G. UST systems that have not been 
upgraded are older and have been in the ground for more than two 
decades. In addition, metal USTs and piping without corrosion 
protection pose a significant risk to human health and the environment 
because the metal in contact with soil corrodes. EPA is proposing that 
implementing agencies make case-by-case determinations on when to allow 
upgrades. EPA does not expect implementing agencies to allow continued 
use of USTs or piping not upgraded with corrosion protection. However, 
some implementing agencies may decide to allow owners and operators of 
UST systems with corrosion protection, but without spill or overfill 
prevention, to add spill or overfill prevention instead of requiring 
permanent closure.
    The proposed requirements in Sec.  280.21 will allow UST systems 
EPA is proposing to no longer defer to be upgraded. See section C for 
additional information on upgrading these UST systems.

What issues related to this change does EPA request comment or 
additional data on?

     Does removing the deadlines and making upgrades historical 
cause any unintended regulatory consequences?
     Should EPA consider not allowing the implementing agency 
the flexibility of making a determination to allow an upgrade?
    Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.
4. Editorial and Technical Corrections

What is EPA proposing?

    EPA is proposing these editorial corrections to the 1988 UST 
regulation:
     Where ``industry codes'' and ``codes and standards'' are 
used, replace with ``codes of practice''
     Revise to appropriately use the terms: part, subpart, 
section, and paragraph
     Section 280.10(c)(3)--change ``10 CFR part 50 Appendix A'' 
to ``10 CFR part 50''
     Section 280.20(a)(2), paragraph (C) in the note--change 
``G03.1'' to ``603.1''
     Section 280.21(b)(2)(iii)--change ``by conducting two (2) 
tightness tests that meet the requirements of Sec.  280.43(c). The 
first tightness test must be conducted prior to installing the cathodic 
protection system. The second tightness test must be conducted between 
three (3) and six (6) months following the first operation of the 
cathodic protection system; or'' to ``by conducting two tightness tests 
that meet the requirements of Sec.  280.43(c). The first tightness test 
must be conducted prior to installing the cathodic protection system. 
The second tightness test must be conducted between three and six 
months following the first operation of the cathodic protection system; 
or''
     Section 280.20(c)(1)(ii)(C)--change ``operator'' to 
``transfer operator''
     Section 280.22(a)--change ``Any owner who brings an 
underground storage tank system into use after May 8, 1986, must within 
30 days of bringing such tank into use, submit, in the form prescribed 
in Appendix I of this part, a notice of existence of such tank system 
to the state or local agency or department designated in Appendix II of 
this part to receive such notice.'' to ``After May 8, 1986, an owner 
must submit notice of a tank system's existence to the implementing 
agency within 30 days of bringing the underground storage tank system 
into use. Owners must use the form in Appendix I of this part.''
     Section 280.22(g)--change ``The form provided in Appendix 
III of this part may be used to comply with this requirement.'' to 
``The statement provided in Appendix III of this part, when used on 
shipping tickets and invoices, may be used to comply with this 
requirement.''
     Section 280.31--change ``for as long as the UST system is 
used to store regulated substances'' to ``until the UST system is 
permanently closed or undergoes a change-in-service pursuant to Sec.  
280.71.''
     Section 280.31--change ``steel'' to ``metal''
     Section 280.33(c)--change ``fiberglass pipes'' to ``non-
corrodible pipes''
     Section 280.33(g)--change ``for the remaining operating 
life of the UST system'' to ``until the UST system is permanently 
closed or undergoes a change-in-service pursuant to Sec.  280.71.''
     Section 280.34--change ``Resource Conservation and 
Recovery Act'' to ``Solid Waste Disposal Act''
     Section 280.34(b)(2)--change cite from ``280.31'' to 
``280.31(d)''
     Section 280.40(a)(3)--change ``probability of detection 
(Pd) of 0.95 and probability of false alarm (Pfa) of 0.05.'' to 
``probability of detection of 0.95 and probability of false alarm of 
0.05.''
     Section 280.41(b)(2)--change ``conduct'' to ``conducted''
     Section 280.42(a)(1)(ii)--change ``released from the tank 
system'' to ``leaked from the primary containment''
     Section 280.42(d)--delete ``jacketing of'' from ``* * * 
jacketing of double-walled pipe)* * *''
     Section 280.43(b)(4)--change ``leak'' to ``release''
     Section 280.43(b)(5)--delete ``manual'' from ``manual 
inventory control''
     Section 280.52(a)(1)--change ``repair, replace, or upgrade 
the UST system'' to ``repair, replace, upgrade, or close the UST 
system''
     Section 280.52(a)(1)--change ``leak'' to ``release''
     Section 280.52(a)(2)--change ``leak'' to ``release''
     Section 280.52(a)(3)--change ``leak'' to ``release''
     Section 280.92--definition for provider of financial 
assurance--change ``Sec. Sec.  280.95-280.103'' to ``Sec. Sec.  280.95-
280.107''
     Section 280.92, Sec.  280.95(b)(1)(iii), Sec.  
280.95(c)(5), and Sec.  280.95(d)--change ``Rural Electrification 
Administration'' to ``Rural Utilities Service''
     Section 280.94(a)(1)--change ``Sec. Sec.  280.95-280.103'' 
to ``Sec. Sec.  280.95-280.107''
     Section 280.95(b)(1)(ii)--change ``165.145'' to ``Sec.  
265.145''
     Section 280.95(c)(5)(i)--change ``form'' to ``from''
     Section 280.95(d)--change ``[insert: ``suddent accidential 
releases'' and/or ``nonsudden accidential releases]'' to ``[insert: 
``sudden accidental releases'' or ``nonsudden accidental releases'' or 
``accidental releases'']''
     Section 280.95(d)--change ``Liabilitly'' to ``Liability'' 
under Letter From Chief Financial Officer
     Section 280.95(d)--change ``lastest'' to ``latest'' under 
Letter From Chief Financial Officer, Alternative I, Number 11
     Section 280.95(d)--remove ``$'' symbol for Number 8 under 
Alternative II of the Letter From Chief Financial Officer
     Section 280.95(d)--add ``$'' symbol for Numbers 13 and 14 
under Alternative II of the Letter From Chief Financial Officer
     Section 280.96(b)--change ``Sec.  280.110(c)'' to ``Sec.  
280.114(e)''
     Section 280.96(c), Guarantee (Recital 3)--change three 
``40 CFR 280.108'' citations to ``40 CFR Sec.  280.112''
     Section 280.96(c), Guarantee (Recital 3)--change 
``accidential'' to ``accidental''
     Section 280.96(d)--change ``280.108'' to ``Sec.  280.112''
     Section 280.97(a)--change ``Sec.  290.93'' to ``Sec.  
280.93''

[[Page 71751]]

     Section 280.98(b)--change ``Resource Conservation and 
Recovery Act (RCRA)'' to Solid Waste Disposal Act''
     Section 280.98(b), Performance Bond, paragraph 4,--change 
``[* * * either ``sudden'' or ``nonsudden'' or ``sudden and 
nonsudden''] accidental releases arising from'' to ``either ``sudden 
accidental releases'' or ``nonsudden accidental releases'' or 
``accidental releases''] arising from * * *''
     Section 280.98(b)--change two ``40 CFR 280.108'' citations 
to ``40 CFR 280.112''
     Section 280.98(b)--add end brackets to ``State of 
Incorporation'' and ``Liability Limit''
     Section 280.98(d)--change ``40 CFR 280.108'' citation to 
``40 CFR 280.112''
     Section 280.99(b)--change ``Resource Conservation and 
Recovery Act of 1976'' to Solid Waste Disposal Act''
     Section 280.99(b)--change ``persuant'' to ``pursuant''
     Section 280.99(b)--change ``curent'' to ``current''
     Section 280.99(c)--change ``40 CFR 280.108'' citation to 
``40 CFR 280.112''
     Section 280.101(d)--change ``280.107(b)(5)'' to ``Sec.  
280.111(b)(8)''
     Section 280.103(b)(1), Trust Agreement, paragraph 2--
change ``standpoint'' to ``[insert ``standby'' where trust agreement is 
standby trust agreement]''
     Section 280.103(b)(1), Trust Agreement, section 4--add 
opening quotation mark for ``Third-Party Liability Claims''
     Section 280.103(b)(1), Trust Agreement, section 4--add 
opening quotation mark for ``compensating third parties for bodily 
injury and property damage caused by''
     Section 280.104(b)--change ``Moody's rating of Aaa, A, A'' 
to ``Moody's rating of Aaa, Aa, A''
     Section 280.104(b)--change ``refunded issues and'' to 
``refunded issues, and''
     Section 280.104(e), Letter From Chief Financial Officer--
change ``[insert: ``sudden accidental releases'' and/or ``nonsudden 
accidental releases'']'' to ``[insert: ``sudden accidental releases'' 
or ``nonsudden accidental releases'' or ``accidental releases'']''. 
Note that this change occurs in two places in the letter.
     Section 280.104(e), Letter From Chief Financial Officer, 
last paragraph--change ``not backed by third-party credit enhancement 
or are insured by a municipal bond insurance company.'' to ``not backed 
by third-party credit enhancement or insured by a municipal bond 
insurance company.''
     Section 280.105(c)--change ``[insert: ``sudden accidental 
releases'' and/or ``nonsudden accidental releases'']'' to ``[insert: 
``sudden accidental releases'' or ``nonsudden accidental releases'' or 
``accidental releases'']''
     Section 280.105(c)--change 10(a) and 11(a) under Worksheet 
for Municipal Financial Test, Part II from ``Debt Service (from 4d)'' 
to ``Debt Service (from 4c)''
     Section 280.106(a)(1)--change ``Sec.  280.104(c)'' to 
``Sec.  280.104(d) and Sec.  280.104(e)''
     Section 280.106(b)--change ``Sec.  280.114(c)'' to ``Sec.  
280.114(e)''
     Section 280.106(d), under Local Government Guarantee With 
Standby Trust Made by a State, recital 7d--change ``loaded'' to 
``loaned''
     Section 280.106(e), under Local Government Guarantee 
Without Standby Trust Made by a State, recital 7d--change ``loaded'' to 
``loaned''
     Section 280.106(e), under Local Government Guarantee 
Without Standby Trust Made by a Local Government, recital 8d--change 
``loaded'' to ``loaned''
     Section 280.107(d)--change ``[insert: ``sudden accidental 
releases'' and/or ``nonsudden accidental releases'']'' to ``[insert: 
``sudden accidental releases'' or ``nonsudden accidental releases'' or 
``accidental releases'']''
     Section 280.107(d), third paragraph under Letter From 
Chief Financial Officer--change ``ten'' to ``five''
     Section 280.109(b)(3)--change ``Sec.  280.107(b)'' to 
``Sec.  280.111(b)''
     Section 280.111(b)(9)(ii)--change ``Sec.  280.107(a)(3)'' 
to ``Sec.  280.107(c)''
     Section 280.111(b)(9)(iii)--change ``Sec.  280.107(a)(3)'' 
to ``Sec.  280.107(c)''
     Section 280.111(b)(9)(iii)--change ``Sec.  
280.107(a)(3)(i)'' to ``Sec.  280.107(c)(1)''
     Section 280.111(b)(9)(iii)--change ``Sec.  
280.107(a)(3)(ii)'' to ``Sec.  280.107(c)(2)''
     Section 280.113--change ``properly'' to ``permanently''

EPA is proposing these technical corrections to the 1988 UST 
regulation:
     Section 280.12--revise exclusion (d) of the definition of 
UST to incorporate a revision in section 9001 of the SWDA as shown 
below
    ``(d) Pipeline facility (including gathering lines):
    (1) Which is regulated under chapter 601 of Title 49, or
    (2) Which is an intrastate pipeline facility regulated under state 
laws as provided in chapter 601 of Title 49,

and which is determined by the Secretary of Transportation to be 
connected to a pipeline or to be operated or intended to be capable of 
operating at pipeline pressure or as an integral part of a pipeline;''
     Section 280.43(b)(1)--replace ``a period of at least 36 
hours'' with ``the minimum duration of test in the table below''; this 
updates current UST capacity allowances when using manual tank gauging 
as a method of release detection
    [cir] Section 280.43(b)(4)--replace existing table with the one 
below; this ensures information in the table is consistent with the 
change in Sec.  280.43(b)(1)

----------------------------------------------------------------------------------------------------------------
                                       Minimum duration of    Weekly standard (one   Monthly standard (four test
       Nominal tank capacity                  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'').
551-1,000 gallons (when tank         58 hours..............  12 gallons............  6 gallons.
 diameter is 48'').
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).
----------------------------------------------------------------------------------------------------------------

    [cir] Section 280.41(a)(2)--modify tank sizes in text so it is 
consistent with the table above. ``Tanks with capacity of 550 gallons 
or less and tanks with a capacity of 551 to 1000 gallons that meet the 
tank diameter criteria in Sec.  280.43(b) may use manual tank gauging 
(conducted in accordance with Sec.  280.43(b))''; and

[[Page 71752]]

    [cir] Section 280.43(b)(5)--modify tank sizes in text so it is 
consistent with the table above. ``Tanks of 550 gallons or less nominal 
capacity and tanks with a nominal capacity of 551 to 1000 gallons that 
meet the tank diameter criteria in the table in (b)(4) may use this as 
the sole method of release detection. All other tanks with a nominal 
capacity of 551 to 2,000 gallons may use the method in place of manual 
inventory control in 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.''
     Section 280.43--remove the requirement for inventory 
control in the automatic tank gauging release detection method
     Section 280.92--change the definition of accidental 
release from ``release of petroleum from an underground storage tank'' 
to ``release of petroleum arising from operating an underground storage 
tank''
     Section 280.104(h)--add this subsection: ``(h) If the 
local government owner or operator fails to obtain alternate assurance 
within 150 days of finding that it no longer meets the requirements of 
the bond rating test or within 30 days of notification by the Director 
of the implementing agency that it no longer meets the requirements of 
the bond rating test, the owner or operator must notify the Director of 
such failure within 10 days.''
     Revise Appendix III to read: ``Note. A federal law (the 
Solid Waste Disposal Act, as amended, requires owners of certain 
underground storage tanks to notify implementing agencies of the 
existence of their tanks. Notifications must be made within 30 days of 
bringing the tank into use. Consult EPA's regulations at 40 CFR 280.22 
to determine if you are affected by this law.''

Why is EPA proposing this change? What background information is 
available about this change?

    EPA is proposing to make editorial and technical corrections to the 
1988 UST regulation. Proposed editorial corrections include: correcting 
misspellings; capitalizing words; removing unused acronyms; using 
conventional number formatting; and appropriately referring to parts, 
subparts, sections, and paragraphs. In addition, EPA is proposing 
technical corrections which include updating the regulation to 
incorporate statutory changes that occurred since the 1988 regulation 
was promulgated and clarifying long-standing Agency policies.
    The editorial change to Sec.  280.10(c)(3) makes the citation to 
Nuclear Regulatory Commission regulation more general, in the event 
requirements for emergency generator UST systems at nuclear power 
facilities are moved from Appendix A to some other part of the Nuclear 
Regulatory Commission regulation.
    The editorial change to Sec.  280.22(a) makes the language easier 
to understand and consistent with the proposed new paragraphs of Sec.  
280.22(b) and Sec.  280.22(h).
    The editorial change to Sec.  280.20(c)(1)(ii)(C) clarifies that 
the transfer operator needs to be alerted. This change makes the 
language consistent with Sec.  280.20(c)(1)(ii)(B). The editorial 
change to Sec.  280.22(g) clarifies the content of and how to use 
Appendix III of the 1988 UST regulation to meet the notification 
requirement.
    The editorial changes to Sec.  280.31 will eliminate any potential 
confusion with the temporary closure requirement and ensure all metal 
components comply with this section. Temporary closure requires owners 
and operators operate and maintain corrosion protection even when the 
UST system is emptied. The operation and maintenance of corrosion 
section indicates that releases due to corrosion must be prevented as 
long as the UST system is used to store regulated substances. While EPA 
has interpreted that the UST system is used to store regulated 
substances even if it is empty during temporary closure, this proposed 
change will clarify this position. In addition, UST systems have metal 
components, other than steel, protected from corrosion. Changing the 
word steel to metal at the beginning of this section will make it clear 
that the operation and maintenance requirements for corrosion 
protection apply to all metal components.
    The editorial change to Sec.  280.33(g) will clarify when the 
operating life of an UST system ends. EPA does not define an operating 
life; rather, we describe permanent closure and change-in-service. With 
this change, EPA is proposing the operating life of an UST system ends 
when an owner or operator permanently closes the UST system or the UST 
system undergoes a change-in-service from regulated to unregulated.
    EPA is proposing a technical correction to revise the definition of 
UST as it relates to pipeline facilities. This revision directly 
incorporates a change made to Section 9001 of the Solid Waste Disposal 
Act after the 1988 UST regulation was promulgated.
    EPA is proposing a technical correction to clarify that hazardous 
substance USTs must be able to contain regulated substances released 
from the UST system until the substances are detected and removed. 
Based on the 1988 UST regulation definition of release, the statement 
implies that a regulated substance has reached the environment. Because 
a regulated substance should be contained in the UST system's secondary 
containment, EPA is proposing to change the term released to leaked, 
indicating a leak occurred from the primary containment but did not 
reach the environment. Therefore, secondary containment would then 
contain the leak. The editorial change to Sec.  280.42(d) removes 
confusion about whether piping that is already double-walled also needs 
to be jacketed.
    EPA is proposing technical corrections to Sec.  280.43(d) which 
will codify long-standing Agency policies for using manual tank gauging 
and automatic tank gauging. These changes update UST capacity 
allowances when using manual tank gauging and remove the requirement 
for USTs using automatic tank gauging to conduct additional inventory 
control. Since 1990 and 1989, EPA allowed these deviations from the 
1988 UST regulation through policy for manual tank gauging and 
automatic tank gauging, respectively. EPA also stated these allowances 
in our publications: Manual Tank Gauging For Small Underground Storage 
Tanks; Musts For USTs: A Summary of Federal Regulations For Underground 
Storage Tank Systems; and Straight Talk On Tanks: Leak Detection 
Methods For Petroleum Underground Storage Tanks And Piping. With regard 
to manual tank gauging, note the expanded coverage of larger tanks is 
limited in some respects by the diameter of the tank as noted in the 
revised table.
    EPA is proposing to add closure as an option at Sec.  280.52(a)(1) 
to provide owners and operators additional flexibility when suspected 
and confirmed releases occur.
    EPA is proposing an editorial correction of ``leak'' to ``release'' 
in Sec.  280.43(b)(4) and Sec.  280.52(a)(1), (2), and (3) because 
release is defined as regulated substance reaching the environment in 
the 1988 UST regulation.
    EPA is updating references of ``Rural Electrification 
Administration'' (REA) to ``Rural Utilities Services'' (RUS). Under the 
Federal Crop Insurance Reform and Department of Agriculture 
Reorganization Act of 1994, REA reorganized to RUS.
    EPA is proposing to amend the definition of ``accidental release'' 
under Sec.  280.92 so it matches the definition stated in the original 
preamble for the financial responsibility requirements

[[Page 71753]]

(53 FR 43334). EPA intended the definition in the preamble to be 
included in the 1988 UST regulation, but two important words were 
inadvertently omitted. By changing this, EPA is clarifying that owners 
and operators are required to have financial responsibility for 
releases arising from operating USTs (including releases due to filling 
USTs and releases occurring at dispensers).
    The editorial change to Sec.  280.103(b)(1) will correct a 
typographical error [i.e., ``standpoint''] and clarify the trust fund 
language.
    The editorial change to the last paragraph of the Letter to the 
Chief Financial Officer under Sec.  280.104(e) clarifies that no credit 
enhancement of any type is permitted for revenue bonds, consistent with 
the preamble to the 1988 UST regulation (58 FR 9033).
    The editorial addition of Sec.  280.104(h) will make requirements 
for the local government bond rating test under Sec.  280.104 
consistent with requirements of the financial test under Sec.  
280.95(g). EPA included this requirement for private owners and 
operators in the 1988 UST regulation but inadvertently omitted it for 
local government owners and operators.
    The editorial change to the third paragraph of the Letter From 
Chief Financial Officer under Sec.  280.107(d) will make the wording of 
the letter consistent with the amount of coverage required in Sec.  
280.107(b).
    EPA defines and discusses permanent closure, not proper closure, in 
the 1988 UST regulation. This clarified that in Sec.  280.113, 
financial responsibility is required during temporary closure.
    The update to Appendix III removes old dates and clarifies the 
language in the statement for shipping tickets and invoices.

What issues related to this change does EPA request comment or 
additional data on?

     Are there other editorial corrections (such as 
typographical errors or inaccurate references) EPA should make?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.

F. Alternative Options EPA Considered

What options did EPA consider?

    In developing today's proposed regulatory changes (hereafter the 
Preferred Option), EPA considered and evaluated variations of a subset 
of the proposed regulatory requirements using two alternative options 
(hereafter Option 1 and Option 2). The table below highlights 
differences between our Preferred Option and Options 1 and 2. Some of 
the proposed regulatory requirements do not vary across the options 
(for example, notification of ownership changes is required in all 
three). As a result, proposed regulatory changes discussed earlier in 
the preamble, but not listed here, mean those changes are in effect in 
all three options. Overall, Options 1 and 2 consist of regulatory 
changes that are more and less stringent, respectively, than proposed 
changes in the Preferred Option. After reviewing comments, EPA may use 
one or more of these options in whole or in part to establish the final 
UST regulation.

                               Comparison of Preferred Option and Options 1 and 2
----------------------------------------------------------------------------------------------------------------
                                                                        Options
        Proposed requirement         ---------------------------------------------------------------------------
                                             Preferred                    1                         2
----------------------------------------------------------------------------------------------------------------
Walkthrough inspections.............  Monthly................  Monthly................  Quarterly.
Overfill prevention equipment tests.  3 year.................  1 year.................  3 year.
Spill prevention equipment tests....  1 year.................  Require replacement      1 year.
                                                                every 3 years (no
                                                                testing).
Secondary containment tests.........  3 year.................  1 year.................  Not required.
Elimination of flow restrictors in    Required...............  Required...............  No change.
 vent lines for all new tanks and
 when overfill devices are replaced.
Operability tests for release         1 year.................  1 year.................  3 year.
 detection methods.
Change leak rate probabilities from   Not required...........  Required...............  Not required.
 95/5 to 99/1 (Pd/Pfa).
Eliminate groundwater and vapor       5-year phase-out.......  Immediately............  No change.
 monitoring as release detection
 methods.
Remove deferrals for airport hydrant  Regulate under           Require them to meet     Maintain deferrals.
 fuel distribution systems and UST     alternative release      same release detection
 systems with field-constructed        detection requirements.  requirements as
 tanks.                                                         conventional USTs.
----------------------------------------------------------------------------------------------------------------

    Below we explain Options 1 and 2, as well as our rationale for 
each. (Note that EPA conducted a regulatory impact analysis (RIA) for 
all three options. The results are discussed in the RIA document titled 
Assessment Of The Potential Costs, Benefits, And Other Impacts Of The 
Proposed Revisions To EPA's Underground Storage Tank Regulations which 
is available in the docket for this proposed regulation.)

What is EPA's rationale for Option 1?

    In Option 1, EPA considered requiring annual tests of overfill 
prevention equipment and interstitial areas. EPA assessed the costs of 
conducting annual tests for these components and decided instead to 
propose overfill prevention equipment testing and interstitial 
integrity testing every three years. This will reduce the overall 
compliance cost burden on owners and operators without significantly 
compromising benefits of these tests. When compared to other components 
such as spill prevention equipment, both interstitial areas and 
overfill prevention equipment are less likely to fail or be damaged. 
Overfill prevention equipment is in the tank; interstitial areas for 
tanks and piping are typically buried several feet underground. Spill 
prevention equipment encounters frequent human and climate interaction, 
making it prone to frequent damage and failure. Secondary containment 
reduces the likelihood that a release into the environment will occur 
because a leak is contained if a breach of the inner wall occurs. As a 
result, less frequent periodic tests of overfill prevention equipment 
and interstitial areas would adequately ensure the integrity and 
functionality of equipment. In addition, a three year test requirement 
for these two components will match the inspection cycle, allowing 
inspectors to ensure tests are completed. Therefore,

[[Page 71754]]

testing overfill prevention equipment and interstitial areas every 
three years is sufficient.
    In Option 1, EPA considered mandatory replacement of spill 
prevention equipment every three years, regardless of the spill 
prevention equipment's condition. As discussed earlier in the preamble, 
various sources indicated spill prevention equipment is a major source 
of confirmed releases and typically has a short lifespan. After EPA 
evaluated the cost of requiring spill prevention equipment replacement 
every three years, we determined the cost burden of this requirement on 
owners and operators would be significant. While developing today's 
proposal, EPA made a conscious effort to limit removing or replacing 
existing UST system equipment (for example, eliminating the use of ball 
floats as a form of overfill prevention in new tanks instead of 
requiring removal in existing tanks) to minimize impacts on owners and 
operators, both in terms of reducing compliance costs and interrupting 
daily operations. As a result, EPA instead is proposing annual tests of 
spill prevention equipment. This balances the benefits of properly 
functioning spill prevention equipment with the potential costs imposed 
on owners and operators.
    When considering changes to existing release detection 
requirements, EPA evaluated the possibility of modifying the leak 
probability of detection (Pd) from 95 percent to 99 percent and the 
leak probability of false alarm (Pfa) from 5 percent to 1 percent. EPA 
initially believed increasing the Pd rate for release detection 
equipment performance would be a relatively low cost action that would 
significantly increase identifying potential releases to the 
environment. EPA also believed that decreasing the Pfa rate would be a 
relatively low cost means of reducing the number of nuisance alarms 
owners and operators experience. Because they would have a higher 
confidence that alarms identify real problems, owners and operators 
would be more likely to respond. Even though most equipment in use 
today is capable of meeting more stringent probability rates, almost 
all release detection devices would require some modification to 
achieve these results. Even a relatively minor software upgrade could 
be a significant cost to owners and operators. In addition, release 
detection vendors would need to perform significant testing and 
verification to determine whether their equipment would meet the new 
Pd/Pfa rates. After considering the potential cost impacts, other 
proposed requirements, such as training owners and operators and 
requiring periodic walkthrough inspections, are sound alternatives for 
environmental protection. Therefore, EPA instead is proposing periodic 
operation and maintenance for existing release detection equipment to 
ensure its proper operation.
    EPA is proposing to eliminate groundwater and vapor monitoring as 
permissible methods of release detection. In Option 1, EPA considered 
an immediate ban of these two options as release detection methods 
because inspectors told us these methods are unsuitable and should be 
removed as soon as possible. Approximately 5 percent of UST systems use 
groundwater or vapor monitoring for release detection, which means the 
affected population of users is relatively small. Yet EPA recognizes 
this would require retrofitting or replacing existing equipment. To 
accommodate owners and operators and provide them with sufficient lead 
time to meet this requirement, EPA today is proposing a five year phase 
out for owners and operators to select, install, and begin using 
another method of release detection.
    In evaluating release detection methods suitable for UST systems 
with field-constructed tanks and airport hydrant fuel distribution 
systems, EPA considered requiring these tanks and systems comply with 
the same release detection requirements conventional UST systems meet 
under 40 CFR part 280, subpart D. After assessing costs, technical 
feasibility, and potential impacts to facility operations, EPA decided 
to propose a release detection regulatory structure specific to field-
constructed tanks and airport hydrant fuel distribution piping, per 
Sec.  280.46 and Sec.  280.47, respectively. It is sometimes impossible 
for very large tanks and piping volumes to achieve thresholds for 
current release detection methods. When a threshold is achievable, the 
time needed to reach it is often very long and impractical. The RIA 
indicates the total annual costs to meet conventional release detection 
requirements are $153 million, while total annual costs under the 
proposed alternative release detection requirements are $23 million. As 
a result, it is appropriate to propose release detection methods 
specific to these systems. This will effectively protect the 
environment by quickly detecting releases from these tanks and piping.

What is EPA's rationale for Option 2?

    In comparing costs with benefits of potential proposed changes, EPA 
weighed different frequencies for walkthrough inspections and periodic 
equipment testing. In Option 2, EPA assessed quarterly walkthrough 
inspections and not requiring interstitial integrity testing as ways to 
reduce potential cost impacts on owners and operators. While quarterly 
walkthrough inspections would reduce costs to owners and operators, EPA 
is taking the position that a period less frequent than monthly 
walkthrough inspections would considerably reduce benefits. High 
operator turnover, frequency of small leaks at dispensers and 
submersible turbine sumps, and frequency of deliveries all contribute 
to the need for monthly walkthrough inspections. With that in mind, EPA 
today is proposing monthly walkthrough inspections so owners and 
operators can consistently and routinely verify proper UST system 
component performance. This will ensure problems are detected before a 
release occurs or contaminates the environment.
    The 1988 UST regulation does not require owners and operators to 
ensure the integrity of secondarily contained areas, and EPA considered 
not requiring periodic interstitial integrity testing. Because of the 
Energy Policy Act secondary containment requirement for nearly all new 
and replaced tanks and piping, all UST systems will eventually be 
secondarily contained (including interstitial monitoring for release 
detection) and we should require periodic interstitial integrity 
testing to ensure leaks into secondary containment areas will be 
properly detected and contained. As described in Option 1, EPA 
considered annual interstitial integrity testing, but decided to 
propose a three year testing requirement, which will lower cost impacts 
of this requirement on owners and operators while retaining the 
environmental benefit of testing.
    To reduce total compliance costs of today's proposal for owners and 
operators, EPA considered allowing continued use of flow restrictors in 
vent lines (that is, ball float valves) as an acceptable form of 
overfill prevention equipment. After considering stakeholders' 
concerns, EPA is taking the position that vent line flow restrictors 
present problems for operability and safety reasons. As described 
previously, EPA is proposing to eliminate ball float valves as overfill 
prevention for all new tanks and when overfill prevention is replaced 
in existing tanks.
    EPA considered maintaining groundwater and vapor monitoring as 
acceptable forms of release detection in Option 2. All tanks and piping 
will

[[Page 71755]]

eventually use secondary containment with interstitial monitoring as 
their release detection method, and as a result, groundwater and vapor 
monitoring will eventually not be used. Stakeholders raised concerns 
about these two release detection methods, more than other methods. For 
both groundwater and vapor monitoring, releases travel through the 
environment to sampling points before releases are discovered. Other 
release detection methods provide more immediate detection of releases. 
In addition, numerous concerns were raised about frequent 
misapplications and improper designs of monitoring wells for these two 
methods. Consequently, EPA today is proposing to phase out groundwater 
and vapor monitoring as release detection methods. This will address 
stakeholders' concerns that UST systems using these two methods 
represent an unacceptable risk to the environment.

V. Updates to State Program Approval Requirements

What is EPA proposing?

    EPA is proposing these substantive changes to the 1988 state 
program approval (SPA) regulation (40 CFR part 281) to make it 
consistent with certain Energy Policy Act requirements and certain 
proposed changes to the 1988 UST technical regulation (40 CFR part 
280).
     Section 281.30(a), Sec.  281.33(c)(2), and Sec.  
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 Sec.  
9003(i)(2) of the Solid Waste Disposal Act.
     Section 281.30(b)--eliminate flow restrictors for new or 
replaced overfill prevention.
     Section 281.30(c)--add notification for ownership changes.
     Section 281.31 and Sec.  281.33(b) and (c)--delete 
upgrading requirements and eliminate phase-in schedule; add phase-in 
schedule for previously deferred UST systems.
     Section 281.32(e) and (f) and Sec.  281.33(a)(3)--add 
periodic testing of spill and overfill prevention equipment, secondary 
containment areas, and mechanical and electronic components; and 
operation and maintenance walkthrough inspections, as well as 
maintaining associated records.
     Section 281.33(c)--limit use of monthly inventory control 
in combination with tank tightness testing conducted every five years 
for the first 10 years after the tank is installed or upgraded, if the 
tank was installed prior to a state receiving SPA.
     Section 281.33(e)--require hazardous substance USTs to 
only use secondary containment with interstitial monitoring.
     Section 281.34(a)(1)--add ``interstitial space may have 
been compromised'' to suspected releases.
     Section 281.37--eliminate phase-in requirement for 
financial responsibility.
     Section 281.39--require operator training according to 
Sec.  9010 of the Solid Waste Disposal Act.
     Section 281.41(a)--require states to have delivery 
prohibition in accordance with Sec.  9012 of the SWDA.
     Section 281.60--add requirement for the Administrator to 
initiate proceedings to withdraw program approval when an approved 
program fails to submit a revised application within three years of 40 
CFR part 281 changes that require a program revision, which will follow 
the proceedings procedures from the 1988 SPA regulation.
    EPA is not proposing to add the proposed compatibility requirement 
changes (see Sec.  280.32) to 40 CFR part 281.
    EPA is also proposing these technical changes to the SPA 
regulation.
     Section 281.10--change ``subpart'' to ``part''.
     Section 281.11(c), Sec.  281.12(b)(2), Sec.  281.20(d), 
Sec.  281.21(a)(2), Sec.  281.23, Sec.  281.50(a), and formerly Sec.  
281.51--eliminate interim approval.
     Section 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.
     Section 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.
     Section 281.61--move Sec.  281.60(b) to Sec.  
281.61(b)(2).

Why is EPA proposing this change? What background information is 
available about this change?

    The 1988 SPA regulation in 40 CFR part 281 sets criteria state UST 
programs must meet to receive EPA's approval to operate in lieu of the 
federal UST program. The 1988 SPA regulation sets performance criteria 
states must meet to be considered no less stringent than the 1988 UST 
regulation (hereafter 40 CFR part 280) and provides requirements for 
states to have adequate enforcement. It also details the components of 
a SPA application.
    EPA is proposing certain changes to the 1988 SPA regulation to make 
it consistent with today's proposed changes to the 1988 UST technical 
regulation. By doing so, EPA will require states to adopt UST technical 
regulation changes when final, in order to obtain or retain SPA. EPA is 
proposing to keep the general format of the 1988 SPA regulation. We are 
not proposing to make the SPA regulation as explicit or prescriptive as 
the UST technical regulation. Finally, EPA is proposing technical 
corrections and adding a deadline for state program revisions whenever 
EPA makes substantive changes to the SPA regulation.
Addressing Energy Policy Act Requirements and Proposed 40 CFR Part 280 
Changes
How SPA Works
    EPA's proposed UST technical regulation changes and Energy Policy 
Act requirements primarily impact the 1988 SPA regulation in 40 CFR 
part 281, Subpart C--Criteria for No Less Stringent. Thirty-six states, 
plus the District of Columbia and Puerto Rico, have state program 
approval and run their own underground storage tank programs in lieu of 
the federal program. To ensure these jurisdictions, and any other 
states or territories obtaining SPA, adopt the 40 CFR part 280 changes 
when final, EPA must update Subpart C. To continue providing states 
with flexibility and not disrupt current state programs, EPA is 
proposing to revise the SPA regulation to make it consistent with, but 
not identical to, the 40 CFR part 280 changes. Instead, EPA is 
proposing changes to the SPA regulation in a less prescriptive manner 
than in the changes in 40 CFR part 280. EPA decided to continue this 
successful approach to implement the UST SPA program.
    The 1988 SPA regulation developed no less stringent criteria in the 
form of objectives.\73\ EPA is continuing this format so that, taken as 
a whole, state programs will be no less stringent than the federal 
requirements, even though they may deviate slightly from what is 
explicitly required in 40 CFR part 280.

[[Page 71756]]

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 the UST technical regulation, but is much less 
explicit about requirements.
---------------------------------------------------------------------------

    \73\ Federal Register, Vol. 53, No. 185, September 23, 1988, 
page 37216.
---------------------------------------------------------------------------

    According to Sec.  281.30 and to receive SPA, a state must require 
all new UST systems ``* * * [b]e designed, constructed, and installed 
in a manner that will prevent releases for their operating life due to 
manufacturing defects, structural failure, or corrosion * * *''. In 
contrast, 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.
Proposed Goal Oriented Changes
    EPA is proposing these goal oriented changes to Subpart C--Criteria 
for No Less Stringent. By the term ``goal oriented changes,'' EPA means 
changes in which states have some flexibility as to how they will meet 
the goals of the particular SPA regulation section. They reflect 
certain 40 CFR part 280 proposed changes.
     Sec.  281.30(c)--add notification for ownership changes.
     Sec.  281.31 and Sec.  281.33(b)--add a phase-in schedule 
for upgrading previously deferred UST systems.
     Sec.  281.32(e) and (f) and Sec.  281.33(a)(3)--add 
periodic testing of spill and overfill prevention equipment, secondary 
containment areas, and mechanical and electronic components; and 
operation and maintenance walkthrough inspections, as well as 
maintaining associated records.

EPA's proposed ownership change notification requires anyone who 
assumes ownership of an UST system to notify the implementing agency 
within 30 days of assuming ownership and specifies what notification 
must include. Our proposed SPA regulation change in Sec.  281.30(c) is 
much less prescriptive and indicates states require owners and 
operators to ``* * * adequately notify the implementing state agency 
within a reasonable timeframe when assuming ownership of an UST system 
using a form designated by the state agency.'' This provides states 
some flexibility in complying, including allowing them to continue 
relying on an annual tank registration program to meet this 
requirement. This is a reasonable way to ensure states know who owns 
USTs in their jurisdiction. EPA does not have an annual registration 
program, so we specify a timeframe in Sec.  280.22 because we want to 
know who owns tanks in jurisdictions where we are the implementing 
agency.
    In Sec.  280.21, EPA is proposing that previously deferred 
wastewater treatment tank systems, airport hydrant fuel distribution 
systems, and UST systems with field-constructed tanks meet specific 
upgrade requirements. This is one way of achieving the goal states need 
to meet in Sec.  281.31. In Sec.  281.31, states will be required to 
ensure tanks are upgraded to prevent releases due to corrosion, spills, 
and overfills or be permanently closed. These more general requirements 
are sufficient for a state program to protect human health and the 
environment because they require UST systems to ``* * * prevent 
releases for their operating life * * *''. EPA finds it is also 
adequate to upgrade previously deferred systems to this standard.
    Additionally, EPA is proposing previously deferred UST systems be 
upgraded within three years of a state submitting its SPA application 
for approval or revision. In the past, EPA experienced problems with 
requiring states to have a particular requirement by a certain date in 
order to receive SPA. States applying for SPA after a deadline passed 
often have difficulty implementing or obtaining a retroactive 
requirement. A retroactive or deadline leads to complications with 
little added benefit.
    In today's proposal, EPA is adding various operation and 
maintenance requirements. In 40 CFR part 280, EPA is proposing specific 
frequencies and procedures for testing spill and overfill prevention 
equipment, secondary containment integrity testing, release detection 
equipment testing, and operation and maintenance walkthrough 
inspections. In Sec.  281.32, EPA is proposing states require these 
tests in a manner and frequency that ensures proper functionality of 
equipment, includes proper operation and maintenance of the UST system, 
and prevents releases for the life of the equipment and UST system. 
This approach allows states who have these requirements, despite 
different frequencies or manners, to receive SPA, as long as their 
requirements sufficiently ensure properly functioning non-releasing UST 
systems. EPA is also proposing to update Sec.  281.32(g) by adding 
these tests to the recordkeeping requirements of SPA.
Proposed Energy Policy Act Changes
    In today's SPA regulation proposal, EPA is addressing Energy Policy 
Act requirements more generally than in today's UST technical 
regulation proposal, yet they are slightly different than the goal 
oriented approach above. The Energy Policy Act amends the Solid Waste 
Disposal Act and requires states that receive federal Subtitle I money 
to adopt operator training requirements, delivery prohibition, and 
additional measures to protect groundwater from contamination. In the 
additional measures to protect groundwater provision, states must meet 
either secondary containment and interstitial monitoring for new or 
replaced tanks and piping within 1,000 feet of a potable drinking water 
well or community water system, or manufacturer and installer financial 
responsibility and installer certification. The secondary containment 
requirement includes under-dispenser containment on any new motor fuel 
dispenser system within 1,000 feet of a potable drinking water well or 
community water system.
    EPA developed guidelines for states to implement Energy Policy Act 
requirements; many states and territories implemented the Energy Policy 
Act requirements according to these guidelines. In order to establish 
similar requirements in Indian country and in states and territories 
that do not adopt Energy Policy Act requirements, EPA is adding 
secondary containment and operator training to today's 40 CFR part 280 
proposal. In proposing those requirements, EPA does not want to 
supersede programs states developed to meet Energy Policy Act 
requirements. Requiring states to alter newly implemented provisions 
would be a disservice to them, as well as UST owners and operators. 
Therefore, EPA is proposing to address in today's SPA regulation 
proposal the secondary containment, manufacturer and installer 
financial responsibility and installer certification, delivery 
prohibition, and operator training requirements that appear in the 
Energy Policy Act. So, states already meeting these Energy Policy Act 
requirements need not change their programs to receive SPA.
    EPA is proposing additional measures to protect groundwater and 
operator training requirements in Subpart C (Sec.  281.22(d)(3), Sec.  
281.30(a), Sec.  281.33(c)(2), and Sec.  281.39). Delivery prohibition 
is in Subpart D--Adequate Enforcement of Compliance (Sec.  281.41(a)). 
Because delivery prohibition is an enforcement tool, EPA is proposing 
to require states have authority to prohibit deliveries

[[Page 71757]]

according to Energy Policy Act, rather than make this a no less 
stringent requirement.
    EPA is not proposing to add delivery prohibition to 40 CFR part 280 
because delivery prohibition is primarily an enforcement tool for 
implementing agencies; it is not a requirement for owners and 
operators. Because the Energy Policy Act gives EPA clear delivery 
prohibition enforcement authority, we do not need to add delivery 
prohibition to the UST technical regulation. However, the only way to 
ensure states have that same authority is to require states to have 
authority to implement delivery prohibition as a prerequisite for SPA, 
as proposed in Sec.  281.41(a).
Proposed Specific Changes
    EPA is proposing specific changes below to Subpart C--Criteria for 
No Less Stringent. They reflect proposed 40 CFR part 280 changes. This 
specific approach is the only way for states to adopt this group of 
proposed changes. The goal of these proposed sections remains intact, 
yet the specific changes ensure states adopt the 40 CFR part 280 
changes when final, and are able to receive SPA.
     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 10 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

EPA is proposing in Sec.  281.30(b) states wishing to receive SPA not 
allow installation of flow restrictors (commonly referred to as ball 
floats) in vent lines for overfill protection. The existing goal of 
Sec.  281.30(b) is for states to require that UST systems have spill 
and overfill prevention equipment. In the proposed language, EPA 
maintains the overall goal to prevent spills and overfills; however, 
owners and operators can no longer install ball floats to achieve that 
goal.
    The deadlines for upgrades and for owners and operators to obtain 
financial responsibility have passed. As a result, EPA is proposing to 
eliminate these UST technical regulation deadlines in the SPA 
regulation. In Sec.  281.31 and Sec.  281.33(b), EPA is removing UST 
upgrades, except for previously deferred USTs. In Sec.  281.37, we are 
eliminating the financial responsibility phase-in schedule. Please note 
EPA is proposing states allow upgrades prior to submitting their 
approval or revision applications for SPA, rather than only until 
December 22, 1998. EPA is taking this action due to states' previous 
problems with implementing a retroactive requirement when applying for 
SPA after the upgrade deadline.
    In Sec.  281.33(c), EPA is proposing monthly inventory control in 
combination with tank tightness testing conducted every five years for 
the first 10 years after a tank is installed or upgraded, only if a 
tank was installed prior to a state receiving SPA. This reflects a 
proposed change in 40 CFR part 280 and avoids another problem in the 
1988 SPA regulation. First, EPA is proposing to eliminate this method. 
Second, EPA is proposing to tie the date for eliminating this method to 
a state's submission of its SPA application for approval or revision. 
As discussed earlier, EPA is taking the position that it is better to 
tie deadlines in the SPA regulation to states' submission of SPA 
applications, rather than specific dates.
    In today's notice, EPA is proposing states wishing to receive SPA 
will no longer be able to allow installation of non-secondarily 
contained hazardous substance UST systems. This is consistent with 
EPA's proposed change in Sec.  280.42(e); an equivalent and specific 
proposed change to the SPA regulation is the only way to ensure states 
adopt it. For consistency with proposed changes in the UST technical 
regulation and to ensure states wishing to receive SPA adopt this 
change, in Sec.  281.34(a)(1), EPA is proposing to add ``* * * 
interstitial space may have been compromised * * *'' to suspected 
releases conditions.
Proposed UST Technical Regulation Changes Not Addressed in Proposed SPA 
Regulation
    EPA is not proposing to address in the proposed SPA regulation 
(Sec.  281.32) the methods for determining compatibility. Today's 
proposed compatibility proposal in Sec.  281.32 allows owners and 
operators to use any method for determining compatibility approved by 
an implementing agency, as long as the method is no less protective of 
human health and the environment. It is unnecessary to change the SPA 
regulation because the proposed UST technical regulation in Sec.  
281.32 will provide states with discretion to ensure compatibility. 
Also, the proposed UST technical regulation change delineates how 
owners and operators can demonstrate they are storing substances in UST 
systems made of or lined with materials that are compatible with the 
substances stored. This is more prescriptive than the general format of 
the SPA regulation, and thus is not appropriate for the SPA regulation.
Addressing SPA Revision Process
    EPA is proposing to add a requirement for approved states to submit 
a revised application within three years of SPA regulation changes that 
require a program revision under 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 
today's proposed significant changes, it is necessary to develop a 
timeframe which will ensure approved states meet SPA regulation changes 
in a reasonable time.
    After discussions with states and reviews of other EPA programs, 
EPA is taking the position that three years is a reasonable time for 
approved states to submit revised applications resulting from SPA 
regulation changes. Also, EPA will work with states to ensure they meet 
this three-year deadline. EPA's proposed language in 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, 
EPA changes to Subpart C--Criteria for No Less Stringent would likely 
require a state program revision, unless EPA is only making minor 
editorial changes.
    While most states will be able to meet the three-year deadline for 
program revision, EPA is aware that some states may need additional 
time. EPA will notify states that have not revised their program within 
three years. EPA will ask those states to demonstrate their level of 
effort, show progress to date, and provide dates when they will achieve 
major milestones for revising their programs and submitting a revised 
application. EPA will consider these factors before initiating program 
approval withdrawal.
Additional Proposed Changes to SPA Regulation
    EPA is proposing these additional SPA regulation changes; they are 
not a direct result of proposed 40 CFR part 280 changes. Rather, the 
majority are corrections to the 1988 SPA regulation.

[[Page 71758]]

     Sec.  281.10--change ``subpart'' to ``part''
     Sec.  281.11(c), Sec.  281.12(b)(2), Sec.  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.  281.61--move Sec.  281.60(b) to Sec.  281.61(b)(2)
    The SPA regulation incorrectly uses the term subpart in Sec.  
281.10, and therefore EPA is proposing to correctly change this to 
part. EPA has been using the term Indian country instead of Indian 
lands for years. We are proposing to incorporate this term, which does 
not alter the meaning, in the SPA regulation. EPA is proposing to 
remove the reserved financial responsibility for USTs containing 
hazardous substances section (formerly Sec.  281.38); move the lender 
liability section from Sec.  281.39 to Sec.  281.38; and include the 
new operator training section in Sec.  281.39. Because operator 
training needs to be in subpart C, which has no remaining section 
numbers, this eliminates the need to renumber subpart D. Also, the 
reserved financial responsibility for hazardous substances section is 
unnecessary since there is no corresponding requirement in 40 CFR part 
280.
    EPA is proposing to delete the interim SPA approval language (in 
Sec.  281.11(c) and Sec.  281.51). In more than 20 years of the UST 
program, no state has sought interim approval; it is more beneficial to 
receive full approval all at once, rather than in steps. Also, because 
36 states plus the District of Columbia and Puerto Rico have SPA, 
interim SPA approval is unnecessary at this time.
    EPA is proposing to eliminate the requirement to maintain upgrade 
records for the operational life of an UST facility. This requirement 
in Sec.  281.32(e) of the 1988 SPA regulation does not exist in 40 CFR 
part 280. In addition, EPA is proposing to no longer allow upgrades.
    EPA is also proposing to move Sec.  281.60(b) to Sec.  281.61(b). 
This paragraph explains the procedure EPA will follow to withdraw 
approval. 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.

What issues related to this change does EPA request comment or 
additional data on?

EPA requests comments on:
     Is three years an appropriate timeframe for requiring a 
SPA state to submit a revised application? Please provide 
justification.
     Should EPA address the proposed procedures for determining 
compatibility of Sec.  280.32 into the SPA regulation?

Please provide reasoning or justification if you disagree with or 
propose something different from EPA's proposal.

VI. Overview of Estimated Costs and Benefits

    EPA prepared an analysis of the potential incremental costs and 
benefits associated with this action. This analysis is contained in the 
regulatory impact analysis (RIA) document titled Assessment of the 
Potential Costs, Benefits, and Other Impacts of the Proposed Revisions 
to EPA's Underground Storage Tank Regulations, which is available in 
the docket for this proposal. RIA estimated regulatory implementation 
and compliance costs, and benefits for three regulatory options as 
described above in section V, subsection F. On an annualized basis, the 
estimated regulatory compliance costs for the three options in today's 
proposed action are $210 million (Preferred Option), $520 million 
(Option 1), and $130 million (Option 2). Separately, this analysis 
assessed the potential benefits of the proposed regulation. As 
discussed in the RIA, a substantial portion of the beneficial impacts 
associated with the proposed regulation are avoided cleanup costs as a 
result of preventing releases and reducing the severity of releases. 
Today's action is expected to have annual cost savings related to 
avoided costs of $300-$740 million per year under the Preferred Option, 
$310-$770 million per year under Option 1, and $110-$590 million per 
year under Option 2.
    We recognize that the estimated number of avoided releases and 
releases reduced in severity is based on expert judgment. Moreover, the 
cost savings estimates reflect cost data from only a small number of 
state programs (e.g., such as New Hampshire). We solicit public input 
on the accuracy of the expected reduction in releases due to the 
proposed requirements provided by the experts, as well as remediation 
cost data for releases of different sizes and types. Please provide 
relevant data and studies on this topic. EPA solicits comment on the 
methodology and results from the RIA, as well as any data that the 
public feels would be useful in a revised analysis including 
specifically cost estimates for remediation and EPA's methods for 
estimating prevented releases under the proposed rule.

VII. Statutory and Executive Orders

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, 
October 4, 1993), this action is an ``economically significant 
regulatory action'' because it is likely to have an annual effect on 
the economy of $100 million or more. Accordingly, EPA submitted this 
action to the Office of Management and Budget (OMB) for review under EO 
12866 and EO 13563 (76 FR 3821, January 21, 2011) and any changes made 
in response to OMB recommendations have been documented in the docket 
for this action.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 1360.11.
    Today's proposed regulation contains mandatory information 
collection requirements. The labor burden and associated costs for 
these requirements are estimated in the ICR supporting statement for 
today's proposed action. The supporting statement identifies and 
estimates the burden for each of the changes to the regulations that 
include recordkeeping or reporting requirements. Proposed changes 
include: Adding secondary containment requirements for new and replaced 
tanks and piping; adding operator training requirements; adding 
periodic operation and maintenance requirements for UST systems; 
removing certain deferrals; adding new release prevention and detection 
technologies; and updating state program approval requirements to 
incorporate these new changes.
    Based on the same data and cost calculations applied in the 
Regulatory Impact Assessment (RIA) for today's action, but using the 
burden estimations for ICRs, the ICR supporting statement estimates an 
average annual labor hour burden of 2.3 million hours and $135 million 
for the proposed regulation. One

[[Page 71759]]

time capital and hourly costs are included in these estimates based on 
a three year annualization period. Burden is defined at 5 CFR 
1320.3(b). The total universe of respondents for this ICR is comprised 
of 223,558 facilities and 56 states and territories.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR Part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this rule, which includes this ICR, under Docket ID number EPA-HQ-UST-
2011-0301. Submit any comments related to the ICR to EPA and OMB. See 
ADDRESSES section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after November 18, 2011, a comment to OMB is best assured of having its 
full effect if OMB receives it by December 19, 2011. The final rule 
will respond to any OMB or public comments on the information 
collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, a small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed 
regulation on small entities, EPA certifies that this action will not 
have a significant economic impact on a substantial number of small 
entities. The small entities directly regulated by this proposed rule 
are small businesses and small governmental jurisdictions. We have 
determined that at most 1 percent of potentially affected small firms 
in the retail motor fuel sector (NAICS 447) will experience an impact 
over 1 percent of revenues but less than 3 percent of revenues. No 
small firms have impacts above 3 percent of revenues. In addition, we 
estimate that no small governmental jurisdictions would be impacted at 
1 percent or 3 percent of revenues. This certification is based on the 
small entities analysis contained in the RIA for today's proposal.
    Although this proposed regulation will not have a significant 
economic impact on a substantial number of small entities, EPA 
nonetheless tried to reduce the impact of this regulation on the 
regulated community in general, which is primarily comprised of small 
businesses. EPA conducted extensive outreach in order to determine 
which changes to make to the 1988 regulations. EPA worked with 
representatives of owners and operators and reached out specifically to 
small businesses. In addition, EPA considered the impacts of each 
potential regulatory change and worked to limit changes that required 
retrofits, since changes requiring retrofits would place a high 
financial burden on small businesses. Finally, EPA maintained numerous 
options for compliance in order to provide small entities with as much 
flexibility as possible.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and tribal governments and the private sector. This rule 
contains a Federal mandate that may result in expenditures of $100 
million or more for the private sector in any one year. Accordingly, 
EPA prepared under section 202 of the UMRA a written statement (an 
appendix to the RIA), which is summarized below.
    As estimated in the RIA, on an annualized basis, the total 
estimated regulatory compliance costs for the three options in today's 
proposed action are $210 million (Preferred Option), $520 million 
(Option 1), and $130 million (Option 2). Of this amount, annualized 
costs to state/local governments total $9 million under the Preferred 
Option, $19 million under Option 1, and $6 million under Option 2. 
These costs consist of estimated regulatory compliance costs for state/
local governments that currently own or operate UST systems and 
annualized costs of $120,000 for states to implement the proposed rule. 
EPA estimates total annualized costs to owners and operators of 
tribally owned UST systems are $0.7 million under the Preferred Option. 
The estimated annualized cost to the private sector range is 
approximately $180 million under the Preferred Option, $350 million 
under Option 1, and $120 million under Option 2. While the proposed 
regulation may result in expenditures of $100 million or more for the 
private sector, thereby triggering section 202 of the UMRA, this rule 
is not subject to the requirements of section 204 of UMRA because EPA 
does not believe state, local, and tribal governments will incur 
aggregate costs of over $100 million per year.
    Consistent with section 205, EPA identified and considered a 
reasonable number of regulatory alternatives. Today's proposed 
regulation identifies a number of regulatory options, and the RIA 
estimates the annual cost across the three considered options may range 
between $130 million and $520 million. Section 205 of the UMRA requires 
federal agencies to select the least costly or most cost-effective 
regulatory alternative unless the Agency publishes with the final rule 
an explanation of why such alternative was not adopted. As discussed 
earlier in the preamble, as part of EPA's deliberative process for 
today's proposed rule, EPA considered and evaluated variations of a 
subset of the proposed requirements using two alternative options 
(Options 1 and 2). The preferred option provides the greatest 
difference between beneficial impact and costs of any of the options. 
The requirements proposed under the Preferred Option provide for 
greater protection of human health and the environment and better 
addresses stakeholder concerns, compared to the lower cost and proposed 
requirements of Option 2.
    This rule is not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments.

[[Page 71760]]

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in EO 13132. Under the proposed rule, total costs to all 
affected states and local governments (including direct compliance 
costs, notification costs, and state program costs) are approximately 
$9 million. This is not considered to be a substantial compliance cost 
under federalism requirements. Thus, EO 13132 does not apply to this 
action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) EPA may not issue a regulation that has tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by tribal governments, or 
EPA consults with tribal officials early in the process of developing 
the proposed regulation and develops a tribal summary impact statement.
    EPA concluded that this action will have tribal implications to the 
extent that tribally-owned entities with UST systems on Indian country 
would be affected. However, it will neither impose substantial direct 
compliance costs on tribal governments, nor preempt tribal law. Total 
annualized costs for tribally-owned UST systems in Indian country are 
estimated to be $0.7 million.
    EPA consulted with tribal officials early in the process of 
developing this proposed regulation to welcome meaningful and timely 
input into its development. EPA began its consultation with Tribes on 
possible changes to the UST regulation shortly after the passage of the 
Energy Policy Act of 2005. The Energy Policy Act directed EPA to 
coordinate with Tribes to develop and implement an UST program strategy 
in Indian country to supplement the program's existing approach. EPA 
and Tribes worked collaboratively to develop a tribal strategy.
    There are certain key provisions of the Energy Policy Act that 
apply to states receiving federal Subtitle I money, but do not apply in 
Indian country. Nonetheless, EPA's goal is to establish in Indian 
country similar federal requirements to these Energy Policy Act 
provisions as an important step in achieving more consistent program 
results in release prevention. Both EPA and Tribes recognize the 
importance of having policies that can help ensure parity in program 
implementation between states and in Indian country.
    In addition to our early consultation with Tribes, EPA also reached 
out again to Tribes as we started the official rulemaking process and 
throughout the development of this proposed regulation. EPA sent 
letters to leaders of over 500 Tribes as well as to Tribal regulatory 
staff to invite their participation in the development of the 
regulation. EPA heard from both Tribal officials who work as regulators 
as well as representatives of owners and operators of UST systems in 
Indian country. The Tribal regulators raised concerns about ensuring 
parity of environmental protection between states and Indian country.
    EPA finds that today's proposed changes to the UST regulation are 
needed to ensure parity between UST systems in states and in Indian 
country. This regulation is also needed to ensure equipment is not just 
installed but is working properly to protect the environment from 
potential releases.
    EPA specifically solicits additional comment on this proposed 
action from Tribal officials.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because the Agency does not believe the environmental health 
risks or safety risks addressed by this action present a 
disproportionate risk to children. EPA's risk assessment for this 
proposed rulemaking examines potential impacts to groundwater and 
subsequent chemical transport, exposure and risk. While the risk 
assessment did not specifically measure exposure to children, the 
general exposure scenarios reflect four exposure pathways that have the 
most significant potential for human health impacts. These are: (1) 
Ingestion of chemicals in groundwater that have migrated from the 
source area to residential drinking water wells; (2) inhalation of 
volatile chemicals when showering with contaminated groundwater; (3) 
dermal contact with chemicals while bathing or showering with 
contaminated groundwater; and (4) inhalation of vapors that may migrate 
upward from contaminated groundwater into overlying buildings.
    Adults and children can potentially be exposed through all four 
exposure pathways considered. For adults, inhalation of vapors while 
showering is the most significant exposure pathway; for children, 
ingestion is the most significant pathway, because they are assumed to 
take baths and are, therefore, not exposed via shower vapor inhalation. 
As a result of the longer exposure from showering, adults are the more 
sensitive receptors for cancer effects compared to children, 
particularly those under five who are assumed to take more baths and 
fewer showers.\74\
---------------------------------------------------------------------------

    \74\ 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 proposed rule would likely reduce 
other contaminant exposures to children in a similar pattern and would 
not create significant adverse impacts on children's health.
    The screening level population analysis performed to examine EO 
12898 shows that children under 18 years and children under five years 
are slightly less likely to be found in the vicinity of UST facilities. 
This suggests that the impacts of the proposed rule will not have a 
disproportionate impact on children's health. Moreover, because all 
regulatory options proposed today would increase regulatory stringency 
and reduce the number and size of releases, EPA does not expect the 
proposed regulation to have any disproportionate adverse impact on 
children. The public is invited to submit comments or identify peer-
reviewed studies and data that assess effects of early life exposure to 
petroleum products.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. The following summarizes EPA's 
assessment of the energy impacts that the proposed rulemaking will have 
on energy supply, distribution, and use.

[[Page 71761]]

    The proposed regulation consists of additional regulatory 
requirements that apply to the owners and operators of underground 
storage tanks. To the extent that the proposed regulation affects the 
motor fuel sector, it does so at the retail motor fuel sales level, 
rather than the level of refineries or distributors, who supply the 
retail stations with motor fuel. Therefore, we do not expect the 
proposed regulation to have a significant adverse impact on energy 
supply or distribution.
    The additional regulatory requirements contained in the proposed 
regulation may increase compliance costs for owners and operators of 
retail motor fuel stations. If owners and operators of retail motor 
fuel stations affected by the proposed regulation can pass through 
their increased compliance costs, energy use may be affected via higher 
energy prices caused by the proposed regulation. However, we do not 
expect a significant change in retail gasoline prices to result from 
this proposed regulation for the following reasons: (1) Economic 
analyses of retail fuel prices have revealed that demand for gasoline 
is highly sensitive to price (elastic) within localized geographic 
areas. As a result, if one motor fuel retailer in an area passes 
through increases in compliance costs by increasing gasoline prices, 
while another does not, the one with higher prices is at a competitive 
disadvantage; and (2) retail motor fuel stations often have associated 
stores and/or services, such as car washes, repair operations, and 
convenience outlets, on which they can more successfully pass through 
increases in compliance costs.
    Furthermore, when considered in the context of total fuel 
consumption in the United States, the proposed rule would represent 
only a very small fraction of motor fuel prices even if it was fully 
passed through to consumers. According to the Bureau of Transportation 
Statistics, the United States consumed approximately 171 billion 
gallons of motor fuel (including gasoline and diesel) in 2008 at an 
average price of $3.27.\75\ This implies that U.S. consumers spent $558 
billion in 2008 on motor fuel. The overall cost of the proposed 
regulation is approximately $210 million, less than one-tenth of 1 
percent of the amount spent by end users on motor fuel in 2008. In 
comparison, an increase of 1 cent in the average price of motor fuel in 
2008 would have increased the total cost to consumers by approximately 
$1.7 billion. Given these circumstances, the proposed regulations 
should not have a measurable impact on retail motor fuel prices. As a 
result, EPA does not expect the proposed regulations to have a 
significant adverse impact on energy prices or use.
---------------------------------------------------------------------------

    \75\ The 2008 prices per gallon for all grades of retail motor 
gasoline and No. 2 diesel fuel (all concentrations of sulfur) were 
$3.32 and $3.15, respectively, as reported by the Bureau of 
Transportation Statistics in Table 3-8: Sales Price of 
Transportation Fuel to End-Users in National Transportation 
Statistics 2010 (at http://www.bts.gov/publications/national_transportation_statistics/pdf/entire.pdf). We weight these prices 
according to prime supplier sales volumes in 2009 published by the 
Energy Information Administration, which summed to 362,798.5 
thousands of gallons per day for gasoline and 132,489.3 thousands of 
gallons per day for all grades of diesel fuel (at http://www.eia.gov/dnav/pet/pet_cons_prim_dcu_nus_a.htm).
---------------------------------------------------------------------------

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113 (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed regulation involves technical standards. EPA is 
proposing to use voluntary consensus standards, called codes of 
practice identified in section E-2 of the preamble. These codes of 
practice meet the objectives of today's proposed regulation by 
establishing criteria for the design, construction, and maintenance of 
underground storage tanks.
    EPA welcomes comments on this aspect of the proposed regulation 
and, specifically, invites the public to identify potentially 
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    To inform us about the socioeconomic characteristics of communities 
potentially affected by the proposed regulation, EPA conducted a 
screening analysis to examine whether there is a statistically 
significant disparity between socioeconomic characteristics of 
populations located near UST facilities and those that are not.\76\ As 
discussed in the RIA, the results indicate that minority and low-income 
populations are slightly more likely to be located near UST facilities. 
An environmental justice analysis would then require an assessment of 
whether there would be disproportionate and adverse impacts on these 
populations. However, because all regulatory options considered in this 
proposed regulation would increase regulatory stringency and reduce the 
number and size of releases, EPA does not anticipate the proposed 
regulation to have any disproportionately high and adverse human health 
or environmental effects on these minority or low-income communities or 
any community.
---------------------------------------------------------------------------

    \76\ 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.''
---------------------------------------------------------------------------

List of Subjects

40 CFR Part 280

    Environmental protection, Administrative practice and procedures, 
Confidential business information, Groundwater, Hazardous materials, 
Petroleum, Reporting and recordkeeping requirements, Underground 
storage tanks, Water pollution control, Water supply.

40 CFR Part 281

    Environmental protection, Administrative practice and procedures, 
Hazardous substances, Petroleum, State program approval, Underground 
storage tanks.

    Dated: October 25, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, Title 40 Chapter I of Code 
of Federal Regulations is proposed to be amended as follows.

[[Page 71762]]

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

    1. The authority citation for part 280 is revised to read as 
follows:

    Authority: 42 U.S.C. 6912, 6991, 6991(a), 6991(b), 6991(c), 
6991(d), 6991(e), 6991(f), 6991(g), 6991(h), 6991(i).

    2. Revise Sec.  280.10 to read as follows:

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. UST systems previously 
deferred from subparts B, C, D, E, G and H (airport hydrant fuel 
distribution systems, UST systems with field-constructed tanks, and 
wastewater treatment tank systems) and UST systems previously deferred 
from subpart D (UST systems that store fuel solely for use by emergency 
power generators) must begin meeting the requirements of this part as 
follows:
    (i) UST systems installed on or before [effective date of rule] 
must meet the schedule in the following table.

------------------------------------------------------------------------
     Type of UST system        Subpart or Section      Effective date
------------------------------------------------------------------------
UST systems that store fuel   D...................  [1 Year after
 solely for use by emergency                         effective date of
 power generators.                                   rule].
------------------------------------------------------------------------
Airport hydrant fuel          B (except Sec.        [3 Years after
 distribution systems; UST     280.22) and C.        effective date of
 systems with field-          D...................   rule].
 constructed tanks; and       Sec.   280.22 of      See the phase in
 wastewater treatment tank     subpart B, E, G and   schedule in Sec.
 systems.                      H.                    280.40(c).
                                                    [effective date of
                                                     rule].
------------------------------------------------------------------------

    (ii) UST systems installed after [effective date of rule] must meet 
all requirements at installation.
    (2) Any UST system listed in paragraph (c) of this section must 
meet the requirements of Sec.  280.11.
    (b) The following UST systems are excluded from the requirements of 
this part:
    (1) Any UST system holding hazardous wastes listed or identified 
under Subtitle C of the Solid Waste Disposal Act, or a mixture of such 
hazardous waste and other regulated substances.
    (2) Any wastewater treatment tank system that is part of a 
wastewater treatment facility regulated under Section 402 or 307(b) of 
the Clean Water Act.
    (3) Equipment or machinery that contains regulated substances for 
operational purposes such as hydraulic lift tanks and electrical 
equipment tanks.
    (4) Any UST system whose capacity is 110 gallons or less.
    (5) Any UST system that contains a de minimis concentration of 
regulated substances.
    (6) Any emergency spill or overflow containment UST system that is 
expeditiously emptied after use.
    (c) Deferrals. Subparts B, C, D, E, and G of this part do not apply 
to:
    (1) Aboveground tanks associated with:
    (i) Airport hydrant fuel distribution systems; and
    (ii) UST systems with field-constructed tanks;
    (2) Any UST systems containing radioactive material that are 
regulated under the Atomic Energy Act of 1954 (42 USC 2011 and 
following); and
    (3) Any UST system that is part of an emergency generator system at 
nuclear power generation facilities regulated by the Nuclear Regulatory 
Commission under 10 CFR part 50.
    3. In Sec.  280.11 revise the Note at the end of the section to 
read as follows:

Sec.  280.11  Interim prohibition for deferred UST systems.

* * * * *

    Note to paragraphs (a) and (b): The following codes of practice 
may be used as guidance for complying with this section:
    (A) NACE International Recommended Practice RP 0285, ``Corrosion 
Control of Underground Storage Systems by Cathodic Protection'';
    (B) NACE International Standard Practice SP 0169, ``Control of 
External Corrosion on Underground or Submerged Metallic Piping 
Systems'';
    (C) American Petroleum Institute Recommended Practice 1632, 
``Cathodic Protection of Underground Petroleum Storage Tanks and 
Piping Systems''; or
    (D) Steel Tank Institute Recommended Practice R892, 
``Recommended Practice for Corrosion Protection of Underground 
Piping Networks Associated with Liquid Petroleum Storage and 
Dispensing Systems''.
    4. Section 280.12 is amended as follows:

    a. By adding in alphabetical order definitions for ``Airport 
hydrant fuel distribution system,'' ``Class A operator,'' ``Class B 
operator,'' ``Class C operator,'' ``Dispenser system,'' ``Replaced,'' 
``Secondary containment,'' ``Training program,'' and ``Under-dispenser 
containment,'' and
    b. By revising the definitions for ``Motor fuel,'' ``Regulated 
substance,'' ``Repair,'' and ``Underground storage tank.''

Sec.  280.12  Definitions.

* * * * *
    Airport hydrant fuel distribution system means an UST system that 
is a combination of one or more tanks directly connected to underground 
hydrant piping used to fuel aircraft. These systems do not have a 
dispenser at the end of the piping run, but rather have a hydrant (fill 
stand). If an aboveground storage tank (AST) is feeding an intermediary 
tank or tanks, this definition does not include the AST, but does 
include all underground piping entering and leaving the intermediary 
tank(s) and the intermediary tank(s). Intermediary tanks are those 
tanks directly connected to the hydrant piping.
* * * * *
    Class A operator means the individual who has primary 
responsibility to operate and maintain the UST system in accordance 
with applicable requirements and standards established by the 
implementing agency. The Class A operator typically manages resources 
and personnel, such as establishing work assignments, to achieve and 
maintain compliance with regulatory requirements.
    Class B operator means the individual who has day-to-day 
responsibility for implementing applicable regulatory requirements and 
standards established by the implementing agency. The Class B operator 
typically implements in-field aspects of operation, maintenance, and 
associated recordkeeping for the UST system.
    Class C operator means the employee responsible for initially 
addressing emergencies presented by a spill or release from an UST 
system. The Class C operator typically controls or monitors the 
dispensing or sale of regulated substances.
* * * * *
    Dispenser system means equipment located aboveground that meters 
the amount of regulated substances transferred to a point of use 
outside the UST system, such as a motor vehicle.

[[Page 71763]]

This system includes the equipment necessary to connect the dispenser 
to the underground storage tank system.
* * * * *
    Motor fuel means petroleum or a petroleum-based substance that is 
typically used in the operation of a motor engine, such as motor 
gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any blend 
containing one or more of these substances (for example: motor gasoline 
blended with alcohol).
* * * * *
    Regulated substance means
    (a) Any substance defined in section 101(14) of the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA) of 1980 
(but not including any substance regulated as a hazardous waste under 
subtitle C), and
    (b) Petroleum, including crude oil or any fraction thereof that is 
liquid at standard conditions of temperature and pressure (60 degrees 
Fahrenheit and 14.7 pounds per square inch absolute). The term 
``regulated substance'' includes but is not limited to petroleum and 
petroleum-based substances comprised of a complex blend of 
hydrocarbons, such as motor fuels, jet fuels, distillate fuel oils, 
residual fuel oils, lubricants, petroleum solvents, and used oils.
* * * * *
    Repair means to restore a tank, pipe, spill prevention equipment, 
overfill prevention equipment, corrosion protection equipment, release 
detection equipment or other UST system component that has caused a 
release or a suspected release of product from the UST system or has 
failed to function properly.
    Replaced means
    (a) For a tank--to remove a tank and install another tank.
    (b) For piping--to remove 50 percent or more of piping and install 
other piping, excluding connectors, connected to a single tank. For 
tanks with multiple piping runs, this definition applies independently 
to each piping run.
* * * * *
    Secondary containment or Secondarily contained means a release 
prevention and release detection system for a tank and/or piping. These 
systems have an inner and outer barrier with an interstitial space that 
is monitored for leaks.
* * * * *
    Training program means any program established by the implementing 
agency that provides information to and evaluates the knowledge of a 
Class A, Class B, or Class C operator regarding requirements and 
standards for UST systems.
    Under-dispenser containment or UDC means containment underneath a 
dispenser system designed to prevent dispenser system leaks from 
reaching soil or groundwater.
* * * * *
    Underground storage tank or UST means any one or combination of 
tanks (including underground pipes connected thereto) that is used to 
contain an accumulation of regulated substances, and the volume of 
which (including the volume of underground pipes connected thereto) is 
10 percent or more beneath the surface of the ground. This term does 
not include any:
    (a) Farm or residential tank of 1,100 gallons or less capacity used 
for storing motor fuel for noncommercial purposes;
    (b) Tank used for storing heating oil for consumptive use on the 
premises where stored;
    (c) Septic tank;
    (d) Pipeline facility (including gathering lines):
    (1) Which is regulated under U.S.C. chapters 601 and 603, or
    (2) Which is an intrastate pipeline facility regulated under state 
laws as provided in U.S.C. 49 chapters 601 and 603,and which is 
determined by the Secretary of Transportation to be connected to a 
pipeline, or to be operated or intended to be capable of operating at 
pipeline pressure, or as an integral part of a pipeline;
    (e) Surface impoundment, pit, pond, or lagoon;
    (f) Storm-water or wastewater collection system;
    (g) Flow-through process tank;
    (h) Liquid trap or associated gathering lines directly related to 
oil or gas production and gathering operations; or
    (i) Storage tank situated in an underground area (such as a 
basement, cellar, mineworking, drift, shaft, or tunnel) if the storage 
tank is situated upon or above the surface of the floor.
    The term underground storage tank or UST does not include any pipes 
connected to any tank which is described in paragraphs (a) through (i) 
of this definition.
* * * * *
    5. Revise Subpart B to read as follows:

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

Sec.
280.20 Performance standards for new UST systems.
280.21 Upgrading of existing UST systems.
280.22 Notification requirements.

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

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.
    (a) Tanks. Each tank must be properly designed and constructed, and 
any portion underground that routinely contains product must be 
protected from corrosion, in accordance with a code of practice 
developed by a nationally recognized association or independent testing 
laboratory as specified in paragraphs (a)(1) through (a)(5) of this 
section. In addition, all new or replaced tanks where installation 
began after [effective date of rule] must be secondarily contained in 
accordance with paragraph (a)(6) of this section:
    (1) The tank is constructed of fiberglass-reinforced plastic; or

    Note to paragraph (a)(1): The following codes of practice may be 
used to comply with paragraph (a)(1) of this section:
    (A) Underwriters Laboratories Standard 1316, ``Glass-Fiber-
Reinforced Plastic Underground Storage Tanks for Petroleum Products, 
Alcohols, and Alcohol-Gasoline Mixtures''; or
    (B) Underwriter's Laboratories of Canada S615, ``Standard for 
Reinforced Plastic Underground Tanks for Flammable and Combustible 
Liquids''.

    (2) The tank is constructed of steel and cathodically protected in 
the following manner:
    (i) The tank is coated with a suitable dielectric material;
    (ii) Field-installed cathodic protection systems are designed by a 
corrosion expert;
    (iii) Impressed current systems are designed to allow determination 
of current operating status as required in 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, ``Standard for 
External Corrosion Protection Systems for Steel Underground Storage 
Tanks'';

[[Page 71764]]

    (C) Underwriters Laboratories of Canada S603, ``Standard for 
Steel Underground Tanks for Flammable and Combustible Liquids,'' and 
S603.1, ``Standard for External Corrosion Protection Systems for 
Steel Underground Tanks for Flammable and Combustible Liquids,'' and 
S631, ``Standard for Isolating Bushings for Steel Underground Tanks 
Protected with External Corrosion Protection Systems'';
    (D) Steel Tank Institute Standard F841, ``Standard for Dual Wall 
Underground Steel Storage Tanks''; or
    (E) NACE International Recommended Practice RP 0285, ``Corrosion 
Control of Underground Storage Systems by Cathodic Protection,'' and 
Underwriters Laboratories Standard 58, ``Standard for Steel 
Underground Tanks for Flammable and Combustible Liquids''.
    (3) The tank is constructed of steel and clad or jacketed with a 
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, ``Standard for 
External Corrosion Protection Systems for Steel Underground Storage 
Tanks'';
    (B) Steel Tank Institute Specification F894, ``ACT-100[supreg] 
Specification for External Corrosion Protection of FRP Composite 
Steel USTs'';
    (C) Steel Tank Institute Specification F961, ``ACT-100-U[supreg] 
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; or
    (6) The tank is secondarily contained. Secondary containment must 
be periodically tested in accordance with Sec.  280.36. Secondarily 
contained tanks must meet the following:
    (i) Be able to contain regulated substances leaked from the primary 
containment until they are detected and removed; and
    (ii) Be able to prevent the release of regulated substances to the 
environment at any time during the operational life of the UST system.

    Note to paragraph (a)(6): The following codes of practice may be 
used to comply with paragraph (a)(6) of this section:
    (A) Underwriters Laboratories Standard 58, ``Standard for Steel 
Underground Tanks for Flammable and Combustible Liquids'';
    (B) Underwriters Laboratories Standard 1316, ``Glass-Fiber-
Reinforced Plastic Underground Storage Tanks for Petroleum Products, 
Alcohols, and Alcohol-Gasoline Mixtures'';
    (C) Underwriters Laboratories Standard 1746, ``Standard for 
External Corrosion Protection Systems for Steel Underground Storage 
Tanks'';
    (D) Steel Tank Institute Standard F841, ``Standard for Dual Wall 
Underground Steel Storage Tanks''; or
    (E) Steel Tank Institute Specification F922, ``Steel Tank 
Institute Specification for Permatank[supreg]''.

    (b) Piping. The piping that routinely contains regulated substances 
and is in contact with the ground must be properly designed, 
constructed, and protected from corrosion in accordance with a code of 
practice developed by a nationally recognized association or 
independent testing laboratory as specified in paragraphs (b)(1) 
through (b)(4) of this section. In addition, except for suction piping 
that meets the requirements of 280.41(b)(1)(ii)(A) through (E) and 
piping associated with field-constructed tanks and airport hydrant fuel 
distribution systems, all new or replaced piping where installation 
began after [effective date of rule] must be secondarily contained in 
accordance with paragraph (b)(5) of this section. The entire piping run 
must be replaced when 50 percent or more of a piping run is replaced.
    (1) The piping is constructed of a 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, ``Standard for Non-
Metallic Underground Piping for Flammable Liquids''; or
    (B) Underwriters Laboratories of Canada Standard S660, '' 
Standard for Non-Metallic Underground Piping for Flammable 
Liquids''.

    (2) The piping is constructed of steel and cathodically protected 
in the following manner:
    (i) The piping is coated with a suitable dielectric material;
    (ii) Field-installed cathodic protection systems are designed by a 
corrosion expert;
    (iii) Impressed current systems are designed to allow determination 
of current operating status as required in 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 Petroleum Storage and 
Dispensing Systems'';
    (D) NACE International Standard Practice SP 0169, ``Control of 
External Corrosion on Underground or Submerged Metallic Piping 
Systems''; or
    (E) NACE International Recommended Practice RP 0285, ``Corrosion 
Control of Underground Storage Systems by Cathodic Protection''.

    (3) The piping is constructed of metal without additional corrosion 
protection measures provided that:
    (i) The piping is installed at a site that is determined by a 
corrosion expert to not be corrosive enough to cause it to have a 
release due to corrosion during its operating life; and
    (ii) Owners and operators maintain records that demonstrate 
compliance with the requirements of paragraph (b)(3)(i) of this section 
for the remaining life of the piping; or
    (4) The piping construction and corrosion protection are determined 
by the implementing agency to be designed to prevent the release or 
threatened release of any stored regulated substance in a manner that 
is no less protective of human health and the environment than the 
requirements in paragraphs (b)(1) through (3) of this section; or
    (5) The piping is secondarily contained. Secondary containment must 
be periodically tested in accordance with Sec.  280.36. Secondarily 
contained piping must meet the following:
    (i) Be able to contain regulated substances leaked from the primary 
containment until they are detected and removed; and
    (ii) Be able to prevent the release of regulated substances to the 
environment at any time during the operational life of the UST system.

    Note to paragraph (b)(5): The following codes of practice may be 
used to comply with paragraph (b)(5) of this section:
    (A) Underwriters Laboratories Standard 971, ``Standard for Non-
Metallic Underground Piping for Flammable Liquids''; or

[[Page 71765]]

    (B) Underwriters Laboratories Subject 971A, ``Outline of 
Investigation for Metallic Underground Fuel Pipe''.

    (c) Spill and overfill prevention equipment.
    (1) Except as provided in paragraphs (c)(2) and (c)(3) of this 
section, to prevent spilling and overfilling associated with product 
transfer to the UST system, owners and operators must use the following 
spill and overfill prevention equipment:
    (i) Spill prevention equipment that will prevent release of product 
to the environment when the transfer hose is detached from the fill 
pipe (for example, a spill catchment basin); and
    (ii) Overfill prevention equipment that will:
    (A) Automatically shut off flow into the tank when the tank is no 
more than 95 percent full; or
    (B) Alert the transfer operator when the tank is no more than 90 
percent full by restricting the flow into the tank or triggering a 
high-level alarm; or
    (C) Restrict flow 30 minutes prior to overfilling, alert the 
transfer operator with a high level alarm one minute before 
overfilling, or automatically shut off flow into the tank so that none 
of the fittings located on top of the tank are exposed to product due 
to overfilling.
    (2) Owners and operators are not required to use the spill and 
overfill prevention equipment specified in paragraph (c)(1) of this 
section if:
    (i) Alternative equipment is used that is determined by the 
implementing agency to be no less protective of human health and the 
environment than the equipment specified in paragraph (c)(1)(i) or (ii) 
of this section; or
    (ii) The UST system is filled by transfers of no more than 25 
gallons at one time.
    (3) Flow restrictors used in vent lines may not be used to comply 
with paragraph (c)(1)(ii) of this section when overfill prevention is 
installed or replaced after [effective date of rule].
    (4) Spill and overfill prevention equipment must be periodically 
tested in accordance with Sec.  280.35.
    (d) Installation. All tanks and piping must be properly installed 
in accordance with a code of practice developed by a nationally 
recognized association or independent testing laboratory and in 
accordance with the manufacturer's instructions.

    Note to paragraph (d): Tank and piping system installation 
practices and procedures described in the following codes of 
practice may be used to comply with the requirements of paragraph 
(d) of this section:
    (A) American Petroleum Institute Publication 1615, 
``Installation of Underground Petroleum Storage System'';
    (B) Petroleum Equipment Institute Publication RP100, 
``Recommended Practices for Installation of Underground Liquid 
Storage Systems''; or
    (C) National Fire Protection Association Standard 30, 
``Flammable and Combustible Liquids Code'' and Standard 30A, ``Code 
for Motor Fuel Dispensing Facilities and Repair Garages''.

    (e) Certification of installation. All owners and operators must 
ensure that one or more of the following methods of certification, 
testing, or inspection is used to demonstrate compliance with paragraph 
(d) of this section by providing a certification of compliance on the 
UST notification form in accordance with 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.
    (1) A dispenser system is considered new when both the dispenser 
and the equipment needed to connect the dispenser to the underground 
storage tank system are installed at an UST facility. The equipment 
necessary to connect the dispenser to the underground storage tank 
system includes check valves, shear valves, unburied risers or flexible 
connectors, or other transitional components that are beneath the 
dispenser and connect the dispenser to the underground piping.
    (2) Under-dispenser containment must be liquid-tight on its sides, 
bottom, and at any penetrations. Under-dispenser containment must allow 
for visual inspection and access to the components in the containment 
system or be continuously monitored for leaks from the dispenser 
system.

Sec.  280.21  Upgrading of existing UST systems.

    In accordance with subpart G of this part, owners and operators 
must permanently close any UST system that does not meet the new UST 
system performance standards in 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 
paragraph (e) of this section and where an upgrade is determined to be 
appropriate by the implementing agency.
    (a) Alternatives allowed. All existing UST systems must comply with 
one of the following requirements:
    (1) New UST system performance standards under 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.
    (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

[[Page 71766]]

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 Publication 1632, ``Cathodic 
Protection of Underground Petroleum Storage Tanks and Piping 
Systems''.

    Note to paragraph (b)(1)(ii): The following codes of practice 
may be used to comply with the periodic lining inspection 
requirement of this section:
    (A) American Petroleum Institute Recommended Practice 1631, 
``Interior Lining and Periodic Inspection of Underground Storage 
Tanks'';
    (B) National Leak Prevention Association Standard 631, ``Entry, 
Cleaning, Interior Inspection, Repair, and Lining of Underground 
Storage Tanks''; or
    (C) Ken Wilcox Associates Recommended Practice, ``Recommended 
Practice for Inspecting Buried Lined Steel Tanks Using a Video 
Camera''.

    (c) Piping upgrading requirements. Metal piping that routinely 
contains regulated substances and is in contact with the ground must be 
cathodically protected in accordance with a code of practice developed 
by a nationally recognized association or independent testing 
laboratory and must meet the requirements of Sec.  280.20(b)(2)(ii), 
(iii), and (iv).

    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 new UST system spill and overfill 
prevention equipment requirements specified in Sec.  280.20(c).
    (e) Upgrade requirements for previously deferred UST systems. 
Previously deferred wastewater treatment tank systems, airport hydrant 
fuel distribution systems, and UST systems with field-constructed tanks 
where installation commenced on or before [effective date of rule] must 
meet the following requirements according to the time table in subpart 
A or be permanently closed pursuant to subpart G of this part.
    (1) Corrosion protection. UST system components in contact with the 
ground that routinely contain regulated substances must meet one of the 
following:
    (i) The new UST system performance standards for tanks at 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 (e): The following codes of practice may be 
used to comply with this paragraph:
    (A) NACE International Recommended Practice RP 0285, ``Control 
of Underground Storage Tank Systems by Cathodic Protection'';
    (B) NACE International Standard Practice SP 0169, ``Control of 
External Corrosion on Underground or Submerged Metallic Piping 
Systems'';
    (C) National Leak Prevention Association Standard 631, ``Entry, 
Cleaning, Interior Inspection, Repair, and Lining of Underground 
Storage Tanks''; or
    (D) American Society for Testing and Materials Standard G158, 
``Standard Guide for Three Methods of Assessing Buried Steel 
Tanks''.

    (2) Spill and overfill prevention equipment. To prevent spilling 
and overfilling associated with product transfer to the UST system, all 
previously deferred UST systems must comply with new UST system spill 
and overfill prevention equipment requirements specified in 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.

    Note to paragraph (a): Owners and operators of UST systems that 
were in the ground on or after May 8, 1986, unless taken out of 
operation on or before January 1, 1974, were required to notify the 
designated state or local agency in accordance with the Hazardous 
and Solid Waste Amendments of 1984, Public Law 98-616, on a form 
published by EPA on November 8, 1985 (50 FR 46602) unless notice was 
given pursuant to section 103(c) of CERCLA. Owners and operators who 
have not complied with the notification requirements may use 
portions I through VI of the notification form contained in Appendix 
I of this part.

    (b) Within 30 days of acquisition, any person who assumes ownership 
of a regulated underground storage tank system, except as described in 
paragraph (a) of this section, must submit a notice of the ownership 
change to the implementing agency, using the form in Appendix II of 
this part.
    (c) In states where state law, regulations, or procedures require 
owners to use forms that differ from those set forth in Appendix I and 
Appendix II of this part to fulfill the requirements of this section, 
the state forms may be submitted in lieu of the forms set forth in 
Appendix I and Appendix II of this part. If a state requires that its 
form be used in lieu of the form presented in Appendix I and Appendix 
II of this part, such form must, at a minimum, collect the information 
prescribed in Appendix I and Appendix II of this part.
    (d) Owners required to submit notices under paragraph (a) or (b) of 
this section must provide notices to the appropriate

[[Page 71767]]

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.
    (h) Within 30 days of [Effective date of rule], all owners of 
previously deferred UST systems must submit a notice of tank system 
existence to the implementing agency, using the form in Appendix I of 
this part.
    6. In Sec.  280.30 revise the Note to read as follows:

Sec.  280.30  Spill and overfill control.

* * * * *

    Note: The transfer procedures described in National Fire 
Protection Association Standard 385, ``Standard for Tank Vehicles 
for Flammable and Combustible Liquids'' or American Petroleum 
Institute Recommended Practice 1007, ``Loading and Unloading of MC 
306/DOT 406 Cargo Tank Motor Vehicles'' may be used to comply with 
paragraph (a) of this section. Further guidance on spill and 
overfill prevention appears in American Petroleum Institute 
Recommended Practice 1621, ``Bulk Liquid Stock Control at Retail 
Outlets''.

* * * * *
    7. In Sec.  280.31 revise the introductory text and the Note to 
read as follows:

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:
* * * * *

    Note to paragraph (b): The following codes of practice may be 
used to comply with paragraph (b) of this section:
    (A) NACE International Test Method TM 0101, ``Measurement 
Techniques Related to Criteria for Cathodic Protection on 
Underground or Submerged Metallic Tank Systems'';
    (B) NACE International Test Method TM0497, ``Measurement 
Techniques Related to Criteria for Cathodic Protection on 
Underground or Submerged Metallic Piping Systems'';
    (C) Steel Tank Institute Recommended Practice R051, ``Cathodic 
Protection Testing Procedures for sti-P3 USTs'';
    (D) NACE International Recommended Practice RP 0285, ``Control 
of Underground Storage Tank Systems by Cathodic Protection''; or
    (E) NACE International Standard Practice SP 0169, ``Control of 
External Corrosion on Underground or Submerged Metallic Piping 
Systems''.

* * * * *
    8. Amend Sec.  280.32 to revise paragraph (a) and to add paragraphs 
(b) and (c) to read as follows:

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 storing any regulated substance containing 
greater than 10 percent ethanol or greater than 20 percent biodiesel, 
or any other regulated substance identified by the implementing agency, 
must use one or more of the following methods to demonstrate UST system 
compatibility with these regulated substances:
    (1) Certification or listing of UST system components by a 
nationally recognized, independent testing laboratory for use with the 
regulated substance stored;
    (2) Equipment or component manufacturer approval. The 
manufacturer's approval must be in writing, indicate an affirmative 
statement of compatibility, specify the range of biofuel blends the 
component is compatible with, and be from the equipment or component 
manufacturer; or
    (3) Another method determined by the implementing agency to be no 
less protective of human health and the environment than the methods 
listed in paragraphs (b)(1) or (b)(2) of this section.
    (c) Owners and operators must maintain the following records (in 
accordance with Sec.  280.34) for the life of the equipment or 
component:
    (1) Documentation of compliance with paragraph (b) of this section, 
as applicable; and
    (2) Records of all equipment or components installed or replaced 
after [effective date of rule]. At a minimum, each record must include 
the date of installation or replacement, manufacturer, and model.
    9. Revise Sec.  280.33 to read as follows:

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, 
``Safeguarding of Tanks and Containers for Entry, Cleaning, or 
Repair'';
    (E) National Leak Prevention Association Standard 631, ``Entry, 
Cleaning, Interior Inspection, Repair, and Lining of Underground 
Storage Tanks'';
    (F) Steel Tank Institute Recommended Practice R972, 
``Recommended Practice for the Addition of Supplemental Anodes to 
sti-P3[supreg] Tanks'';
    (G) NACE International Recommended Practice RP 0285, ``Control 
of Underground Storage Tank Systems by Cathodic Protection''; or
    (H) Fiberglass Tank and Pipe Institute Recommended Practice T-
95-02, ``Remanufacturing of Fiberglass Reinforced Plastic (FRP) 
Underground Storage Tanks''.

    (b) Repairs to fiberglass-reinforced plastic tanks may be made by 
the manufacturer's authorized representatives or in accordance with a 
code of practice developed by a nationally recognized association or an 
independent testing laboratory.
    (c) Metal pipe sections and fittings that have released product as 
a result of corrosion or other damage must be

[[Page 71768]]

replaced. Non-corrodible pipes and fittings may be repaired in 
accordance with the manufacturer's specifications.
    (d) Repaired tanks and piping must be tightness tested in 
accordance with 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 (4), of this section:
    (1) The repaired tank is internally inspected in accordance with a 
code of practice developed by a nationally recognized association or an 
independent testing laboratory; or
    (2) The repaired portion of the UST system is monitored monthly for 
releases in accordance with a method specified in Sec.  280.43(d) 
through (i);
    (3) UST systems with secondary containment must be tested as 
specified in Sec.  280.36 within 30 days following the completion of 
any repair. Tanks using interstitial sensors must be tested using a 
vacuum, pressure, or liquid method in accordance with one of the 
criteria listed in Sec.  280.36(a)(1)(ii) following any repair; or
    (4) Another test method is used that is determined by the 
implementing agency to be no less protective of human health and the 
environment than those listed above.
    (e) Within 6 months following the repair of any cathodically 
protected UST system, the cathodic protection system must be tested in 
accordance with 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 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.
    10. Revise Sec.  280.34 to read as follows:

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:
    (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) Reports of all releases including suspected releases (Sec.  
280.50), spills and overfills (Sec.  280.53), and confirmed releases 
(Sec.  280.61);
    (3) 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 ground-
water cleanup (Sec.  280.65), and corrective action plan (Sec.  
280.66); and
    (4) 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) Records for all UST system equipment installed or replaced 
after [effective date of rule] (Sec.  280.32(c));
    (5) Documentation of UST system repairs (Sec.  280.33(g));
    (6) Documentation of compliance for spill and overfill prevention 
equipment (Sec.  280.35(c));
    (7) Documentation of compliance for tanks, piping, and containment 
sumps using interstitial monitoring (Sec.  280.36(c));
    (8) Documentation of periodic walkthrough inspections (Sec.  
280.37(b));
    (9) Recent compliance with release detection requirements (Sec.  
280.45);
    (10) Results of the site investigation conducted at permanent 
closure (Sec.  280.74); and
    (11) 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 
above.
    11. Add Sec.  280.35 to Subpart C to read as follows:

Sec.  280.35  Periodic testing of spill and overfill prevention 
equipment.

    (a) Owners and operators of UST systems with spill and overfill 
prevention equipment must meet the following requirements to ensure the 
equipment is operating properly and will prevent releases to the 
environment:
    (1) Spill prevention equipment (such as a catchment basin, spill 
bucket, or other spill containment device) must prevent releases to the 
environment by meeting one of the following:
    (i) The spill prevention equipment has two walls and the space 
between the walls is monitored continuously to ensure the integrity of 
the inner and outer walls is maintained; or
    (ii) The spill prevention equipment is tested at installation and 
at least once every 12 months to ensure the spill prevention equipment 
is liquid tight by using vacuum, pressure, or liquid testing in 
accordance with one of the following criteria:
    (A) Requirements developed by the manufacturer (Note: Owners and 
operators may use this option only if the manufacturer has developed 
testing requirements);
    (B) Code of practice developed by a nationally recognized 
association or independent testing laboratory; or
    (C) Requirements determined by the implementing agency to be no 
less protective of human health and the environment than the 
requirements listed in paragraphs (a)(1)(ii)(A) and (B) of this 
section; and
    (2) Overfill prevention equipment must be tested at installation 
and at least once every three years. At a minimum, testing must ensure 
that overfill prevention equipment is set to activate at the correct 
level specified in Sec.  280.20(c) and will activate when regulated 
substance reaches that level. Testing must be conducted in accordance 
with one of the criteria in paragraph (a)(1)(ii) of this section.
    (b) Owners and operators must begin meeting these requirements as 
follows:
    (1) For UST systems in use on or before [Effective date of rule]:
    (i) Not later than [One year after effective date of rule] for 
spill prevention equipment; and
    (ii) For overfill prevention equipment, not later than the phase-in 
schedule in the following table:

[[Page 71769]]

                           Phase-In Schedule for Overfill Prevention Equipment Testing
----------------------------------------------------------------------------------------------------------------
                 Criteria                                Date by which first test must be  conducted
----------------------------------------------------------------------------------------------------------------
One or more USTs at the facility were       [1 year after effective date of rule].
 installed on or before 12/22/1988.
No USTs at the facility were installed on   [2 years after effective date of rule].
 or before 12/22/1988 and at least one UST
 at the facility was installed on or
 before 12/22/1998.
All USTs at the facility were installed     [3 years after effective date of rule].
 after 12/22/1998.
----------------------------------------------------------------------------------------------------------------

     (2) For UST systems brought into use after [Effective date of 
rule], these requirements apply at installation.
    (c) Owners and operators must maintain the following records (in 
accordance with Sec.  280.34) for spill and overfill prevention 
equipment:
    (1) All records of spill prevention equipment testing and overfill 
prevention equipment testing must be maintained for three years; and
    (2) For spill prevention equipment not tested every 12 months, 
documentation showing that the spill prevention equipment has two walls 
and is monitored continuously. Owners and operators must maintain this 
documentation for as long as the spill prevention equipment is 
monitored continuously, and for three additional years after continuous 
monitoring ends.
    12. Add Sec.  280.36 to Subpart C to read as follows:

Sec.  280.36  Periodic testing of secondary containment.

    (a) Owners and operators of UST systems with secondary containment 
using interstitial monitoring must ensure the integrity of all 
interstitial areas (including all containment sumps used for 
interstitial monitoring).
    (1) Tanks must meet one of the following:
    (i) The interstitial space is continuously monitored; or
    (ii) The interstitial space is not continuously monitored and the 
integrity of the interstitial space is ensured at least once every 
three years by using vacuum, pressure, or liquid testing in accordance 
with one of the following criteria:
    (A) Requirements developed by the manufacturer (Note: Owners and 
operators may use this option only if the manufacturer has developed 
integrity testing requirements);
    (B) Code of practice developed by a nationally recognized 
association or independent testing laboratory; or
    (C) Requirements determined by the implementing agency to be no 
less protective of human health and the environment than the 
requirements listed in paragraphs (a)(1)(ii)(A) and (B) of this 
section;
    (2) Piping must meet one of the following:
    (i) The interstitial space is continuously monitored using vacuum, 
pressure, or a liquid-filled interstitial space; or
    (ii) The interstitial space is monitored using an interstitial 
monitoring method not listed in paragraph (a)(2)(i) of this section and 
the integrity of the interstitial space is ensured at least once every 
three years by using vacuum, pressure, or liquid testing in accordance 
with one of the criteria listed in paragraph (a)(1)(ii) of this 
section; and
    (3) Containment sumps must meet one of the following:
    (i) The containment sump has two walls and the space between the 
walls is continuously monitored; or
    (ii) The containment sump is tested at least every three years to 
ensure the containment sump is liquid tight by using vacuum, pressure, 
or liquid testing in accordance with one of the criteria listed in 
paragraph (a)(1)(ii) of this section.

    Note to paragraphs (a)(1)(ii), (a)(2)(ii), and (a)(3)(ii): The 
following codes of practice may be used to comply with paragraphs 
(a)(1)(ii), (a)(2)(ii), and (a)(3)(ii) of this section:
    (A) Steel Tank Institute Recommended Practice R012, 
``Recommended Practice for Interstitial Tightness Testing of 
Existing Underground Double Wall Steel Tanks''; or
    (B) Fiberglass Tank and Pipe Institute Protocol, ``Field Test 
Protocol for Testing the Annular Space of Installed Underground 
Fiberglass Double and Triple-Wall Tanks with Dry Annular Space''.

    (b) Owners and operators of UST systems using interstitial 
monitoring must begin meeting this requirement as follows:
    (1) For UST systems in use on or before [Effective date of rule], 
not later than the phase-in schedule in the following table:

                                 Phase-In Schedule for Interstitial Area Testing
----------------------------------------------------------------------------------------------------------------
                 Criteria                                Date by which first test must be conducted
----------------------------------------------------------------------------------------------------------------
One or more USTs at the facility were       [1 year after effective date of rule].
 installed on or before 12/22/1988.
No USTs at the facility were installed on   [2 years after effective date of rule].
 or before 12/22/1988 and at least one UST
 at the facility was installed on or
 before 12/22/1998.
All USTs at the facility were installed     [3 years after effective date of rule].
 after 12/22/1998.
----------------------------------------------------------------------------------------------------------------

     (2) For UST systems brought into use after [Effective date of 
rule], these requirements apply at installation.
    (c) Owners and operators must maintain the following records (in 
accordance with Sec.  280.34) for the time frames indicated for each 
tank, piping, and containment sump that uses interstitial monitoring:
    (1) Records of interstitial space testing must be maintained for 
three years; or
    (2) As appropriate, records demonstrating: the tank is using 
continuous interstitial monitoring; the piping is using continuous 
interstitial monitoring with vacuum, pressure, liquid-filled 
interstitial space; and the containment sump has two walls and uses 
continuous interstitial monitoring. Owners and operators must maintain 
these records for as long as the tank, piping, or containment sump uses 
one of these continuous methods of interstitial monitoring, and for 
three additional years after continuous monitoring ends.
    13. Add Sec.  280.37 to Subpart C to read as follows:

Sec.  280.37  Periodic operation and maintenance walkthrough 
inspections.

    (a) To properly operate and maintain UST systems, owners and 
operators must meet one of the following:

[[Page 71770]]

    (1) Conduct a walkthrough inspection at least once every 30 days 
that, at a minimum and as appropriate to the facility, checks the 
following equipment as specified:
    (i) Spill prevention equipment--open and visually check for any 
damage; remove any liquid or debris; check each fill cap to make sure 
it is securely on the fill pipe; and for spill prevention equipment 
with continuous interstitial monitoring, check for a leak in the 
interstitial area,
    (ii) Sumps--open and visually check for any damage, leaks to the 
containment area, or releases to the environment; remove any liquid (in 
contained sumps) or debris; and for sumps with continuous interstitial 
monitoring, check for a leak in the interstitial area,
    (iii) Dispenser cabinets--open and visually check for any damage, 
leaks to the containment area, or releases to the environment; remove 
any liquid (in dispensers with under-dispenser containment) or debris; 
and for under-dispenser containment with continuous interstitial 
monitoring, check for a leak in the interstitial area,
    (iv) Monitoring/observation wells--check covers to make sure they 
are secured,
    (v) Cathodic protection--check to make sure impressed current 
cathodic protection rectifiers are on and operating; and ensure records 
of three year cathodic protection testing and 60 day impressed current 
system inspections are reviewed and current, and
    (vi) Release detection systems--check to make sure the release 
detection system is on and operating with no alarms or other unusual 
operating conditions present; check any devices such as tank gauge 
sticks, groundwater bailers, and hand-held vapor monitoring devices for 
operability and serviceability; and ensure records of release detection 
testing are reviewed monthly and current; or
    (2) Conduct operation and maintenance walkthrough inspections at 
least once every 30 days according to a standard code of practice 
developed by a nationally recognized association or independent testing 
laboratory that are comparable to (a)(1) of this section; or
    (3) Conduct operation and maintenance walkthrough inspections 
developed by the implementing agency that are comparable to paragraph 
(a)(1) of this section.
    (b) Owners and operators must maintain records (in accordance with 
Sec.  280.34) of operation and maintenance walkthrough inspections for 
one year. The record must include a listing of each area checked, 
whether each area checked was acceptable or needed to have any action 
taken, and a description of any actions taken to correct an issue.

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

    14. Revise Subpart D to read as follows:
Subpart D--Release Detection
Sec.
280.40 General requirements for all UST systems.
280.41 Requirements for petroleum UST systems.
280.42 Requirements for hazardous substance UST systems.
280.43 Methods of release detection for tanks.
280.44 Methods of release detection for piping.
280.45 Release detection recordkeeping.
280.46 Alternative methods of release detection for field-
constructed tanks.
280.47 Alternative methods of release detection for bulk piping.

Subpart D--Release Detection

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 [One year after effective date of rule], is 
operated and maintained, and electronic and mechanical components are 
tested for proper operation, in accordance with one of the following: 
Manufacturer's instructions; a code of practice developed by a 
nationally recognized association or independent testing laboratory; or 
requirements developed by the implementing agency. A test of the proper 
operation must be performed at least annually and, at a minimum and as 
applicable to the facility, cover the following components and 
criteria:
    (i) Automatic tank gauge and other controllers: Test alarm; verify 
system configuration; test battery backup;
    (ii) Probes and sensors: Inspect for residual buildup, ensure 
floats move freely; ensure shaft is not damaged; ensure cables are free 
of kinks, bends, and breaks; test alarm operability and communication 
with controller;
    (iii) Line leak detector: Test operation to meet criteria in Sec.  
280.44(a) by simulating a leak; inspect leak sensing o-ring; and
    (iv) Vacuum pumps and pressure gauges: Ensure proper communication 
with sensors and controller.
    (4) Meets the performance requirements in Sec.  280.43, Sec.  
280.44, Sec.  280.46, or Sec.  280.47, as applicable, with any 
performance claims and their manner of determination described in 
writing by the equipment manufacturer or installer. In addition, the 
methods listed in Sec.  280.43(b); Sec.  280.43(c); Sec.  280.43(d); 
Sec.  280.43(h); Sec.  280.43(i);Sec.  280.44(a); Sec.  280.44(b); 
Sec.  280.46; and Sec.  280.47, must be capable of detecting the leak 
rate or quantity specified for that method in the corresponding section 
of the rule with a probability of detection of 0.95 and a probability 
of false alarm of 0.05.
    (b) When a release detection method operated in accordance with the 
performance standards in Sec.  280.43, Sec.  280.44, Sec.  280.46, or 
Sec.  280.47 indicates a release may have occurred, owners and 
operators must notify the implementing agency in accordance with 
subpart E.
    (c) Owners and operators of Airport hydrant fuel distribution 
systems, UST systems with field-constructed tanks, and wastewater 
treatment tank systems must comply with the release detection 
requirements of this Subpart according to the following table:

[[Page 71771]]

   Schedule for Phase-In of Release Detection for Airport Hydrant Fuel
   Distribution Systems, UST Systems With Field-Constructed Tanks, and
                    Wastewater Treatment Tank Systems
------------------------------------------------------------------------
                                Time frame (after
     Type of UST system        [effective date of      Description of
                                     rule])              requirement
------------------------------------------------------------------------
Bulk piping associated with   Within three years..  Conduct one bulk
 airport hydrant fuel         Between years three    piping tightness
 distribution systems and      and six.              test according to
 field-constructed tanks                             Sec.   280.47(a)
 using Sec.   280.47(a) for                          using the maximum
 piping release detection.                           detectable leak
                                                     rates for
                                                     semiannual testing.
                                                     For bulk piping
                                                     segments not
                                                     capable of meeting
                                                     the up to 3.0
                                                     gallon per hour
                                                     leak rate, owners
                                                     and operators may
                                                     use a leak rate of
                                                     up to 6.0 gallons
                                                     per hour.
                             -------------------------------------------
                              Between years six     Conduct one bulk
                               and seven.            piping tightness
                                                     test according to
                                                     Sec.   280.47(a)
                                                     using the maximum
                                                     detectable leak
                                                     rates for
                                                     semiannual testing.
                             -------------------------------------------
                              After year seven....  Conduct bulk piping
                                                     tightness testing
                                                     according to Sec.
                                                     280.47(a).
------------------------------------------------------------------------
Bulk piping associated with   Within three years..  Perform release
 airport hydrant fuel                                detection according
 distribution systems and                            to this subpart.
 field-constructed tanks not
 using Sec.   280.47(a) for
 piping release detection.
------------------------------------------------------------------------
Underground tanks associated  Within three years..  Perform release
 with hydrant fuel                                   detection according
 distribution systems and                            to this subpart.
 field-constructed tanks.
------------------------------------------------------------------------
Wastewater treatment tank     Within three years..  Perform release
 systems.                                            detection according
                                                     to this subpart.
------------------------------------------------------------------------

    (d) Any UST system that cannot apply a method of release detection 
that complies with the requirements of this subpart must complete the 
closure procedures in subpart G. For previously deferred UST systems 
described in subpart A, this requirement applies after the effective 
date for subpart D described in Sec.  280.10(a)(1).

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 [effective date of rule] 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 or upgraded under Sec.  280.21(b), 
whichever is later;
    (ii) Tanks with capacity of 550 gallons or less and tanks with a 
capacity of 551 to 1,000 gallons that meet the tank diameter criteria 
in Sec.  280.43(b) may use manual tank gauging (conducted in accordance 
with Sec.  280.43(b));
    (iii) Field-constructed tanks greater than 50,000 gallons may use 
the alternative release detection requirements in Sec.  280.46; and
    (iv) Tanks using Sec.  280.43(e) or Sec.  280.43(f) to monitor for 
releases, must begin using one of the methods listed in Sec.  
280.43(d), (g), (h), or (i) not later than [Five years after effective 
date of rule].
    (2) Tanks installed after [effective date of rule] must be 
monitored for releases at least every 30 days in accordance with 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 [effective date of rule] must 
meet one of the following:
    (i) Pressurized piping. Underground piping that conveys regulated 
substances under pressure must:
    (A) Be equipped with an automatic line leak detector conducted in 
accordance with 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;
    (C) Only one check valve is included in each suction line;
    (D) The check valve is located directly below and as close as 
practical to the suction pump; and
    (E) A method is provided that allows compliance with paragraphs 
(b)(2)(ii)-(iv) of this section to be readily determined.
    (iii) Bulk piping. Underground piping associated with airport 
hydrant fuel distribution systems and field-constructed tanks must meet 
one of the following release detection requirements:
    (A) The requirements in paragraphs (b)(1)(i) or (ii) of this 
section; or
    (B) The alternative release detection requirements in Sec.  280.47.
    (2) Piping installed or replaced after [effective date of rule] 
must meet one of the following:
    (i) Pressurized piping must be monitored for releases at least 
every 30

[[Page 71772]]

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.
    (iii) Underground bulk piping associated with airport hydrant fuel 
distribution systems and field-constructed tanks must meet the 
requirements in paragraph (b)(1) 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 [effective date 
of rule].

    (b) Double-walled tanks must be designed, constructed, and 
installed to:
    (1) Contain a release from any portion of the inner tank within the 
outer wall; and
    (2) Detect the failure of the inner wall.
    (c) External liners (including vaults) must be designed, 
constructed, and installed to:
    (1) Contain 100 percent of the capacity of the largest tank within 
its boundary;
    (2) Prevent the interference of precipitation or ground-water 
intrusion with the ability to contain or detect a release of regulated 
substances; and
    (3) Surround the tank completely (i.e., it is capable of preventing 
lateral as well as vertical migration of regulated substances).
    (d) Underground piping must be equipped with secondary containment 
that satisfies the requirements of this section (e.g., trench liners, 
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 
[Effective date of rule] other methods of release detection may be used 
if owners and operators:
    (1) Demonstrate to the implementing agency that an alternate method 
can detect a release of the stored substance as effectively as any of 
the methods allowed in Sec. 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, except field-constructed tanks installed 
on or before [Effective date of rule] with capacities greater than 
50,000 gallons that meet Sec.  280.46, must be conducted in accordance 
with the following:
    (a) Inventory control. Product inventory control (or another test 
of equivalent performance) must be conducted monthly to detect a 
release of at least 1.0 percent of flow-through plus 130 gallons on a 
monthly basis in the following manner:
    (1) Inventory volume measurements for regulated substance inputs, 
withdrawals, and the amount still remaining in the tank are recorded 
each operating day;
    (2) The equipment used is capable of measuring the level of product 
over the full range of the tank's height to the nearest one-eighth of 
an inch;
    (3) The regulated substance inputs are reconciled with delivery 
receipts by measurement of the tank inventory volume before and after 
delivery;
    (4) Deliveries are made through a drop tube that extends to within 
one foot of the tank bottom;
    (5) Product dispensing is metered and recorded within the local 
standards for meter calibration or an accuracy of 6 cubic inches for 
every 5 gallons of product withdrawn; and
    (6) The measurement of any water level in the bottom of the tank is 
made to the nearest one-eighth of an inch at least once a month.

    Note to paragraph (a): Practices described in the American 
Petroleum Institute Recommended Practice RP 1621, ``Bulk Liquid 
Stock Control at Retail Outlets'' may be used, where applicable, as 
guidance in meeting the requirements of this paragraph.

    (b) Manual tank gauging. Manual tank gauging must meet the 
following requirements:
    (1) Tank liquid level measurements are taken at the beginning and 
ending of a period of at least 36 hours during which no liquid is added 
to or removed from the tank;
    (2) Level measurements are based on an average of two consecutive 
stick readings at both the beginning and ending of the period;
    (3) The equipment used is capable of measuring the level of product 
over the full range of the tank's height to the nearest one-eighth of 
an inch;
    (4) A release is suspected and subject to the requirements of 
subpart E if the variation between beginning and ending measurements 
exceeds the weekly or monthly standards in the following table:

----------------------------------------------------------------------------------------------------------------
                                         Minimum duration of     Weekly standard  (one   Monthly standard  (four
        Nominal tank capacity                    test                    test)                test average)
----------------------------------------------------------------------------------------------------------------
550 gallons or less..................  36 hours...............  10 gallons.............  5 gallons.
551-1,000 gallons (when tank diameter  44 hours...............  9 gallons..............  4 gallons.
 is 64'').
551-1,000 gallons (when tank diameter  58 hours...............  12 gallons.............  6 gallons.
 is 48'').
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).
----------------------------------------------------------------------------------------------------------------

    (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

[[Page 71773]]

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; and
    (2) The test must be performed with the system operating in one of 
the following modes:
    (i) In-tank static testing conducted on a periodic basis; or
    (ii) Continuous in-tank leak detection operating on an 
uninterrupted basis or operating within a process that allows the 
system to gather incremental measurements to determine the leak status 
of the tank at least once every 30 days.
    (e) Vapor monitoring. Testing or monitoring for vapors within the 
soil gas of the excavation zone must meet the following requirements:
    (1) The materials used as backfill are sufficiently porous (e.g., 
gravel, sand, crushed rock) to readily allow diffusion of vapors from 
releases into the excavation area;
    (2) The stored regulated substance, or a tracer compound placed in 
the tank system, is sufficiently volatile (e.g., gasoline) to result in 
a vapor level that is detectable by the monitoring devices located in 
the excavation zone in the event of a release from the tank;
    (3) The measurement of vapors by the monitoring device is not 
rendered inoperative by the ground water, rainfall, or soil moisture or 
other known interferences so that a release could go undetected for 
more than 30 days;
    (4) The level of background contamination in the excavation zone 
will not interfere with the method used to detect releases from the 
tank;
    (5) The vapor monitors are designed and operated to detect any 
significant increase in concentration above background of the regulated 
substance stored in the tank system, a component or components of that 
substance, or a tracer compound placed in the tank system;
    (6) In the UST excavation zone, the site is assessed to ensure 
compliance with the requirements in paragraphs (e)(1) through (4) of 
this section and to establish the number and positioning of monitoring 
wells that will detect releases within the excavation zone from any 
portion of the tank that routinely contains product; and
    (7) Monitoring wells are clearly marked and secured to avoid 
unauthorized access and tampering.
    (f) Ground-water monitoring. Testing or monitoring for liquids on 
the ground water must meet the following requirements:
    (1) The regulated substance stored is immiscible in water and has a 
specific gravity of less than one;
    (2) Ground water is never more than 20 feet from the ground surface 
and the hydraulic conductivity of the soil(s) between the UST system 
and the monitoring wells or devices is not less than 0.01 cm/sec (e.g., 
the soil should consist of gravels, coarse to medium sands, coarse 
silts or other permeable materials);
    (3) The slotted portion of the monitoring well casing must be 
designed to prevent migration of natural soils or filter pack into the 
well and to allow entry of regulated substance on the water table into 
the well under both high and low ground-water conditions;
    (4) Monitoring wells shall be sealed from the ground surface to the 
top of the filter pack;
    (5) Monitoring wells or devices intercept the excavation zone or 
are as close to it as is technically feasible;
    (6) The continuous monitoring devices or manual methods used can 
detect the presence of at least one-eighth of an inch of free product 
on top of the ground water in the monitoring wells;
    (7) Within and immediately below the UST system excavation zone, 
the site is assessed to ensure compliance with the requirements in 
paragraphs (f)(1) through (5) of this section and to establish the 
number and positioning of monitoring wells or devices that will detect 
releases from any portion of the tank that routinely contains product; 
and
    (8) Monitoring wells are clearly marked and secured to avoid 
unauthorized access and tampering.
    (g) Interstitial monitoring. Interstitial monitoring between the 
UST system and a secondary barrier immediately around or beneath it may 
be used, but only if the system is designed, constructed and installed 
to detect a leak from any portion of the tank that routinely contains 
product and also meets one of the following requirements:
    (1) For double-walled UST systems, the sampling or testing method 
can detect a release through the inner wall in any portion of the tank 
that routinely contains product;
    (2) For UST systems with a secondary barrier within the excavation 
zone, the sampling or testing method used can detect a release between 
the UST system and the secondary barrier;
    (i) The secondary barrier around or beneath the UST system consists 
of artificially constructed material that is sufficiently thick and 
impermeable (at least 10-6 cm/sec for the regulated 
substance stored) to direct a release to the monitoring point and 
permit its detection;
    (ii) The barrier is compatible with the regulated substance stored 
so that a release from the UST system will not cause a deterioration of 
the barrier allowing a release to pass through undetected;
    (iii) For cathodically protected tanks, the secondary barrier must 
be installed so that it does not interfere with the proper operation of 
the cathodic protection system;
    (iv) The ground water, soil moisture, or rainfall will not render 
the testing or sampling method used inoperative so that a release could 
go undetected for more than 30 days;
    (v) The site is assessed to ensure that the secondary barrier is 
always above the ground water and not in a 25-year flood plain, unless 
the barrier and monitoring designs are for use under such conditions; 
and,
    (vi) Monitoring wells are clearly marked and secured to avoid 
unauthorized access and tampering.
    (3) For tanks with an internally fitted liner, an automated device 
can detect a release between the inner wall of the tank and the liner, 
and the liner is compatible with the substance stored.
    (4) For UST systems using continuous vacuum, pressure, or liquid-
filled methods of interstitial monitoring, the method must be capable 
of detecting a breach in both the inner and outer walls of the tank 
and/or piping.
    (h) Statistical inventory reconciliation. Statistically based 
testing or monitoring methods must meet the following requirements:
    (1) Report a quantitative result with a calculated leak rate;
    (2) Be capable of detecting a leak rate of 0.2 gallon per hour; and

[[Page 71774]]

    (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, except bulk piping that meets Sec.  
280.47, must be conducted in accordance with the following:
    (a) Automatic line leak detectors. Methods which alert the operator 
to the presence of a leak by restricting or shutting off the flow of 
regulated substances through piping or triggering an audible or visual 
alarm may be used only if they detect leaks of 3 gallons per hour at 10 
pounds per square inch line pressure within 1 hour. An annual test of 
the operation of the leak detector must be conducted in accordance with 
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;
    (b) The results of any sampling, testing, or monitoring must be 
maintained for at least 1 year, or for another reasonable period of 
time determined by the implementing agency, except as follows:
    (1) The results of annual operation tests conducted in accordance 
with 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 or bulk tank tightness 
testing conducted in accordance with Sec.  280.43(c) or Sec.  280.46 
must be retained until the next test is conducted; and
    (c) Written documentation of all calibration, maintenance, and 
repair of release detection equipment permanently located on-site must 
be maintained for at least one year after the servicing work is 
completed, or for another reasonable time period determined by the 
implementing agency. Any schedules of required calibration and 
maintenance provided by the release detection equipment manufacturer 
must be retained for 5 years from the date of installation.

Sec.  280.46  Alternative methods of release detection for field-
constructed tanks.

    Owners and operators of field-constructed tanks with a capacity 
greater than 50,000 gallons may use one or a combination of the 
following alternative methods of release detection:
    (a) Conduct an annual bulk tank tightness test that can detect a 
0.5 gallon per hour leak rate;
    (b) Use an automatic tank gauging system to perform release 
detection at least every 30 days that can detect a leak rate less than 
or equal to one gallon per hour. This method must be combined with a 
bulk tank tightness test that can detect a 0.2 gallon per hour leak 
rate performed at least every three years;
    (c) Use an automatic tank gauging system to perform release 
detection at least every 30 days that can detect a leak rate less than 
or equal to two gallons per hour. This method must be combined with a 
bulk tank tightness test that can detect a 0.2 gallon per hour leak 
rate performed at least every two years; or
    (d) Another method approved by the implementing agency if the owner 
and operator can demonstrate that the method can detect a release as 
effectively as any of the methods allowed in paragraphs (a) through (c) 
of this section. In comparing methods, the implementing agency shall 
consider the size of release that the method can detect and the 
frequency and reliability of detection. If the method is approved, the 
owner and operator must comply with any conditions imposed by the 
implementing agency on its use.

Sec.  280.47  Alternative methods of release detection for bulk piping.

    Owners and operators of underground piping associated with airport 
hydrant fuel distribution systems and field-constructed tanks may use 
one or a combination of the following alternative methods of release 
detection:
    (a) Perform a semiannual or annual bulk line tightness test at or 
above operating pressure in accordance with the table below. Bulk 
piping segments >=100,000 gallons not capable of meeting the maximum 
3.0 gallon per hour leak rate for the semiannual test may be tested at 
a leak rate up to 6.0 gallons per hour according to the schedule in 
Sec.  280.40(c):

          Maximum Detectable Leak Rate per Test Section Volume
------------------------------------------------------------------------
                                    Semiannual test       Annual test
                                  maximum detectable  maximum detectable
  Test section volume (gallons)        leak rate           leak rate
                                  (gallons per hour)  (gallons per hour)
------------------------------------------------------------------------
=50,000 to =75,000 to =100,000.......................                3.0                 1.5
------------------------------------------------------------------------

[[Page 71775]]

     (b) Perform continuous interstitial monitoring designed to detect 
a release from any portion of the underground piping that routinely 
contains product in accordance with Sec.  280.43(g);
    (c) Use an automatic line leak detector that alerts the operator to 
the presence of a leak by restricting or shutting off flow of regulated 
substances through piping or triggering an audible or visual alarm. 
This method may be used only if it can detect a leak of three gallons 
per hour at 10 pounds per square inch line pressure within one hour or 
equivalent. When using this method, the following must also be met:
    (1) Perform interstitial monitoring, designed to detect a release 
from any portion of the underground piping that routinely contains 
product, in accordance with Sec.  280.43(g) at least every three 
months; and
    (2) Conduct an annual test of the operation of the leak detector in 
accordance with Sec.  280.40(a)(3); or
    (d) Another method approved by the implementing agency if the owner 
and operator can demonstrate that the method can detect a release as 
effectively as any of the methods allowed in paragraphs (a) through (c) 
of this section. In comparing methods, the implementing agency shall 
consider the size of release that the method can detect and the 
frequency and reliability of detection. If the method is approved, the 
owner and operator must comply with any conditions imposed by the 
implementing agency on its use.
    15. In Sec.  280.50 revise paragraphs (b) and (c) to read as 
follows:

Sec.  280.50  Reporting of suspected releases.

* * * * *
    (b) Unusual operating conditions observed by owners and operators 
(such as the erratic behavior of product dispensing equipment, the 
sudden loss of product from the UST system, an unexplained presence of 
water in the tank, or water or product in the interstitial space of 
secondarily contained systems), unless system equipment is found to be 
defective but not leaking, and is immediately repaired or replaced.
    (c) Monitoring results, including alarms, from a release detection 
method required under Sec.  280.41 and Sec.  280.42 that indicate a 
release may have occurred unless:
    (1) The monitoring device is found to be defective, and is 
immediately repaired, recalibrated or replaced, and additional 
monitoring does not confirm the initial result; or
    (2) In the case of inventory control, a second month of data does 
not confirm the initial result.
    16. In Sec.  280.52 revise paragraph (a) to read as follows:

Sec.  280.52  Release investigation and confirmation steps.

* * * * *
    (a) System test. Owners and operators must conduct tests (according 
to the requirements for tightness testing in Sec.  280.43(c) and Sec.  
280.44(b) or, for UST systems with secondary containment and 
interstitial monitoring, the integrity testing specified in Sec.  
280.36) that determine whether a leak exists in that portion of the 
tank that routinely contains product, the attached delivery piping, or 
a breach of the interstitial space.
    (1) If the system test confirms a leak, owners and operators must 
repair, replace, upgrade, or close the UST system. In addition, owners 
and operators must begin corrective action in accordance with subpart F 
if the test results for the system, tank, or delivery piping indicate 
that a release exists.
    (2) Further investigation is not required if the test results for 
the system, tank, and delivery piping do not indicate that a release 
exists and if environmental contamination is not the basis for 
suspecting a release.
    (3) Owners and operators must conduct a site check as described in 
paragraph (b) of this section if the test results for the system, tank, 
and delivery piping do not indicate that a release exists but 
environmental contamination is the basis for suspecting a release.
* * * * *
    17. In Sec.  280.71 revise the Note at the end of the section to 
read as follows:

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

* * * * *
    [Note: The following cleaning and closure procedures may be used 
to comply with this section:
    (A) American Petroleum Institute Recommended Practice RP 1604, 
``Closure of Underground Petroleum Storage Tanks'';
    (B) American Petroleum Institute Standard 2015, ``Requirements 
for Safe Entry and Cleaning of Petroleum Storage Tanks'';
    (C) American Petroleum Institute Recommended Practice 2016, 
``Guidelines and Procedures for Entering and Cleaning Petroleum 
Storage Tanks'';
    (D) American Petroleum Institute Recommended Practice RP 1631, 
``Interior Lining and Periodic Inspection of Underground Storage 
Tanks,'' may be used as guidance for compliance with this section;
    (E) National Fire Protection Association Standard 326, 
``Safeguarding of Tanks and Containers for Entry, Cleaning, or 
Repair''; and
    (F) The National Institute for Occupational Safety and Health 
Publication 80-106, ``Criteria for a Recommended Standard * * * 
Working in Confined Space'' may be used as guidance for conducting 
safe closure procedures at some hazardous substance tanks.]
* * * * *
    18. Revise Sec.  280.90 to read as follows:

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)(2) or 
(c)(3).
    (e) If the owner and operator of a petroleum underground storage 
tank are separate persons, only one person is required to demonstrate 
financial responsibility; however, both parties are liable in event of 
noncompliance.
    19. Revise Sec.  280.91 to read as follows:

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.  280.10.
    20. In Sec.  280.92 revise the definitions ``Accidental release,'' 
``Financial reporting year,'' and ``Provider of financial assurance'' 
to read as follows:

Sec.  280.92  Definition of terms.

* * * * *
    Accidental release means any sudden or nonsudden release of 
petroleum arising from operating an underground storage tank that 
results in a need for corrective action and/or compensation for bodily 
injury or property damage neither expected nor intended by the tank 
owner or operator.
* * * * *
    Financial reporting year means the latest consecutive twelve-month 
period for which any of the following reports used to support a 
financial test is prepared:
    (1) a 10-K report submitted to the SEC;
    (2) an annual report of tangible net worth submitted to Dun and 
Bradstreet; or
    (3) annual reports submitted to the Energy Information 
Administration or the Rural Utilities Service.

[[Page 71776]]

    ``Financial reporting year'' may thus comprise a fiscal or a 
calendar year period.
* * * * *
    Provider of financial assurance means an entity that provides 
financial assurance to an owner or operator of an underground storage 
tank through one of the mechanisms listed in Sec. Sec.  280.95-280.107, 
including a guarantor, insurer, risk retention group, surety, issuer of 
a letter of credit, issuer of a state-required mechanism, or a state.
* * * * *
    21. Revise Sec.  280.94 paragraph (a)(1) to read as follows:

Sec.  280.94  Allowable mechanisms and combinations of mechanisms.

    (a) * * *
    (1) An owner or operator, including a local government owner or 
operator, may use any one or combination of the mechanisms listed in 
Sec. Sec.  280.95 through 280.107 to demonstrate financial 
responsibility under this subpart for one or more underground storage 
tanks; and
* * * * *
    22. In Sec.  280.95 revise paragraph s(b)(1)(ii), (b)(4)(i), (c)(5) 
introductory text, (c)(5)(i) and (d) to read as follows:

Sec.  280.95  Financial test of self-insurance.

* * * * *
    (b) * * *
    (1) * * *
    (ii) The sum of the corrective action cost estimates, the current 
closure and post-closure care cost estimates, and amount of liability 
coverage for which a financial test is used to demonstrate financial 
responsibility to EPA under 40 CFR 264.101, 264.143, 264.145, 265.143, 
265.145, 264.147, and 265.147 or to a state implementing agency under a 
state program authorized by EPA under 40 CFR part 271; and
    (4) * * *
    (i) File financial statements annually with the U.S. Securities and 
Exchange Commission, the Energy Information Administration, or the 
Rural Utilities Service; or
* * * * *
    (c) * * *
    (5) If the financial statements of the owner or operator, and/or 
guarantor, are not submitted annually to the U.S. Securities and 
Exchange Commission, the Energy Information Administration or the Rural 
Utilities Service, the owner or operator, and/or guarantor, must obtain 
a special report by an independent certified public accountant stating 
that:
    (i) He has compared the data that the letter from the chief 
financial officer specifies as having been derived from the latest 
year-end financial statements of the owner or operator, and/or 
guarantor, with the amounts in such financial statements; and
* * * * *
    (d) To demonstrate that it meets the financial test under paragraph 
(b) or (c) of this section, the chief financial officer of the owner or 
operator, or guarantor, must sign, within 120 days of the close of each 
financial reporting year, as defined by the twelve-month period for 
which financial statements used to support the financial test are 
prepared, a letter worded exactly as follows, except that the 
instructions in brackets are to be replaced by the relevant information 
and the brackets deleted:

Letter from Chief Financial Officer

    I am the chief financial officer of [insert: name and address of 
the owner or operator, or guarantor]. This letter is in support of 
the use of [insert: ``the financial test of 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.  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.]

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                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?

[[Page 71777]]

 
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:].
12. Current assets...........................  $------
13. Current liabilities......................  $------
14. Net working capital [subtract line 13      $------
 from line 12].
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 part 280.95(d) as such regulations 
were constituted on the date shown immediately below.
    [Signature]
    [Name]
    [Title]
    [Date]
* * * * *
    23. In Sec.  280.96 revise paragraphs (b), (c)(3), and (d) to read 
as follows:

Sec.  280.96  Guarantee.

* * * * *
    (b) Within 120 days of the close of each financial reporting year 
the guarantor must demonstrate that it meets the financial test 
criteria of 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) * * *
    (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

[[Page 71778]]

agreement(s) up to the limits of coverage specified above.
* * * * *
    (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.
    24. In Sec.  280.97 revise paragraph (a) to read as follows:

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 retention 
group. Such insurance may be in the form of a separate insurance policy 
or an endorsement to an existing insurance policy.
* * * * *
    25. In Sec.  280.98 revise paragraphs (b) and (d) to read as 
follows:

Sec.  280.98  Surety bond.

* * * * *
    (b) The surety bond must be worded as follows, except that 
instructions in brackets must be replaced with the relevant information 
and the brackets deleted:

Performance Bond

Date bond executed:----------------------------------------------------
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, jointly and severally with 
the Principal, for the payment of such sums only as is set forth 
opposite the name of such Surety, but if no limit of liability is 
indicated, the limit of liability shall be the full amount of the 
penal sums.
    Whereas said Principal is required under Subtitle I of the Solid 
Waste Disposal Act, as amended, to provide financial assurance for 
[insert: ``taking corrective action'' and/or ``compensating third 
parties for bodily injury and property damage caused by'' either 
``sudden accidental releases'' or ``nonsudden accidental releases'' 
or ``accidental releases''; if coverage is different for different 
tanks or locations, indicate the type of coverage applicable to each 
tank or location] arising from operating the underground storage 
tanks identified above, and
    Whereas said Principal shall establish a standby trust fund as 
is required when a surety bond is used to provide such financial 
assurance;
    Now, therefore, the conditions of the obligation are such that 
if the Principal shall faithfully [``take corrective action, in 
accordance with 40 CFR part 280, subpart F and the Director of the 
state implementing agency's instructions for,'' and/or ``compensate 
injured third parties for bodily injury and property damage caused 
by'' either ``sudden accidental releases'' or ``nonsudden accidental 
releases'' or ``accidental releases''] arising from operating the 
tank(s) indentified above, or if the Principal shall provide 
alternate financial assurance, as specified in 40 CFR part 280, 
subpart H, within 120 days after the date the notice of cancellation 
is received by the Principal from the Surety(ies), then this 
obligation shall be null and void; otherwise it is to remain in full 
force and effect.
    Such obligation does not apply to any of the following:
    (a) Any obligation of [insert owner or operator] under a 
workers' compensation, disability benefits, or unemployment 
compensation law or other similar law;
    (b) Bodily injury to an employee of [insert owner or operator] 
arising from, and in the course of, employment by [insert owner or 
operator];
    (c) Bodily injury or property damage arising from the ownership, 
maintenance, use, or entrustment to others of any aircraft, motor 
vehicle, or watercraft;
    (d) Property damage to any property owned, rented, loaned to, in 
the care, custody, or control of, or occupied by [insert owner or 
operator] that is not the direct result of a release from a 
petroleum underground storage tank;
    (e) Bodily injury or property damage for which [insert owner or 
operator] is obligated to pay damages by reason of the assumption of 
liability in a contract or agreement other than a contract or 
agreement entered into to meet the requirements of 40 CFR 280.93.
    The Surety(ies) shall become liable on this bond obligation only 
when the Principal has failed to fulfill the conditions described 
above.
    Upon notification by [the Director of the implementing agency] 
that the Principal has failed to [``take corrective action, in 
accordance with 40 CFR part 280, subpart F and the Director's 
instructions,'' and/or ``compensate injured third parties''] as 
guaranteed by this bond, the Surety(ies) shall either perform 
[``corrective action in accordance with 40 CFR part 280 and the 
Director's instructions,'' and/or ``third-party liability 
compensation''] or place funds in an amount up to the annual 
aggregate penal sum into the standby trust fund as directed by [the 
Regional Administrator or the Director] under 40 CFR 280.112.
    Upon notification by [the Director] that the Principal has 
failed to provide alternate financial assurance within 60 days after 
the date the notice of cancellation is received by the Principal 
from the Surety(ies) and that [the Director] has determined or 
suspects that a release has occurred, the Surety(ies) shall place 
funds in an amount not exceeding the annual aggregate penal sum into 
the standby trust fund as directed by [the Director] under 40 CFR 
280.112.
    The Surety(ies) hereby waive(s) notification of amendments to 
applicable laws, statutes, rules, and regulations and agrees that no 
such amendment shall in any way alleviate its (their) obligation on 
this bond.
    The liability of the Surety(ies) shall not be discharged by any 
payment or succession of payments hereunder, unless and until such 
payment or payments shall amount in the annual aggregate to the 
penal sum shown on the face of the bond, but in no event shall the 
obligation of the Surety(ies) hereunder exceed the amount of said 
annual aggregate penal sum.
    The Surety(ies) may cancel the bond by sending notice of 
cancellation by certified mail to the Principal, provided, however, 
that cancellation shall not occur during the 120 days beginning on 
the date of receipt of the notice of cancellation by the Principal, 
as evidenced by the return receipt.
    The Principal may terminate this bond by sending written notice 
to the Surety(ies).
    In Witness Thereof, the Principal and Surety(ies) have executed 
this Bond and have affixed their seals on the date set forth above.
    The persons whose signatures appear below hereby certify that 
they are authorized to execute this surety bond on behalf of the 
Principal and Surety(ies) and that the wording of this surety bond 
is identical to the wording specified in 40 CFR 280.98(b) as such 
regulations were constituted on the date this bond was executed.

[[Page 71779]]

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: $----------
* * * * *

    (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.
    26. In Sec.  280.99 revise paragraphs (b) and (c) to read as 
follows:

Sec.  280.99  Letter of credit.

* * * * *
    (b) The letter of credit must be worded as follows, except that 
instructions in brackets are to be replaced with the relevant 
information and the brackets deleted:

Irrevocable Standby Letter of Credit

[Name and address of issuing institution]
[Name and address of Director(s) of state implementing agency(ies)]

    Dear Sir or Madam: We hereby establish our Irrevocable Standby 
Letter of Credit No. ---------- 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.
* * * * *

    27. In Sec.  280.101 revise paragraph (d) to read as follows:

Sec.  280.101  State fund or other state assurance.

* * * * *
    (d) The Regional Administrator will notify the state of his 
determination regarding the acceptability of the state's fund or other 
assurance in lieu of financial mechanisms specified in this subpart. 
Within 60 days after the Regional Administrator notifies a state that a 
state fund or other state assurance is acceptable, the state must 
provide to each owner or operator for which it is assuming financial 
responsibility a letter or certificate describing the nature of the 
state's assumption of responsibility. The letter or certificate from 
the state must include, or have attached to it, the following 
information: The facility's name and address and the amount of funds 
for corrective action and/or for compensating third parties that is 
assured by the state. The owner or operator must maintain this letter 
or certificate on file as proof of financial responsibility in 
accordance with Sec.  280.111(b)(8).
    28. In Sec.  280.103 revise paragraph (b)(1) and the Trust 
Agreement introductory text and section 4 to read as follows:

Sec.  280.103  Standby trust fund.

* * * * *
    (b)(1) The standby trust agreement, or trust agreement, must be 
worded as follows, except that instructions in brackets are to be 
replaced with the relevant information and the brackets deleted:

Trust Agreement

    Trust agreement, the ``Agreement,'' entered into as of [date] by 
and between [name of the owner or operator], a [name of state] 
[insert ``corporation,'' ``partnership,'' ``association,'' or 
``proprietorship''], the ``Grantor,'' and [name of corporate 
trustee], [insert ``Incorporated in the state of ----------'' 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

[[Page 71780]]

damage caused by sudden and nonsudden accidental releases arising 
from the operation of the underground storage tank. The attached 
Schedule A lists the number of tanks at each facility and the 
name(s) and address(es) of the facility(ies) where the tanks are 
located that are covered by the [insert ``standby'' where trust 
agreement is standby trust agreement] trust agreement.
    [Whereas, the Grantor has elected to establish [insert either 
``a guarantee,'' ``surety bond,'' or ``letter of credit''] to 
provide all or part of such financial assurance for the underground 
storage tanks identified herein and is required to establish a 
standby trust fund able to accept payments from the instrument (This 
paragraph is only applicable to the standby trust agreement.)];
    Whereas, the Grantor, acting through its duly authorized 
officers, has selected the Trustee to be the trustee under this 
agreement, and the Trustee is willing to act as trustee;
    Now, therefore, the Grantor and the Trustee agree as follows:
* * * * *

Section 4. Payment for [``Corrective Action'' and/or ``Third-Party 
Liability Claims'']

    The Trustee shall make payments from the Fund as [the Director 
of the implementing agency] shall direct, in writing, to provide for 
the payment of the costs of [insert: ``taking corrective action'' 
and/or ``compensating third parties for bodily injury and property 
damage caused by'' either ``sudden accidental releases'' or 
``nonsudden accidental Releases'' or ``accidental releases''] 
arising from operating the tanks covered by the financial assurance 
mechanism identified in this Agreement.
    The Fund may not be drawn upon to cover any of the following:
    (a) Any obligation of [insert owner or operator] under a 
workers' compensation, disability benefits, or unemployment 
compensation law or other similar law;
    (b) Bodily injury to an employee of [insert owner or operator] 
arising from, and in the course of employment by [insert owner or 
operator];
    (c) Bodily injury or property damage arising from the ownership, 
maintenance, use, or entrustment to others of any aircraft, motor 
vehicle, or watercraft;
    (d) Property damage to any property owned, rented, loaned to, in 
the care, custody, or control of, or occupied by [insert owner or 
operator] that is not the direct result of a release from a 
petroleum underground storage tank;
    (e) Bodily injury or property damage for which [insert owner or 
operator] is obligated to pay damages by reason of the assumption of 
liability in a contract or agreement other than a contract or 
agreement entered into to meet the requirements of 40 CFR 280.93.
    The Trustee shall reimburse the Grantor, or other persons as 
specified by [the Director], from the Fund for corrective action 
expenditures and/or third-party liability claims in such amounts as 
[the Director] shall direct in writing. In addition, the Trustee 
shall refund to the Grantor such amounts as [the Director] specifies 
in writing. Upon refund, such funds shall no longer constitute part 
of the Fund as defined herein.
* * * * *
    29. Amend Sec.  280.104 as follows:
    a. By revising paragraph (b)
    b. By revising paragraph (d)
    c. By revising paragraph (e)
    d. By adding paragraph (h)

Sec.  280.104  Local government bond rating test.

* * * * *
    (b) A local government owner or operator or local government 
serving as a guarantor that is not a general-purpose local government 
and does not have the legal authority to issue general obligation bonds 
may satisfy the requirements of 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.
* * * * *
    (d) To demonstrate that it meets the local government bond rating 
test, the chief financial officer of a general purpose local government 
owner or operator and/or guarantor must sign a letter worded exactly as 
follows, except that the instructions in brackets are to be replaced by 
the relevant information and the brackets deleted:

Letter from Chief Financial Officer

    I am the chief financial officer of [insert: name and address of 
local government owner or operator, or guarantor]. This letter is in 
support of the use of the bond rating test to demonstrate financial 
responsibility for [insert: ``taking corrective action'' and/or 
``compensating third parties for bodily injury and property 
damage''] caused by [insert: ``sudden accidental releases'' or 
``nonsudden accidental releases'' or ``accidental releases''] in the 
amount of at least [insert: dollar amount] per occurrence and 
[insert: dollar amount] annual aggregate arising from operating (an) 
underground storage tank(s).
    Underground storage tanks at the following facilities are 
assured by this bond rating test: [List for each facility: the name 
and address of the facility where tanks are assured by the bond 
rating test].
    The details of the issue date, maturity, outstanding amount, 
bond rating, and bond rating agency of all outstanding bond issues 
that are being used by [name of local government owner or operator, 
or guarantor] to demonstrate financial responsibility are as 
follows: [complete table]

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Outstanding
                Issue date                        Maturity date               amount         Bond rating                   Rating agency
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           [Moody's or Standard & Poor's]
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The total outstanding obligation of [insert amount], excluding 
refunded bond issues, exceeds the minimum amount of $1 million. All 
outstanding general obligation bonds issued by this government that 
have been rated by Moody's or Standard & Poor's are rated as at 
least investment grade (Moody's Baa or Standard & Poor's BBB) based 
on the most recent ratings published within the last 12 months. 
Neither rating service has provided notification within the last 12 
months of downgrading of bond ratings below investment grade or of 
withdrawal of bond rating other than for repayment of outstanding 
bond issues.
    I hereby certify that the wording of this letter is identical to 
the wording specified in 40 CFR part 280.104(d) as such regulations 
were constituted on the date shown immediately below.

[Date]-----------------------------------------------------------------
[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

[[Page 71781]]

operating (an) underground storage tank(s). This local government is 
not organized to provide general governmental services and does not 
have the legal authority under state law or constitutional 
provisions to issue general obligation debt.
    Underground storage tanks at the following facilities are 
assured by this bond rating test: [List for each facility: the name 
and address of the facility where tanks are assured by the bond 
rating test].
    The details of the issue date, maturity, outstanding amount, 
bond rating, and bond rating agency of all outstanding revenue bond 
issues that are being used by [name of local government owner or 
operator, or guarantor] to demonstrate financial responsibility are 
as follows: [complete table]

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Outstanding
                Issue date                        Maturity date               amount         Bond rating                   Rating agency
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           [Moody's or Standard & Poor's]
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The total outstanding obligation of [insert amount], excluding 
refunded bond issues, exceeds the minimum amount of $1 million. All 
outstanding revenue bonds issued by this government that have been 
rated by Moody's or Standard & Poor's are rated as at least 
investment grade (Moody's Baa or Standard & Poor's BBB) based on the 
most recent ratings published within the last 12 months. The revenue 
bonds listed are not backed by third-party credit enhancement or 
insured by a municipal bond insurance company. Neither rating 
service has provided notification within the last 12 months of 
downgrading of bond ratings below investment grade or of withdrawal 
of bond rating other than for repayment of outstanding bond issues.
    I hereby certify that the wording of this letter is identical to 
the wording specified in 40 CFR part 280.104(e) as such regulations 
were constituted on the date shown immediately below.

[Date]-----------------------------------------------------------------
[Signature]------------------------------------------------------------
[Name]-----------------------------------------------------------------
[Title]----------------------------------------------------------------
* * * * *

    (h) If the local government owner or operator fails to obtain 
alternate assurance within 150 days of finding that it no longer meets 
the requirements of the bond rating test or within 30 days of 
notification by the Director of the implementing agency that it no 
longer meets the requirements of the bond rating test, the owner or 
operator must notify the Director of such failure within 10 days.
    30. In Sec.  280.105 revise paragraph (c) and the Letter From Chief 
Financial Officer to read as follows:

Sec.  280.105  Local government financial test.

* * * * *
    (c) To demonstrate that it meets the financial test under paragraph 
(b) of this section, the chief financial officer of the local 
government owner or operator, must sign, within 120 days of the close 
of each financial reporting year, as defined by the twelve-month period 
for which financial statements used to support the financial test are 
prepared, a letter worded exactly as follows, except that the 
instructions in brackets are to be replaced by the relevant information 
and the brackets deleted:

Letter From Chief Financial Officer

    I am the chief financial officer of [insert: name and address of 
the owner or operator]. This letter is in support of the use of the 
local government financial test to demonstrate financial 
responsibility for [insert: ``taking corrective action'' and/or 
``compensating third parties for bodily injury and property 
damage''] caused by [insert: ``sudden accidental releases'' or 
``nonsudden accidental releases'' or ``accidental releases''] in the 
amount of at least [insert: dollar amount] per occurrence and 
[insert: dollar amount] annual aggregate arising from operating [an] 
underground storage tank[s].
    Underground storage tanks at the following facilities are 
assured by this financial test [List for each facility: the name and 
address of the facility where tanks assured by this financial test 
are located. If separate mechanisms or combinations of mechanisms 
are being used to assure any of the tanks at this facility, list 
each tank assured by this financial test by the tank identification 
number provided in the notification submitted pursuant to 40 CFR 
part 280.22 or the corresponding state requirements.]
    This owner or operator has not received an adverse opinion, or a 
disclaimer of opinion from an independent auditor on its financial 
statements for the latest completed fiscal year. Any outstanding 
issues of general obligation or revenue bonds, if rated, have a 
Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating 
of AAA, AA, A, or BBB; if rated by both firms, the bonds have a 
Moody's rating of Aaa, Aa, A, or Baa and a Standard and Poor's 
rating of AAA, AA, A, or BBB.

Worksheet for Municipal Financial Test

Part I: Basic Information

    1. Total Revenues

a. Revenues (dollars)--------------------

    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)--------------------

[[Page 71782]]

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

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

    31. Amend Sec.  280.106 as follows:
    a. By revising paragraph (a)(1)
    b. By revising paragraph (b)
    c. By revising paragraph (d)(7)(d)
    d. By revising paragraph (e)(7)(d)
    e. By revising paragraph (e)(8)(d)

Sec.  280.106  Local government guarantee.

    (a) * * *
    (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 Sec.  280.104(e) to the 
local government owner or operator; or
* * * * *
    (b) If the local government guarantor is unable to demonstrate 
financial assurance under any of Sec.  Sec.  280.104, 280.105, 
280.107(a), 280.107(b), or 280.107(c), at the end of the financial 
reporting year, the guarantor shall send by certified mail, before 
cancellation or non-renewal of the guarantee, notice to the owner or 
operator. The guarantee will terminate no less than 120 days after the 
date the owner or operator receives the notification, as evidenced by 
the return receipt. The owner or operator must obtain alternative 
coverage as specified in Sec.  280.114(e).
* * * * *
    (d) * * *
    (7) * * *
    (d) Property damage to any property owned, rented, loaned to, in 
the care, custody, or control of, or occupied by [insert: local 
government owner or operator] that is not the direct result of a 
release from a petroleum underground storage tank;
* * * * *
    (e) * * *
    (7) * * *
    (d) Property damage to any property owned, rented, loaned to, in 
the care, custody, or control of, or occupied by [insert: local 
government owner or operator] that is not the direct result of a 
release from a petroleum underground storage tank;
* * * * *
    (8) * * *
    (d) Property damage to any property owned, rented, loaned to, in 
the care, custody, or control of, or occupied by [insert: local 
government owner or operator] that is not the direct result of a 
release from a petroleum underground storage tank;
* * * * *
    32. In Sec.  280.107 revise paragraph (d) to read as follows:

Sec.  280.107  Local government fund.

* * * * *
    (d) To demonstrate that it meets the requirements of the local 
government fund, the chief financial officer of the local government 
owner or operator and/or guarantor must sign a letter worded exactly as 
follows, except that the instructions in brackets are to be replaced by 
the relevant information and the brackets deleted:

Letter from Chief Financial Officer

    I am the chief financial officer of [insert: name and address of 
local government owner or operator, or guarantor]. This letter is in 
support of the use of the local government fund mechanism to 
demonstrate financial responsibility for [insert: ``taking 
corrective action'' and/or ``compensating third parties for bodily 
injury and property damage''] caused by [insert: ``sudden accidental 
releases'' or ``nonsudden accidental releases'' or ``accidental 
releases''] in the amount of at least [insert: dollar amount] per 
occurrence and [insert: dollar amount] annual aggregate arising from 
operating (an) underground storage tank(s).
    Underground storage tanks at the following facilities are 
assured by this local government fund mechanism: [List for each 
facility: the name and address of the facility where tanks are 
assured by the local government fund].
    [Insert: ``The local government fund is funded for the full 
amount of coverage required under 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:

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]
* * * * *

[[Page 71783]]

    33. In Sec.  280.109 revise paragraph (b) (3) to read as follows:

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

* * * * *
    (b) * * *
    (3) The evidence of the financial assistance mechanism subject to 
the termination maintained in accordance with Sec.  280.111(b).
    34. In Sec.  280.111 revise paragraphs (b)(9)(ii) and (iii) to read 
as follows:

Sec.  280.111  Recordkeeping.

* * * * *
    (b) * * *
    (9) * * *
    (ii) Year-end financial statements for the most recent completed 
financial reporting year showing the amount in the fund. If the fund is 
established under 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).
* * * * *
    35. Revise Sec.  280.113 to read as follows:

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, if corrective action is 
required, after corrective action has been completed and the tank has 
been permanently closed as required by 40 CFR part 280, subpart G.
    36. Add Subpart J to read as follows:

Subpart J--Operator Training

Sec.
280.240 General requirement for all UST systems.
280.241 Designation of operators.
280.242 Requirements for operator training.
280.243 Timing of operator training.
280.244 Retraining.
280.245 Documentation.

Subpart J--Operator Training

Sec.  280.240  General requirement for all UST systems.

    Not later than [Three years after effective date of rule], all 
owners and operators of UST systems must ensure they have designated 
Class A, Class B, and Class C operators who meet the requirements of 
this subpart.

Sec.  280.241  Designation of operators.

    UST system owners and operators must designate:
    (a) At least one Class A and one Class B operator for each UST or 
group of USTs at a facility; and
    (b) Each individual who meets the definition of Class C operator at 
the UST facility as a Class C operator. Class C operators must be 
employees of the UST system owner and operator.

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 (a)(2) of this 
section or pass a comparable examination in accordance with paragraph 
(e) of this section. Class A operators must receive training from an 
independent trainer.
    (1) At a minimum, the training program for the Class A operator 
must provide general knowledge of the requirements in this paragraph. 
At a minimum, the training must teach the Class A operators, as 
applicable, on the purpose, methods, and function of:
    (i) Spill and overfill prevention;
    (ii) Release detection;
    (iii) Corrosion protection;
    (iv) Emergency response;
    (v) Product and equipment compatibility;
    (vi) Financial responsibility;
    (vii) Notification and storage tank registration;
    (viii) Temporary and permanent closure;
    (ix) Related reporting and recordkeeping;
    (x) Environmental and regulatory consequences of releases; and
    (xi) Training requirements for Class B and Class C operators.
    (2) At a minimum, the training program must evaluate Class A 
operators to determine these individuals have the knowledge and skills 
to make informed decisions regarding compliance and determine whether 
appropriate individuals are fulfilling the operation, maintenance, and 
recordkeeping requirements for UST systems in accordance with paragraph 
(a)(1) of this section.
    (b) Class B operators. Each designated Class B operator must either 
receive training in accordance with paragraphs (b)(1) and (b)(2) of 
this section or pass a comparable examination, in accordance with 
paragraph (e) of this section. Class B operators must receive training 
from an independent trainer.
    (1) At a minimum, the training program for the Class B operator 
must cover either: General requirements that encompass all regulatory 
requirements and typical equipment used at UST facilities; or site-
specific requirements which address only the regulatory requirements 
and equipment specific to the facility. At a minimum, the training 
program for Class B operators must teach the Class B operator, as 
applicable, on the purpose, methods, and function of:
    (i) Operation and maintenance;
    (ii) Spill and overfill prevention;
    (iii) Release detection and related reporting;
    (iv) Corrosion protection and related testing;
    (v) Emergency response;
    (vi) Product and equipment compatibility;
    (vii) Reporting and recordkeeping;
    (viii) Environmental and regulatory consequences of releases; and
    (ix) Training requirements for Class C operator.
    (2) At a minimum, the training program must evaluate Class B 
operators to determine these individuals have the knowledge and skills 
to implement applicable UST regulatory requirements in the field on the 
components of typical UST systems or, as applicable, site-specific 
equipment used at an UST facility in accordance with paragraph (b)(1) 
of this section.
    (c) Class C operators. Each designated Class C operator must 
either: Be trained by a Class A or Class B operator in accordance with 
paragraphs (c)(1) and (c)(2) of this section; complete a training 
program in accordance with paragraphs (c)(1) and (c)(2) of this 
section; or pass a comparable examination, in accordance with paragraph 
(e) of this section.
    (1) At a minimum, the training program for the Class C operator 
must teach the Class C operators to take appropriate actions in 
response to:
    (i) Emergencies; and
    (ii) Alarms caused by spills or releases from the UST system.
    (2) At a minimum, the training program must evaluate Class C 
operators to determine these individuals have the knowledge and skills 
to take appropriate

[[Page 71784]]

action in response to emergencies (including situations posing an 
immediate danger or threat to the public or to the environment and that 
require immediate action) or alarms caused by spills or releases from 
an underground storage tank system.
    (d) Training program. Any training program must meet the minimum 
requirements of this section and include an evaluation through testing, 
a practical demonstration, or another approach acceptable to the 
implementing agency. The evaluation component of the training program 
must be developed and administered by an independent organization or 
the implementing agency or delegated authority.
    (e) Comparable Examination. A comparable examination must, at a 
minimum, test the knowledge of the Class A, Class B, or Class C 
operators in accordance with the requirements of paragraphs (a), (b), 
(c) of this section, as applicable. The examination must be developed 
and administered by an independent organization or the implementing 
agency or delegated authority.

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 requirements in Sec.  280.242 
according to the following schedule:

                                     Phase-In Schedule for Operator Training
----------------------------------------------------------------------------------------------------------------
                 Criteria                    Date when operator training or comparable  examination is required
----------------------------------------------------------------------------------------------------------------
One or more USTs at the facility were      [1 year after effective date of rule].
 installed on or before 12/22/1988.
No USTs at the facility were installed on  [2 years after effective date of rule].
 or before 12/22/1988 and at least one
 UST at the facility was installed on or
 before 12/22/1998.
All USTs at the facility were installed    [3 years after effective date of rule].
 after 12/22/1998.
----------------------------------------------------------------------------------------------------------------

     (b) Class A and Class B operators designated after the applicable 
effective date indicated in the schedule above must meet requirements 
in Sec.  280.242 within 30 days of assuming duties.
    (c) Class C operators designated after the applicable effective 
date indicated in the schedule above must be trained before assuming 
duties of a Class C operator.

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. 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, grants a waiver of 
this retraining requirement to 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 at the 
facility over the last three years; and
    (2) Include names, class of operator trained, date assumed duties, 
date each completed initial training, and any retraining.
    (b) Records verifying completion of training or retraining must be 
a paper or electronic record for Class A, Class B, and Class C 
operators. The records, at a minimum, must identify name of trainee, 
date trained, and operator training class completed. Owners and 
operators must maintain these records for as long as Class A, Class B, 
and Class C operators are designated. The following requirements also 
apply to the following types of training:
    (1) Records from classroom or field training programs or a 
comparable examination must, at a minimum, be signed by the trainer or 
examiner and list the printed name of the trainer or examiner and the 
company name, address, and phone number;
    (2) Records from computer-based training must, at a minimum, 
indicate the name of the training program and web address, if Internet-
based; and
    (3) Records of retraining must include those areas on which the 
Class A or Class B operator has been retrained.
    37. Appendix III to Part 280 is revised to read as follows:

Appendix III to Part 280--Statement for Shipping Tickets and Invoices

    Note. A federal law (the Solid Waste Disposal Act, as amended), 
requires owners of certain underground storage tanks to notify 
implementing agencies of the existence of their tanks. Notifications 
must be made within 30 days of bringing the tank into use. Consult 
EPA's regulations at 40 CFR 280.22 to determine if you are affected 
by this law.

BILLING CODE 6560-50-P

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BILLING CODE 6560-50-C

PART 281--APPROVAL OF STATE UNDERGROUND STORAGE TANK PROGRAMS

    38. Revise Part 281 to read as follows:

PART 281--APPROVAL OF STATE UNDERGROUND STORAGE TANK PROGRAMS

Subpart A--Purpose, General Requirements and Scope
Sec.
281.10 Purpose.
281.11 General requirements.
281.12 Scope and definitions.
Subpart B--Components of a Program Application
Sec.
281.20 Program application.
281.21 Description of state program.
281.22 Procedures for adequate enforcement.
281.23 Memorandum of agreement.
281.24 Attorney General's statement.
Subpart C--Criteria for No Less Stringent
Sec.
281.30 New UST system design, construction, installation, and 
notification.
281.31 Upgrading existing UST systems.
281.32 General operating requirements.
281.33 Release detection.
281.34 Release reporting, investigation, and confirmation.
281.35 Release response and corrective action.
281.36 Out-of-service UST systems and closure.
281.37 Financial responsibility for UST systems containing 
petroleum.
281.38 Lender liability.
281.39 Operator training.
Subpart D--Adequate Enforcement of Compliance
Sec.
281.40 Requirements for compliance program and authority.
281.41 Requirements for enforcement authority.
281.42 Requirements for public participation.
281.43 Sharing of information.
Subpart E--Approval Procedures
Sec.
281.50 Approval procedures for state programs.
281.51 Revision of approved state programs.
Subpart F--Withdrawal of Approval of State Programs
Sec.
281.60 Criteria for withdrawal of approval of state programs.
281.61 Procedures for withdrawal of approval of state programs.

    Authority: Sections 2002, 9004, 9005, 9006 of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act of 1976, as amended (42 U.S.C. 6912, 6991(c), (d), (e)).

Subpart A--Purpose, General Requirements and Scope

Sec.  281.10  Purpose.

    (a) This part specifies the requirements that state programs must 
meet for approval by the Administrator under Sec.  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 and/or hazardous 
substances in non-Indian country in accordance with this part.
    (3) Nothing in this subpart precludes a state from:
    (i) Adopting or enforcing requirements that are more stringent or 
more extensive than those required under this part; or
    (ii) Operating a program with a greater scope of coverage than that 
required under this part. Where an approved state program has a greater 
scope of coverage than required by federal law, the additional coverage 
is not part of the federally-approved program.
    (b) Definitions
    (1) The definitions in part 280 apply to this entire part.
    (2) For the purposes of this part the term ``final approval'' means 
the approval received by a state program that meets the requirements in 
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;
    (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;

[[Page 71792]]

    (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.

    Note to Sec.  281.20: EPA has designed an optional application 
form that is available for use by state applicants.

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 over Indian lands 
or has existing agreements with Indian Tribes relevant to the 
regulation of underground storage tanks.
    (b) The organization and structure of the state and local agencies 
with responsibility for administering the program. The jurisdiction and 
responsibilities of all state and local implementing agencies must be 
delineated, appropriate procedures for coordination set forth, and one 
state agency designated as a ``lead agency'' to facilitate 
communications between EPA and the state.
    (c) Staff resources to carry out and enforce the required state 
program elements, both existing and planned, including the number of 
employees, agency where employees are located, general duties of the 
employees, and current limits or restrictions on hiring or utilization 
of staff.
    (d) An existing state funding mechanism to meet the estimated costs 
of administering and enforcing the required state program elements, and 
any restrictions or limitations upon this funding.

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 on 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 Sec.  9003(i)(2) of the Solid Waste 
Disposal Act, then the state must meet the following:
    (1) Tanks and piping replaced or installed after the state's 
submission of its state program approval or revision application must 
use interstitial monitoring within secondary containment in accordance 
with Sec.  9003(i)(1) of the Solid Waste Disposal Act.
    (2) Motor fuel dispenser systems installed and connected to an UST 
system after the state's submission of its state program approval or 
revisions application must be equipped with under-dispenser containment 
in accordance with Sec.  9003(i)(1) of the Solid Waste Disposal Act.

    Note to paragraph (a): Codes of practice developed by 
nationally-recognized organizations and national independent testing 
laboratories may be used to demonstrate that the state program 
requirements are no less stringent in this area.;
    (b) Be provided with equipment to prevent spills and tank 
overfills when new tanks are installed or existing tanks are 
upgraded, unless the tank does not receive more than 25 gallons at 
one time. Flow restrictors used in vent lines are not allowable 
forms of overfill prevention when overfill prevention is installed 
or replaced after the state applies for state program approval or 
revision.
    (c) All UST system owners and operators must notify the 
implementing state agency of the existence of any new UST system and 
adequately notify the implementing state agency within a reasonable 
timeframe when assuming ownership of an UST system using a form 
designated by the state agency.

Sec.  281.31  Upgrading UST Systems.

    In order to be considered no less stringent than the corresponding 
federal upgrading requirements, the state must have requirements that 
ensure UST systems installed prior to the state applying for state 
program approval or revision meet the requirements of Sec.  281.30; are 
upgraded to prevent releases for their operating life due to corrosion, 
and spills, and overfills; or are permanently closed with the following 
exceptions:
    (a) Upgrade Requirements for Previously Deferred UST Systems. 
Previously deferred wastewater treatment tank systems, airport hydrant 
fuel distribution systems, and UST systems with field-constructed tanks 
where installation commenced before the state's submission of its state 
program approval or revision application must, within three years of 
the effective date of this section, as amended, or prior to the state's

[[Page 71793]]

submission of its state program approval or revision application, 
whichever date is later, meet the requirements of Sec.  281.30 or be 
permanently closed.
    (b) Upgrade Requirements for Other UST Systems. States may allow 
UST systems to be upgraded if the state determines that the upgrade is 
appropriate to prevent releases for the operating life of the UST 
system due to corrosion and spill or overfills.

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;
    (d) At the time of upgrade or repair, be structurally sound and 
upgraded or repaired in a manner that will prevent releases due to 
structural failure or corrosion during their operating lives;
    (e) Have spill and overfill prevention equipment periodically 
tested in a manner and frequency that ensures its functionality for 
the operating life of the equipment and have the integrity of 
secondary containment periodically tested in a manner and frequency 
that prevents releases during the operating life of the UST system, 
except on equipment not required to be tested by 40 CFR part 280.
    (f) Have operation and maintenance walkthrough inspections 
periodically conducted in a manner and frequency that ensures proper 
operation and maintenance for the operating life of the UST system.
    (g) Have records of monitoring, testing, repairs, and operation 
and maintenance walkthrough inspections. These records must be made 
readily available when requested by the implementing agency.

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 the 
federal technical standards--for as long as the UST system is in 
operation. In comparing methods, the implementing agency shall consider 
the size of release that the method can detect and the speed and 
reliability with which the release can be detected.
    (2) Designed, installed, calibrated, operated and maintained so 
that releases will be detected in accordance with the capabilities of 
the method;
    (3) Operated and maintained, and electronic and mechanical 
components are tested periodically, in a manner and frequency that 
ensures proper operation to detect releases for the operating life of 
the release detection equipment.
    (b) Phase-in of requirements. Release detection requirements must, 
at a minimum, be applied at all UST systems, except for UST systems 
previously deferred under Sec.  280.10(a)(1), prior to the state's 
submission of its state program approval or revision application. 
Release detection requirements must, at a minimum, be scheduled to be 
applied to previously deferred UST systems as follows:
    (1) Immediately when a new previously deferred UST system is 
installed, and
    (2) For any wastewater treatment tank system, airport hydrant fuel 
distribution system, or UST system with field constructed tanks 
installed prior to the state's submission of its state program approval 
or revision application, within three years of the effective date of 
this section, as amended, or prior to the state's submission of its 
state program approval or revision application, whichever date is 
later.
    (3) For any UST system that stores fuel solely for the use of 
emergency power generators that was installed prior to the state's 
submission of its state program approval or revision application, 
within one year of the effective date of this section, as amended, or 
prior to the state's submission of its state program approval or 
revision application, whichever date is later.
    (c) Requirements for Petroleum Tanks. All petroleum tanks must meet 
the following requirements:
    (1) All petroleum tanks must be sampled, tested, or checked for 
releases at least monthly, except that tanks (that is, tanks and piping 
protected from releases due to corrosion and equipped with both spill 
and overfill prevention devices) installed prior to the state's 
submission of its State Program Approval or revision application may 
temporarily use monthly inventory control (or its equivalent) in 
combination with tightness testing (or its equivalent) conducted every 
five years for the first 10 years after the tank is installed; and
    (2) New or replaced petroleum tanks must use interstitial 
monitoring within secondary containment in accordance with Sec.  
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 Sec.  9003(i)(2) of the 
Solid Waste Disposal Act.
    (d) Requirements for Petroleum Piping. All underground piping 
attached to the tank that routinely conveys petroleum must conform to 
the following:
    (1) If the petroleum is conveyed under greater than atmospheric 
pressure:
    (i) The piping must be equipped with release detection that detects 
a release within an hour by restricting or shutting off flow or 
sounding an alarm; and
    (ii) The piping must have monthly monitoring applied or annual 
tightness tests conducted.
    (2) If suction lines are used:
    (i) Tightness tests must be conducted at least once every 3 years, 
unless a monthly method of detection is applied to this piping; or
    (ii) The piping is designed to allow the contents of the pipe to 
drain back into the storage tank if the suction is released and is also 
designed to allow an inspector to immediately determine the integrity 
of the piping system.
    (3) New or replaced petroleum piping must use interstitial 
monitoring within secondary containment in accordance with Sec.  
9003(i)(1) of the Solid Waste Disposal Act except when the state 
requires evidence of financial responsibility and certification in 
accordance with Sec.  9003(i)(2) of the Solid Waste Disposal Act.
    (e) Requirements for Hazardous Substance UST Systems. All hazardous 
substance UST systems must use interstitial monitoring within secondary 
containment of the tanks and the attached underground piping that 
conveys the regulated substance stored in the tank. For hazardous 
substance UST systems installed prior to the state's submission of its 
state program

[[Page 71794]]

approval or revision application, owners and operators can use another 
form of release detection if the owner and operator can demonstrate to 
the state (or the state otherwise determines) that another method will 
detect a release of the regulated substance as effectively as other 
methods allowed under the state program for petroleum UST systems and 
that effective corrective action technology is available for the 
hazardous substance being stored that can be used to protect human 
health and the environment.

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 ground water, and any nearby surface 
waters. The extent of soil and ground-water contamination must be 
delineated when a potential threat to human health and the environment 
exists.
    (d) All releases from UST systems are cleaned up through soil and 
ground water remediation and any other steps, as necessary to protect 
human health and the environment;
    (e) Adequate information is made available to the state to 
demonstrate that corrective actions are taken in accordance with the 
requirements of paragraphs (a) through (d) of this section. This 
information must be submitted in a timely manner that demonstrates its 
technical adequacy to protect human health and the environment; and
    (f) In accordance with Sec.  280.67, the state must notify the 
affected public of all confirmed releases requiring a plan for soil and 
ground water remediation, and upon request provide or make available 
information to inform the interested public of the nature of the 
release and the corrective measures planned or taken.

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
    (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

[[Page 71795]]

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 Sec.  
9010 of the Solid Waste Disposal Act.

Subpart D--Adequate Enforcement of Compliance

Sec.  281.41  Requirements for Enforcement Authority.

    (a) Any state agency administering a program must have the 
authority to implement the following remedies for violations of state 
program requirements:
    (1) To restrain immediately and effectively any person by order or 
by suit in state court from engaging in any unauthorized activity that 
is endangering or causing damage to public health or the environment;
    (2) To sue in courts of competent jurisdiction to enjoin any 
threatened or continuing violation of any program requirement;
    (3) To assess or sue to recover in court civil penalties as 
follows:
    (i) Civil penalties for failure to notify or for submitting false 
information pursuant to tank notification requirements must be capable 
of being assessed up to $5,000 or more per violation.
    (ii) Civil penalties for failure to comply with any state 
requirements or standards for existing or new tank systems must be 
capable of being assessed for each instance of violation, up to $5,000 
or more for each tank for each day of violation. If the violation is 
continuous, civil penalties shall capable of being assessed up to 
$5,000 or more for each day of violation.
    (4) To prohibit the delivery, deposit, or acceptance of a regulated 
substance into an underground storage tank identified by the state to 
be ineligible for such delivery, deposit, or acceptance in accordance 
with Sec.  9012 of the Solid Waste Disposal Act.
    (b) The burden of proof and degree of knowledge or intent required 
under state law for establishing violations under paragraph (a)(3) of 
this section, must be no greater than the burden of proof or degree of 
knowledge or intent that EPA must provide when it brings an action 
under Subtitle I of the Solid Waste Disposal Act.
    (c) A civil penalty assessed, sought, or agreed upon by the state 
enforcement agency(ies) under paragraph (a)(3) of this section must be 
appropriate to the violation.

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), and assurance by the appropriate state enforcement agency 
that it will not oppose intervention under the state analogue to Rule 
24(a)(2) on the ground that the applicant's interest is adequately 
represented by the State.
    (b) Authority that allows intervention as of right in any civil 
action to obtain the remedies specified in 281.41 by any citizen having 
an interest that is or may be adversely affected; or
    (c) Assurance by the appropriate state agency that:
    (1) It will provide notice and opportunity for public comment on 
all proposed settlements of civil enforcement actions (except where 
immediate action is necessary to adequately protect human health and 
the environment);
    (2) It will investigate and provide responses to citizen complaints 
about violations; and
    (3) It will not oppose citizen intervention when permissive 
intervention is allowed by statute, rule, or regulation.

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, or final approval in accordance 
with Sec.  281.11.
    (b) Before submitting an application to EPA for approval of a state 
program, the state must provide an opportunity for public notice and 
comment in the development of its underground storage tank program.
    (c) When EPA receives a state program application, EPA will examine 
the application and notify the state whether its application is 
complete, in accordance with the application components required in 
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; in enough of the largest 
newspapers in the state to attract statewide attention; and to persons 
on the state agency mailing list and any other persons who the agency 
has reason to believe are interested. Notice of the tentative 
determination must also:
    (1) Afford the public 30 days after the notice to comment on the 
state's application and the Administrator's tentative determination; 
and

[[Page 71796]]

    (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 of Subtitle I 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; in 
enough of the largest newspapers in the state to attract statewide 
attention; and by mailing to persons on the state agency mailing list 
and to any other persons who the agency has reason to believe are 
interested. The public notice must summarize the state program 
revision, indicate whether EPA intends to approve or disapprove the 
revision, and provide for an opportunity to comment for a period of 30 
days.
    (2) The Administrator's decision on the proposed revision becomes 
effective 60 days after the date of publication in the Federal Register 
in accordance with paragraph (c)(1) of this section, unless significant 
negative comment opposing the proposed revision is received during the 
comment period. If significant negative comment is received, EPA must 
notify the state and within 60 days after the date of publication, 
publish in the Federal Register either:
    (i) A withdrawal of the immediate final decision, which will then 
be treated as a tentative decision in accordance with the applicable 
procedures of 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 least 90 days before the transfer, a plan for the orderly 
transfer of all relevant program information necessary for EPA to 
administer the program.
    (2) Within 30 days of receiving the state's transfer plan, EPA must 
evaluate the plan and identify any additional information needed by the 
federal government for program administration.
    (3) At least 30 days before the transfer is to occur, EPA must 
publish notice of the transfer in the Federal Register; in enough of 
the largest newspapers in the state to attract statewide attention; and 
to persons on appropriate state mailing lists.
    (b) The following procedures apply when the Administrator considers 
withdrawing approval.
    (1) When EPA begins proceedings to determine whether to withdraw 
approval of a state program (either on its own initiative or in 
response to a petition from an interested person), withdrawal 
proceedings will be conducted in accordance with procedures set out in 
40 CFR 271.23(b) and (c), except for 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. 2011-29293 Filed 11-17-11; 8:45 am]
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