An Act To Update the Laws Governing the Department of Environmental Protection's Rule-making Authority Concerning Underground Oil Storage Facilities To Align with Federal Regulations
Maine Legislature, Session 128, LD 1784
Committee: Environment and Natural Resources
Sponsors: KINNEY
Amends: 38 MRSA §563-B, 38 MRSA §564, 38 MRSA §566-A, 38 MRSA §570-F, 38 MRSA §570-N

Legislative Document
No. 1784
H.P. 1229
House of Representatives, January 16, 2018
An Act To Update the Laws Governing the Department of 
Environmental Protection's Rule-making Authority Concerning 
Underground Oil Storage Facilities To Align with Federal 
Regulations
Submitted by the Department of Environmental Protection pursuant to Joint Rule 203.
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
ROBERT B. HUNT
Clerk
Presented by Representative KINNEY of Limington.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §563-B, first ¶, as enacted by PL 1987, c. 491, §10, is 
amended to read:
In addition to the rule-making authorities otherwise set forth in this subchapter, the 
board department may adopt rules related to the following matters:
Sec. 2.  38 MRSA §563-B, sub-§2, as amended by PL 1991, c. 763, §3, is further 
amended to read:
2.  
Inventory reconciliation; precision testing; leak detection methods.  
Procedures and methods to be used in conducting statistical inventory analyses 
reconciliation, underground oil storage facility precision testing and other leak detection 
methods.  The rules must allow owners or operators of facilities undergoing routine 
monitoring in the absence of any other evidence of a leak:
A.  To check the accuracy of complete statistical inventory data within 75 30 days of 
receipt by the commissioner of the initial statistical analysis reconciliation by 
rerunning analyses reconciliations before inconclusive reports are considered to be a 
failure of the tank or piping;
B.  To check for failures in any mechanical and electronic monitoring devices within 
working days of an indication of failure before it is considered a failure of the tank 
or piping;
C.  To engage in procedures under paragraphs A and B before requiring the precision 
testing of facility components; and
D.  To check the accuracy of a failed or inconclusive precision test of facility 
components before the commissioner may order the excavation of the facility or any 
portion of the facility.  An owner or operator is allowed 2 weeks to schedule a repeat 
of the precision test;
Sec. 3.  38 MRSA §564, first ¶, as amended by PL 1989, c. 865, §10, is further 
amended to read:
The board department shall adopt rules necessary to minimize, to the extent 
practicable, the potential for discharges of oil from underground oil storage facilities and 
tanks used to store motor fuel or used in the marketing and distribution of oil to others.  
These rules must ensure that requirements and standards governing facilities under this 
section assure that the State's program meets requirements under the United States 
Resource Conservation and Recovery Act of 1976, Subtitle I, as amended.  These rules 
are limited to the following requirements.
Sec. 4.  38 MRSA §564, sub-§1-A, ¶¶A and B, as amended by PL 1991, c. 494, 
§4, are further amended to read:
A.  Monthly statistical inventory reconciliation of daily product inventory data and an 
annual precision test of all tanks and piping by an independent vendor using 
procedures approved by the United States Environmental Protection Agency.  
Pressurized piping must be retrofitted with an automated in-line leak detector; or
B.  Installation of one of the following leak detection systems:
(1)  Secondary containment of all underground oil storage facility components or 
secondary containment for the tank and single-walled containment for suction 
piping sloped evenly to the tank and equipped with a single check valve under the 
pump;
(2)  Continuous monitoring for free product in monitoring wells installed in the 
excavated area around the tank or tanks, and to detect a leak or discharge of oil 
from the piping not installed in accordance with subparagraph (1), one of the 
following:
(a)  Continuous vapor monitoring;
(b)  Annual tightness testing;
(c)  Secondary containment with interstitial space monitoring; or
(d)  Other methods of leak detection approved by the department;
(3)  Continuous vapor monitoring in the unsaturated zone of all elements of the 
facility, using sufficient sampling points to detect a leak or discharge of oil from 
any point in the facility;
(4)  Manual ground water sampling capable of detecting the presence of at least 
1/8 inch of free product on top of the ground water table in a reasonable number 
of ground water monitoring wells installed in the excavated area, and to detect a 
leak or discharge of oil from the product piping not installed in accordance with 
subparagraph (1), one of the following:
(a)  Continuous vapor monitoring;
(b)  Annual tightness testing;
(c)  Secondary containment with interstitial space monitoring; or
(d)  Other methods of leak detection approved by the department;
(5)  Automatic tank gauging that can detect a 0.2 gallon per hour loss, and to 
detect a leak or discharge of oil from product piping not installed in accordance 
with subparagraph (1), one of the following:
(a)  Continuous vapor monitoring;
(b)  Annual tightness testing;
(c)  Secondary containment with interstitial space monitoring; or
(d)  Other methods of leak detection approved by the department; or
(6)  Other leak detection systems approved by the department that can detect a 
0.2 gallon per hour leak rate or a leak of 150 gallons in 30 days with a 95% 
probability of detecting a leak and a 5% chance of false alarm.
Ground water monitoring for the detection of leaks may only be used to meet the 
requirements of this paragraph where the ground water table is never more than 20 
feet from the ground surface and the hydraulic conductivity of the soils between the 
tank and monitoring wells is not less than 0.01 centimeters per second.
Sec. 5.  38 MRSA §564, sub-§2-A, as amended by PL 2011, c. 317, §1, is further 
amended to read:
2-A.  Monitoring, maintenance and operating procedures for existing, new and 
replacement facilities and tanks.  The board's department's rules must require:
A.  Collection of inventory data for each day that oil is being added to or withdrawn 
from the facility or tank, reconciliation of the data, with monthly summaries, and 
retention of records containing all such data for a period of at least 3 years either at 
the facility or at the facility owner's place of business;
B.  Annual Monthly statistical inventory analysis reconciliation, the results of which 
must be reported to the commissioner.  Annual Monthly statistical inventory analysis 
reconciliation is not required for double-walled tanks equipped with interstitial space 
monitors;
C.  Voltage readings for cathodically protected systems by a cathodic protection 
tester 6 months after installation and annually thereafter;
D.  Monthly inspections by a cathodic protection tester of the rectifier meter on 
impressed current systems;
E.  Precision testing of any tanks and piping showing evidence of a possible leak.  
Results of all tests conducted must be submitted to the commissioner by the facility 
owner and the person who conducted the test;
F.  Proper calibration, operation and maintenance of leak detection devices;
G.  
Evidence of financial responsibility for taking corrective action and for 
compensating 3rd parties for bodily injury and property damage caused by sudden 
and nonsudden accidental discharges from an underground oil storage facility or tank;
H.  Reporting to the commissioner any of the following indications of a possible leak 
or discharge of oil:
(1)  Unexplained differences in daily inventory reconciliation values that, over a 
30-day period, exceed 1.0% of the product throughput;
(2)  Unexplained losses detected through statistical analysis reconciliation of 
inventory records;
(3)  Detection of product in a monitoring well or by other leak detection methods;
(4)  Failure of a tank or piping precision test, hydrostatic test or other tank or 
piping tightness test approved by the department; and
(5)  Discovery of oil on or under the premises or abutting properties, including 
nearby utility conduits, sewer lines, buildings, drinking water supplies and soil.
The rules may not require the reporting of a leak or discharge of oil above ground of 
gallons or less that occurs on the premises, including, but not limited to, spills, 
overfills and leaks, when those leaks or discharges do not reach groundwaters or 
surface waters of the State and are cleaned up within 24 hours of discovery, if a 
written log is maintained at the facility or the owner's place of business in this State.  
For each discharge the log must record the date of discovery, its source, the general 
location of the discharge at the facility, the date and method of cleanup and the 
signature of the facility owner or operator certifying the accuracy of the log;
I.  Compatibility of the materials from which the facility is constructed and the 
product to be stored;
J.  Owners and operators, upon request by the commissioner, to sample their 
underground oil tanks, to maintain records of all monitoring and sampling results at 
the facility or the facility owner's place of business and to furnish records of all 
monitoring and sampling results to the commissioner and to permit the commissioner 
or the commissioner's representative to inspect and copy those records;
K.  Owners and operators to permit the commissioner or the commissioner's 
designated representatives, including contractors, access to all underground oil 
storage facilities for all purposes connected with administering this subchapter, 
including, but not limited to, for sampling the contents of underground oil tanks and 
monitoring wells.  This right of access is in addition to any other granted by law; and
L.  Operators to complete a department training program that meets the minimum 
requirements specified by the United States Environmental Protection Agency under 
United States Code, Section 6991i (2007).  The training program must provide 
certification for the successful completion of the program, which must be renewed 
every 2 years.  Training may be provided by a 3rd party if approved by the 
department.
The requirements in paragraphs A and B do not apply to the following tanks provided as 
long as the associated piping has secondary containment or a suction pump product 
delivery system or another leak detection system approved by the commissioner and 
provided that as long as the tank and associated piping have been installed and are 
operated in accordance with the requirements of this subchapter, including rules adopted 
under this subchapter: tanks providing product to a generator; double-walled tanks with 
continuous interstitial space monitoring; and existing tanks constructed of fiberglass, 
cathodically protected steel or another commissioner-approved noncorrosive material that 
are monitored for a leak by a method able to detect a product loss or gain of 0.2 gallons or 
less per hour.
Sec. 6.  38 MRSA §564, sub-§6, as enacted by PL 2015, c. 361, §1, is amended to 
read:
6.  Retrofit of existing underground tanks.  The board's department's rules must 
allow a person to retrofit a single-walled underground oil storage tank with secondary 
containment as long as the retrofitted tank complies with Underwriters Laboratories 
Subject 1316 or 1856 and interstitial monitoring of the retrofitted tank is equal to or 
greater than interstitial monitoring of a new tank.  The board department shall require a 
site assessment of an underground oil storage facility when a tank is retrofitted in 
accordance with this subsection.
Sec. 7.  38 MRSA §566-A, sub-§1, as amended by PL 2011, c. 276, §2, is further 
amended to read:
1.  Abandonment.  All Except as provided by subsection 1-A, all underground oil 
storage facilities and tanks that have been, or are intended to be, taken out of service for a 
period of more than 24 12 months must be properly abandoned by the owner or operator 
of the facility or tank or, if the owner or operator is unknown, dissolved or insolvent, by 
the current owner of the property where the facility or tank is located.  All abandoned 
facilities and tanks must be removed, except where removal is not physically possible or 
practicable because the tank or other component of the facility to be removed is: 
A.  Located beneath a building or other permanent structure;
B.  Of a size and type of construction that it cannot be removed;
C.  Otherwise inaccessible to heavy equipment necessary for removal; or
D.  Positioned in such a manner that removal will endanger the structural integrity of 
nearby tanks.
Sec. 8.  38 MRSA §566-A, sub-§1-A, as amended by PL 2011, c. 276, §3, is 
further amended to read:
1-A.  Abandoned tanks brought back into service.  Underground oil storage tanks 
and facilities that have been out of service for a period of more than 24 12 months may 
not be brought back into service without the written approval of the commissioner.  The 
commissioner may approve the return to service if the owner demonstrates to the 
commissioner's satisfaction that:
A.  The facility is in compliance with this subchapter and rules adopted pursuant to 
this subchapter;
B.  The underground oil storage tanks and piping have successfully passed testing as 
directed by the commissioner; 
C.  The underground oil storage tanks and piping are constructed of fiberglass, 
cathodically protected steel or other equally noncorrosive material approved by the 
commissioner;
D.  The facility has conforming suction or double-walled pressurized piping; and
E.  The return of the facility to service does not pose an unacceptable risk to 
groundwater resources.  In determining if the facility poses an unacceptable risk to 
groundwater resources, the commissioner may consider the age and maintenance 
history of the storage tanks and piping, the number and consequences of past oil 
discharges from the tanks and piping, the proximity of the facility to drinking water 
supplies and the proximity of the facility to sensitive geologic areas.
The commissioner may not approve the return to service of a single-walled underground 
oil storage tank that has been out of service for more than 24 12 consecutive months.
Sec. 9.  38 MRSA §566-A, sub-§3, as amended by PL 1991, c. 88, §1, is further 
amended to read:
3.  Rulemaking.  The board department shall adopt rules allowing for the granting of 
a variance from the requirement of removal where abandonment by removal is not 
physically possible or practicable due to circumstances other than those listed in this 
subsection.  The board department shall adopt rules setting forth the proper procedures 
for abandonment of underground oil storage facilities and tanks, including requirements 
and procedures to conduct a site assessment for the presence of discharges of oil prior to 
completion of abandonment at facilities storing motor fuel or used in the marketing and 
distribution of oil, acceptable methods of disposing of the removed tanks, requirements 
for venting at least 12 feet above ground level flammable gases purged from tanks and 
from trucks removing oil from tanks and procedures for abandonment in place where 
removal of a tank or other component of a facility is determined not physically possible 
or practicable.
Sec. 10.  38 MRSA §570-F, as repealed and replaced by PL 1991, c. 494, §15 and 
affected by PL 1997, c. 374, §14, is amended to read:
§570-F.  Special provisions
This subchapter may not be construed to authorize the department to require 
registration of or to regulate the installation or operation of underground tanks used:
1.  Propane storage.  For the storage of propane; or
2.  Other structure.  As an oil-water separator, catch basin, flood drain or other 
emergency containment structure provided that as long as the structure:
A.  Is used to collect, capture or treat storm water surface runoff or oil spills; and
B.  Is not used for the storage of oil.; and
C.  Is regulated under the federal Clean Water Act, 33 United States Code, Section 
1317(b) or Section 1342.
The board department shall adopt rules for underground oil storage facilities for 
storing waste oil.  The board department shall also promulgate adopt rules governing 
field-constructed, airport hydrant and heavy oil underground oil storage facilities.  These 
rules are not limited by the other provisions of this subchapter II-B.
Sec. 11.  38 MRSA §570-N is enacted to read:
§570-N.  Rules; wastewater treatment tank systems
The department may adopt rules regulating wastewater treatment tank systems, 
including oil-water separators and catch basins, that meet the definition of "underground 
oil storage tank," except that this section does not apply to:
1.  Oil-water separators.  Oil-water separators and catch basins under section 570-F, 
subsection 2; and
2.  Storm water or wastewater collection.  Storm water or wastewater collection 
systems or flow-through tanks.
The department may adopt rules under this section for wastewater treatment tank 
systems relating to registration, tank construction, financial assurance and discharge 
response and corrective action.  Rules adopted pursuant to this section are routine 
technical rules as defined in Title 5, chapter 375, subchapter 2-A.
SUMMARY
This bill amends the laws governing the Department of Environmental Protection's 
rule-making authority pertaining to underground oil storage tanks.