* Lack of data to support an overfill prevention equipment testing requirement;
   * Suggestion to add inspection as an option due to concern about approaching an overfill condition in the tank when conducting testing;
   * Suggestion to use professional engineers in the UST program to develop and certify testing and inspection protocols;
   * Suggestion to think about how overfill operates and potentially coming up with new innovative ideas for overfill prevention methods; and
   * Concern about the lack of codes of practice for testing overfill prevention equipment.

Commenters: [0242, 0246, 0298, 0303, 0312, 0333, 0364, 0368, 0371, 0386, 0394, 0398, 0399, 0402, 0424]

EPA Response

Based on the comments received, EPA is revising the 2011 proposed UST regulation to require owners and operators have overfill prevention devices inspected instead of tested at least once every three years.  EPA agrees with commenters who suggested inspection rather than testing to avoid approaching an overfill condition in the tank.  EPA disagrees that inspection of overfill prevention equipment only at installation or no inspection at all is adequate to protect human health and the environment because overfill prevention devices have moving parts that can degrade over time, contractors may interact with the device during routine activity at the tank, and the device can be tampered with.  EPA believes a three year inspection frequency is adequate to ensure overfill prevention devices continue to operate properly.  EPA is not requiring annual inspections, as proposed by some commenters, because of the additional burden it would place on UST system owners and operators.

Although keeping the most recent two records would provide a better history of past compliance, EPA believes a three year requirement for UST system owners and operators to keep records is adequate.  The Energy Policy Act of 2005 requires UST facilities be inspected for compliance at least once every three years.  Since the overfill prevention equipment inspection requirement is once every three years, regulatory inspectors will only need to see proof that an overfill prevention equipment inspection was conducted since the previous visit.

Due to strong support not to phase in overfill prevention equipment inspections based on the age of the tank, EPA is revising the 2011 proposed UST regulation so implementation is based on a single date.  EPA is aligning implementation of overfill prevention equipment inspections with other new operation and maintenance requirements, which means the first inspection must be conducted within three years of the effective date of the final UST regulation.  In addition, EPA is aligning the inspection or test frequency, recordkeeping, and implementation of the new operation and maintenance requirements to the extent possible in the final UST regulation.

Several commenters were concerned about potential damage when removing overfill prevention equipment for inspection.  EPA asked several vendors who perform overfill prevention equipment inspections about the potential for damage during periodic overfill prevention equipment inspections.  The vendors indicated that seals may need to be replaced when removing the equipment, but that overfill prevention equipment itself will not easily be damaged during removal or reinstallation.  The vendors also indicated that replacing these seals will result in little or no cost to the owner and operator.

A few commenters raised concerns about periodic inspections causing facility down time and replacement costs for overfill prevention equipment.  EPA acknowledges that, in instances where overfill equipment access points are in the line of traffic, there could be a small amount of facility down time as a result of conducting the inspection; but EPA believes the benefit to the environment far outweighs the cost of potential down time.  To minimize the effects of down time, owners and operators can also schedule the inspection during low traffic times at the facility or when other routine maintenance occurs.  In addition, EPA expects owners and operators to have properly functioning overfill prevention equipment at all times and fix problems when they are discovered.  The overfill prevention equipment inspection may uncover a problem earlier, resulting in repair or replacement (and better protection from overfills) sooner rather than later.

EPA disagrees with commenters who said there was a lack of data supporting periodic inspection of overfill prevention equipment.  As noted in the preamble to the final UST regulation, two draft causes of release studies indicate that UST overfills account for about 15 percent of releases at UST facilities.  Properly operating overfill prevention devices will activate and alert delivery personnel before an overfill occurs.

One commenter suggested EPA consider alternatives to how overfill prevention equipment works.  EPA is not aware of any new or innovative approaches to preventing overfills, but welcomes effective alternatives to traditional overfill prevention equipment if it becomes available.

One commenter suggested EPA allow the use of professional engineers to develop and certify testing and inspection protocols.  Both the 1988 and revised UST regulations rely on codes of practice developed by nationally recognized associations or independent testing laboratories, manufacturer's requirements or instructions, and requirements determined by the implementing agency to be as protective of human health and the environment.  EPA believes these options provide test and inspection protocols that are consistent at both the local and national level.  Specifically allowing individual professional engineers to develop and certify their own testing and inspection protocols has a significant potential to make testing and inspections inconsistent both locally and nationally.  Professional engineers may participate in standard-making activities, assist in developing manufacturer's requirements, and participate in other activities that develop testing and inspection requirements under the current regulatory framework.  For these reasons, EPA believes it is unnecessary for professional engineers to develop and certify testing and inspection protocols.

Finally, in 2012 the Petroleum Equipment Institute (PEI) issued its recommended practice PEI RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities.  EPA reviewed this code of practice, believes it to be adequate for periodic inspection of overfill prevention equipment, and added it to the final UST regulation.

Proposal To Add Periodic Secondary Containment Testing Requirements

Summary

   * More than 80 commenters provided input on EPA's proposal to add periodic secondary containment testing requirements for tanks, piping, and containment sumps using interstitial monitoring for release detection  -  7 supported it; more than 20 opposed it
   * Some believed periodic secondary containment testing created a disincentive to upgrade older systems
   * Some questioned whether testing was necessary or cost effective

Support

Seven commenters voiced their support of the proposal.

Commenters: [0308, 0343, 0372, 0393, 0404, 0409, 0412]

Oppose

Twenty commenters opposed any requirements for periodic secondary containment testing of tanks, piping, and sumps.  Two commenters opposed testing containment sumps, because they can be visually inspected or have issues with testing existing containment sumps.  One commenter opposed testing currently installed piping.  Several commenters believed the record to support periodic secondary containment testing was inadequate.  Some commenters noted these concerns with periodic secondary containment testing:

   * Creates a disincentive for owners and operators to upgrade;
   * Would be difficult to perform (are there methods for testing these areas?);
   * Would be unfair to better systems;
   * Could damage secondary containment equipment;
   * Poses a significant burden while providing almost no increased environmental protection; and
   * Penalizes early installers of secondary containment.

Commenters: [0222, 0244, 0247, 0287, 0298, 0306, 0312, 0313, 0326, 0327, 0333, 0338, 0341, 0348, 0349, 0352, 0363, 0364, 0365, 0368, 0371, 0374, 0383, 0384, 0407, 0415, 0416, 0418, 0422, 0427]

Testing On New Versus Existing UST Systems

Several commenters supported periodic testing of both new and existing secondary containment systems.  Nine commenters did not believe it was good to apply periodic secondary containment testing to existing UST systems because standards were not in place for design and testing when these systems were installed.  Several commenters asked whether secondary containment testing would apply to both existing and new UST systems, or just new UST systems.

Commenters: [0238, 0239, 0300, 0303, 0312, 0313, 0332, 0363, 0380, 0384, 0387, 0427]

Three Year Testing Frequency

EPA asked commenters to provide input on the proposed three year frequency for conducting secondary containment testing.  Eight commenters believed a three year test frequency was adequate.  Three commenters believed one year was more appropriate.  Ten commenters believed a five year frequency was more appropriate.  Other suggestions included one and two years.  Several commenters suggested visual inspections instead of periodic testing.  Some commenters also suggested aligning all operation and maintenance testing frequencies for ease of testing.

Commenters: [0222, 0236, 0287, 0289, 0306, 0311, 0313, 0314, 0316, 0328, 0339, 0341, 0350, 0363, 0387, 0388, 0396, 0399, 0402, 0407, 0412, 0421]

Three Year Recordkeeping Time Frame

EPA asked commenters to provide input on the proposed three year recordkeeping time frame.  Six commenters indicated the three year recordkeeping time frame was adequate.  Four commenters suggested keeping records of the last two tests.  Other suggestions included keeping records for six years, the lifetime of the UST system, most recent year only, and the same period as other recordkeeping requirements.  Several commenters expressed concern that the recordkeeping requirement does not specify the types of records owners and operators need to keep.

Commenters: [0222, 0233, 0237, 0238, 0243, 0287, 0298, 0311, 0312, 0313, 0316, 0328, 0363, 0371, 0396, 0388, 0399]

Three Year Implementation Time Frame and Phase In Approach

EPA asked commenters to provide input on the proposed three year implementation and phase in approach based on tank age.  Eleven commenters suggested EPA eliminate the phase in approach based on tank age and move to a single implementation date.  Several commenters suggested giving older USTs the most time for implementation rather than the least time.  Some commenters also suggested EPA align implementation for periodic spill, overfill, and secondary containment testing.

Commenters: [0243, 0262, 0289, 0302, 0313, 0341, 0348, 0349, 0368, 0388, 0396, 0402, 0422]

Periodic Secondary Containment Testing For Tanks Using Continuous Interstitial Sensors

EPA asked commenters to provide input on whether the final UST regulation should require periodic secondary containment testing of tanks that use continuous interstitial sensors for release detection.  Twelve commenters said no.  One commenter said yes.  Several commenters said no for discriminating sensors and yes for non-discriminating sensors.

Commenters: [0222, 0233, 0238, 0243, 0311, 0313, 0316, 0328, 0339, 0341, 0388, 0399, 0396]

Other Comments

EPA also received these comments:

   * Suggestion EPA define continuous monitoring and interstitial monitoring;
   * Question asking why there was a difference between periodic testing requirements for tanks using continuous monitoring versus piping continuous monitoring;
   * Suggestion to require tanks with sensors to perform periodic secondary containment testing;
   * Suggestion sensors not be considered as continuous monitoring  -  just vacuum, pressure, and liquid filled options;
   * Request to clarify that sensors are considered continuous monitoring;
   * Suggestion the secondary containment testing requirement be removed when sensors are used for piping interstitial monitoring;
   * Suggestion to allow sump and piping interstitial be flooded with water for testing;
   * Suggestion the same testing not apply to smaller and low throughput UST systems;
   * Concern about a potential loophole for sump testing if crossover tubing is used;
   * Concern EPA did not consider allowing a double walled tank or pipe where one wall has failed to be allowed to be considered single walled;
   * Suggestion EPA clarify that under dispenser containment (UDC) needs to be tested if used for interstitial monitoring;
   * Suggestion to require testing of double walled containment sumps;
   * Suggestion to allow leak detection testing in lieu of secondary containment testing;
   * Suggestion to allow UST program professional engineers to develop and certify testing and inspection protocols;
   * Question about qualification requirements for testers;
   * Question about how to dispose of test water;
   * Question about whether sump penetrations need to be part of test (many would fail);
   * Suggestion EPA require most recent test to be passing;
   * Suggestion EPA provide additional details about the testing requirement and use of vacuum, pressure, and liquid options of testing;
   * Concern about the lack of codes of practice and that there are no evaluated performance standards for testing secondary containment areas and a suggestion EPA set a minimum performance standard; and
   * Editorial changes.

Commenters: [0210, 0236; 0238, 0239, 0242, 0243, 0264, 0267, 0298, 0312, 0313, 0316, 0317, 0326, 0332, 0334, 0336, 0339, 0342, 0344, 0349, 0352, 0364, 0368, 0371, 0372, 0375, 0377, 0383, 0386, 0392, 0394, 0396, 0399, 0400, 0401, 0404, 0409, 0415, 0421, 0422, 0424]

EPA Response

Based on the significant opposition commenters provided to the proposed periodic secondary containment testing, the final UST regulation does not require periodic secondary containment testing of secondarily contained tanks and piping.  EPA agrees that secondarily contained UST systems using interstitial monitoring are more protective of the environment than single walled UST systems.  In addition, EPA does not want to create a disincentive for owners and operators to replace older single walled UST systems with double walled systems.  However, EPA disagrees with commenters who suggested no periodic testing for containment sumps.  These areas function similar to spill containment equipment, containing leaks from piping and other components in the sump.  Containment sumps can degrade over time, resulting in releases to the environment.  In addition, containment sumps have piping and other components that come through the containment sump walls, increasing the likelihood that these areas are not liquid tight.  One commenter asked whether these penetration areas needed to be tested because many will fail.  Containment sumps need to be liquid tight so they will contain any regulated substances released from the primary wall of the piping.  Therefore, the final UST regulation requires periodic testing for both new and existing containment sumps used for interstitial monitoring.  This testing includes the penetrations.  Containment sumps used for reasons other than interstitial monitoring of piping do not have to meet the periodic testing requirement.  In addition, as with spill prevention equipment testing, EPA is not requiring periodic secondary containment testing of double walled containment sumps where the integrity of both walls is periodically monitored.  Periodically monitored means owners and operators must monitor the space between the two walls of the containment sump at a frequency consistent with, or more frequent than, the walkthrough inspection frequency.  Owners and operators who discontinue periodic monitoring of double walled containment sumps must conduct a containment sump test (and maintain the test record) within 30 days of discontinuing the periodic monitoring.  Finally, the final UST regulation requires secondary containment testing following any repair to the secondary containment areas of tanks and piping and as appropriate as part of release investigation and confirmation.

One commenter suggested that the same testing should not apply to small, lower throughput facilities.  However, these facilities have releases to the environment just like larger facilities.  Therefore, EPA is applying the same containment sump testing to both small, lower throughput facilities as for larger facilities.

The final UST regulation requires periodic testing of containment sumps at least once every three years.  EPA believes a three year testing frequency, when combined with periodic visual checks via the walkthrough inspection, is adequate to ensure containment sumps continue to operate properly.  In addition, three years is consistent with the spill and overfill prevention equipment testing requirements.

Based on strong opposition to phase in containment sump testing based on tank age, EPA is basing implementation on a single date.  The final UST regulation aligns implementing periodic containment sump testing with other new operation and maintenance requirements; this means owners and operators must conduct the first test within three years of the effective date of the final UST regulation.  In addition, EPA is aligning the test frequency, recordkeeping time frame, and implementation time frame for the new operation and maintenance requirements to the extent possible in the final UST regulation.

For recordkeeping, EPA believes a three year requirement for UST system owners and operators to maintain records is adequate.  The Energy Policy Act of 2005 requires UST facilities be inspected for compliance at least once every three years.  Since the containment sump testing requirement is once every three years, inspectors will only need to see the testing conducted since their last visit.

Some commenters expressed concern about testing existing systems because standards were not in place for design and testing when owners and operators installed these systems.  EPA agrees with these commenters for older secondarily contained tanks and piping.  However, EPA believes that both new and existing containment sumps used for interstitial monitoring need to be liquid tight so regulated substances can be contained and detected.  EPA acknowledges that some containment sumps may not pass the initial test.  Owners and operators will need to repair or replace failed containment.  EPA believes liquid tight sumps prevent releases from reaching the environment.  As with spill prevention equipment testing, EPA allows vacuum, pressure, or liquid filled methods to be used as options for testing containment sumps.

Some commenters suggested EPA add definitions for continuous monitoring and interstitial monitoring.  Since the final UST regulation uses the concept of periodic monitoring rather than continuous monitoring, EPA is not defining continuous monitoring.  The concept of interstitial monitoring was used in the 1988 UST regulation and remains the same in the final UST regulation.  In addition, both the 1988 UST regulation and the final UST regulation describe interstitial monitoring in detail in the release detection part of the regulation.  Therefore, EPA is not further defining interstitial monitoring.  Based on commenter input, EPA is adding to the final UST regulation a definition of containment sump, which addresses comments about what constitutes a containment sump.  The containment sump definition includes UDC resulting in a periodic testing requirement for UDC when used for interstitial monitoring of piping.

Some commenters raised concerns about disposal of test liquid following containment sump testing.  EPA contacted several vendors to determine whether they included disposal of test liquid as part of the testing.  Some vendors include handling of the test liquid as part of the test; they carry the test liquid with them and reuse it several times before disposal.  Others charge a separate cost or make sure the owner or operator has drums on site to dispose of the test liquid.  In addition, some vendors use vacuum testing, which eliminates the liquid from the test.  EPA considered test liquid disposal in the final UST regulation.

A few commenters raised concerns about facility down time and replacement costs for containment sumps as a result of testing.  EPA acknowledges that, in instances where access to the containment sump is in the line of traffic, there could be a small amount of facility down time as a result of testing; but EPA believes the benefit to the environment far outweighs the potential down time.  To minimize the effects of down time, owners and operators can also schedule the testing during low traffic times at the facility or when other routine maintenance occurs that requires opening containment sumps.  In addition, EPA expects owners and operators to have properly functioning containment sumps at all times when those containment sumps are used for piping interstitial monitoring and fix problems when they are discovered.  The containment sump test may uncover a problem earlier, resulting in repair or replacement of the containment sump (and better protection from releases) sooner rather than later.

Several commenters suggested requiring testing of all containment sumps, including double walled.  However, EPA believes owners and operators choosing to use double walled containment sumps, where the integrity of both walls is periodically monitored, is protective of the environment and a reasonable alternative to periodic testing.

One commenter asked about qualifications for testers.  The final UST regulation does not specify qualifications for persons testing containment sumps.  However, EPA expects testers to properly conduct tests according to a code of practice, manufacturer's instructions, or requirements established by the implementing agency.

One commenter suggested requiring the most recent test be a passing test.  EPA agrees and, although the regulation does not explicitly say it, a passing test is implicit to every test in the UST regulation.  Failure to have a passing test means the owner and operator out of compliance with the UST regulation.

One commenter suggested the final UST regulation allow professional engineers to develop and certify testing and inspection protocols.  The final UST regulation relies on codes of practice developed by nationally recognized associations or independent testing laboratories, manufacturer's requirements or instructions, and requirements determined by the implementing agency to be as protective of human health and the environment.  EPA believes these options provide test and inspection protocols that are consistent at both the local and national level.  Specifically allowing individual professional engineers to develop and certify their own testing and inspection protocols will potentially make testing and inspections inconsistent both locally and nationally.  Professional engineers may participate in standard-making activities, assist in developing manufacturer's requirements, and participate in other activities that develop testing and inspection requirements under the current regulatory framework.  For these reasons, EPA believes it is unnecessary to include professional engineers in the final UST regulation.

In 2012, the Petroleum Equipment Institute (PEI) issued its recommended practice PEI RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities.  EPA reviewed this code of practice, believes it to be adequate for periodic testing of containment sumps, and is adding it to the final UST regulation.  This code of practice contains information about vacuum and liquid methods as well as how to perform containment sump testing.  One commenter suggested allowing containment sumps and piping interstitial areas to be flooded with water for testing.  While EPA questions how to get the water back of the piping interstitial areas in some cases, if codes of practice would allow this method of testing, EPA would accept it.

Several commenters expressed concern about the lack of performance standards for testing secondary containment areas and suggested EPA set minimum performance standards.  It is very difficult for EPA to set a single performance standard because containment sumps are made in many shapes and sizes.  Therefore, EPA relies on test methods in codes of practice, developed by manufacturers, or set by the implementing agency to establish criteria for passing or failing a test.  For example, the 2012 edition of PEI RP1200 established one-eighth of an inch change over one hour as the pass or fail criteria for containment sumps.

One commenter expressed concern about a loophole for testing containment sumps.  If owners and operators use crossover tubing in the sump, regulated substances will flow through the crossover tubing to another area where the substances will be detected, rather than flowing into and being detected in the sump.  EPA understands when owners and operators use crossover tubing, the sump is not used for interstitial monitoring.  Only containment sumps used for interstitial monitoring need to meet the three year testing requirement.

Downgrading an UST system to single walled as one commenter suggested is less protective of the environment than secondarily contained UST systems.  In addition, interstitial monitoring cannot be used if the UST system is downgraded to a single walled UST system, and a double walled tank downgraded to a single walled tank would likely not meet the manufacturer's design intentions or warranty.

Proposal To Add Periodic Release Detection Equipment Testing Requirements

Summary

   * 42 commenters provided input on EPA's proposal to establish operation and maintenance requirements for release detection equipment  -  24 supported it; 6 opposed it
   * EPA received a variety of comments, and as a result, is making minor changes to the final requirements

Support

Twenty-four commenters, two of whom provided additional feedback, supported the proposal.

Commenters: [0222, 0233, 0237, 0238, 0243, 0265, 0283, 0284, 0302, 0311, 0313, 0316, 0338, 0341, 0343, 0348, 0388, 0396, 0399, 0363, 0404, 0413, 0422, 0427]

Oppose

Six commenters opposed the proposal.  One commenter opposed the lack of testing ATG in tank probes.  Another commenter said issues with installation are the main problem not, release detection equipment itself.  This commenter asserted that EPA was basing its requirements on anecdotal information from California and other states, which he felt are pushing their walkthrough requirements.  This commenter also said EPA was allowing unqualified, unskilled owners and operators to conduct maintenance and repairs on sophisticated equipment.

Several commenters believed testing requirements are unnecessary for other reasons:

   * The requirements involve additional costs to facilities
   * The 1988 UST regulation already requires installation, calibration, and operation and maintenance according to manufacturer's requirements
   * As EPA acknowledges, most operators currently maintain release detection equipment
   * Operator training will address identified concerns as well as improve significant operational compliance
   * Two commenters had concerns regarding the annual testing frequency

Commenters: [0305, 0315, 0326, 0383, 0399, 0402]

Sufficiency Of Proposed Minimum Requirements

EPA asked whether the proposed minimum operation and maintenance requirements are sufficient to cover release detection equipment on regulated UST systems.

Thirteen commenters responded yes without additional comment.  One commenter responded yes on the condition that equipment found to be defective or inoperable must be repaired within 30 days.

Commenters: [0222, 0233, 0237, 0238, 0243, 0265, 0311, 0313, 0363, 0388, 0396, 0399, 0413]

Additional Performance Tests To Consider

EPA asked whether there are additional performance tests we should consider.

Eight commenters responded no.  Three commenters suggested EPA add other requirements or restrictions.  One commenter suggested EPA test interstitial monitoring equipment every 12 months.  Another commenter asked EPA to require testing be performed only by a certified technician.  The other commenter suggested EPA add a periodic check of software.

Commenters: [0222, 0233, 0238, 0243, 0311, 0313, 0338, 0396, 0399]

Other Comments

EPA also received these comments:

   * Clarify what is meant by leak sensing O-ring
   * Require automatic line leak detectors be tested to 3 gallons per hour at 10 pounds per square inch line pressure within one hour
   * Change the term test to functionality test
   * EPA should allow self-testing
   * Make these changes to the regulatory language
         o Add recordkeeping requirement to § 280.40(a)(2) and (3) for clarity
         o Remove the term and in § 280.40(a)(3)
         o Add language to § 280.40(a)(3) to prohibit manufacturers from excluding electronic line leak detectors (ELLDs) from the annual test  -  no self-diagnostics are acceptable
         o Rewrite § 280.44 to prevent misinterpretation that all three requirements must be met
   * Perform the simulated leak for the automatic line leak detector at the dispenser furthest from the tank
   * Do not finalize without a code of practice available
   * Concern about manufacturer's instructions possibly being written to circumvent requirements and that manufacturers should have the right to accept or reject any code developed by an independent agency
   * Make various changes to testing frequency, phase-in period, and other indicated time frames
   * Concern that checks by third-party service providers are more effective compared to long checklists that can be easily falsified
   * Concern that the manner in which UST implementing agencies administer and enforce current requirements needs to be scrutinized

Commenters: [0243, 0248, 0287, 0289, 0290, 0305, 0306, 0313, 0316, 0326, 0328, 0338, 0343, 0368, 0394, 0404, 0407, 0416, 0422]

EPA Response

Based on the comments received, EPA is changing minor portions of the standardized operation and maintenance requirements for release detection equipment presented in the 2011 proposed UST regulations.  These changes, reflected in the final UST regulation, include:

   * Increasing time to implement the requirements to three years
   * Adding handheld electronic equipment associated with vapor and groundwater monitoring
   * Removing leak sensing O-ring from required components
   * Changing the term line leak detector to automatic line leak detector
   * Adding a note that Petroleum Equipment Institute's (PEI) RP1200 may be used to meet the testing requirements

Many commenters stated their support for EPA to standardize operation and maintenance requirements for release detection equipment.  One supporter said that although he was not opposed to EPA's testing requirements, automatic line leak detectors must currently be tested and suggested that annual testing for all electronic and mechanical equipment may not be necessary.  Another supporter questioned whether it is necessary to test all proposed components.  This supporter said failures of most of the listed components are rarely or never the reason a release goes undetected.  EPA agrees that the 1988 UST regulation requires annual testing of automatic line leak detectors according to the manufacturer's instructions.  However, some manufacturers' instructions indicate no testing is required.  In addition, release detection performance nationally remains well below an acceptable level.  A broader focus on release detection equipment is necessary.  With regard to exactly which components are responsible for poor performance of release detection, at this point no one knows for certain.  EPA maintains that a standard for all release detection equipment is necessary to address release detection categorically.  That is why EPA included standardized operation and maintenance requirements in the 2011 proposed UST regulation.  Ensuring that all release detection equipment is performing properly increases the likelihood of the earliest detection of releases to the environment.

Some commenters opposed the proposed release detection requirements.  One commenter stated that EPA is allowing unqualified, unskilled owners and operators to conduct maintenance and repairs on sophisticated equipment.  EPA intends for qualified individuals to perform the work of meeting operation and maintenance requirements.  Depending on the component, the qualified individual may be either a third-party service provider or an UST system owner or operator.  EPA thinks it is unnecessary to prescribe who must test which release detection component.

EPA disagrees with the commenter who suggested that automatic tank gauge (ATG) probes should not be tested.  These devices are one of the most critical components of an automatic tank gauging system.  The ATG will not detect a release if the probe does not work.  Although this component must be removed from the tank to be tested, most of the required testing activities specified can be accomplished by a relatively straightforward visual inspection or simple procedure.

One commenter suggested issues with installation are the main problem, rather than release detection equipment itself.  This commenter said EPA was basing its requirements on anecdotal information from California and states, which he thought are pushing their walkthrough requirements.  Periodic testing will identify installation issues associated with release detection equipment.  EPA is not basing its operation and maintenance requirements on anecdotal information from California and states pushing walkthrough requirements.  Rather, we are basing it on information from the California study, which supports EPA's position on release detection equipment testing requirements.  Ken Wilcox and Associates, a leading authority in the United States on release detection equipment, conducted the California study.

In the regulatory impact analysis (RIA), EPA addressed costs associated with the operation and maintenance requirement for release detection equipment.  One commenter stated that the 1988 UST regulation requires installation, calibration, and operation and maintenance according to manufacturer's requirements.  As EPA discussed in the 2011 proposed UST regulation, we did not provide specifics in the 1988 UST regulation on minimum requirements to ensure adequate operation and maintenance of release detection equipment.  In particular, see Section IV.B.5, which states: "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..."  EPA maintains the position that tests should be mandatory and not optional.

EPA disagrees with the commenter who stated:  "EPA acknowledges, most operators currently maintain release detection equipment."  EPA stated in the preamble to the 2011 proposed UST regulation:  "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."

EPA agrees with the commenter who stated that operator training helps improve release detection performance and will improve significant operational compliance at UST facilities.  However, EPA disagrees that operator training alone will sufficiently address all identified concerns with release detection equipment.  EPA maintains that, at a minimum, basic and standardized testing requirements are needed to increase the likelihood that all release detection equipment will function at optimal levels for as long as possible.

EPA asked whether the proposed minimum operation and maintenance requirements were sufficient to cover release detection equipment on regulated UST systems.  Most commenters responded yes without further comment.  One commenter responded yes on condition that defective or inoperable equipment must be repaired within 30 days.  EPA decided this specific requirement is unnecessary.  UST system owners and operators are required to provide a release detection method or combination of methods, which detect a release from any portion of the UST system containing product.  If release detection equipment is found to be defective or inoperable, it does not meet requirements in § 280.40.  Owners and operators have to repair or replace this equipment, regardless of whether or not that is specifically stated in the regulation.

EPA asked if there were additional performance tests we should consider.  Eight commenters responded no.  EPA received three suggested improvements, which included potential restrictions.  EPA decided not to include testing of interstitial monitoring areas every 12 months as suggested.  Sensors and pressure-vacuum pumps and gauges are parts of interstitial monitoring equipment; they are covered under the annual testing requirement.  EPA is emphasizing that those interstitial areas, such as sump areas and under dispenser containment, are part of the release detection system.  Owners and operators must conduct walkthrough inspections of these areas annually.

Another commenter requested that EPA require testing only by a certified technician.  As previously stated, EPA thinks certain components can be tested by third-party service providers or UST system owners and operators.  However, EPA thinks it is unnecessary to prescribe who must test specific components.  In addition, EPA thinks that adding a periodic check of software is unnecessary.  The requirement to verify system configuration of automatic tank gauging systems and other controllers indirectly covers testing software.  This will ensure programming is set up properly and associated equipment responds as intended.

In the 2011 proposed UST regulation, EPA suggested phasing out groundwater and vapor monitoring as methods of release detection.  However, EPA is continuing to allow these methods with some restrictions, as indicated in the final UST regulation.  For those owners and operators choosing groundwater or vapor monitoring as their method of release detection, EPA is requiring that hand-held electronic equipment such as photoionization devices meet the operation and maintenance requirements for release detection equipment.  Non electronic hand-held devices such as measuring sticks and groundwater bailers will be covered under the walkthrough inspection requirements.

EPA received a variety of other comments.  Commenters asked EPA to clarify what is meant by a leak sensing O-ring.  The O-ring is specific to the functional element on mechanical line leak detectors and is only present on some types of line leak detectors.  Further, all functional elements will be tested as part of the simulated leak test conducted at 3 gallons per hour at 10 pounds per square inch line pressure or equivalent for all line leak detectors.  Therefore, in the final UST regulation EPA is removing the leak sensing O-ring from the components to be tested.

A commenter asked EPA to require automatic line leak detectors be tested to 3 gallons per hour at 10 pounds per square inch line pressure within one hour.  The 2011 proposed UST regulation in § 280.40(a)(3)(iii) stated:  "Line leak detector: Test operation to meet criteria in § 280.44(a) by simulating a leak...".  The performance criteria in § 280.44(a) is 3 gallons per hour at 10 pounds per square inch line pressure within one hour.  The final UST regulation continues to reference the performance criteria as proposed.

One commenter noted his experience with testing which verified electrical circuitry, but during operation the connected device still did not function to its intended precision.  This commenter recommended EPA change the term test to functionality test.  EPA thinks this change is unnecessary.  The operation and maintenance requirements for release detection feature minimum performance criteria for testing.  Each method that may be used to meet the requirement (manufacturer's instructions, a code of practice, or requirements developed by the implementing agency) must, at a minimum, cover each listed component and the stated performance criteria.

Another commenter stated that EPA should allow self-testing.  EPA interprets this term to mean allowing self-diagnostic equipment.  EPA disagrees with this commenter.  EPA is concerned that the above circumstance with self-diagnostic equipment might verify electrical circuitry, but not actually test equipment functionality.  At a minimum, each component tested must meet the performance criteria.  The final UST regulation does not allow self-testing.

EPA received these comments with specific changes to the regulatory language.

   * Add recordkeeping requirement to § 280.40(a)(2) and (3) for clarity
   * Rewrite § 280.44 to prevent misinterpretation that all three requirements must be met
   * Add language to § 280.40(a)(3) to prohibit manufacturers from excluding ELLDs from the annual test  -  no self-diagnostic test is acceptable
   * Make an editorial correction to remove the term and in § 280.40(a)(3)

EPA thinks it is unnecessary to make changes to the recordkeeping requirement.  The recordkeeping requirement for subpart D is presented in § 280.45 and EPA thinks this section clearly identifies § 280.40(a)(2) and (3).  EPA also thinks the release detection requirements for pressurized piping in § 280.44 should not be changed.  They are part of the requirements for petroleum UST systems stated in § 280.41(b), which provides options UST system owners and operators can use to meet release detection for piping referenced in § 280.44.  To clarify that EPA's requirement for simulated testing of line leak detectors applies to electronic and mechanical line leak detectors, EPA is changing § 280.40(a)(3)(iii) to include the term automatic.  This will make the requirement consistent with how EPA has historically referenced both electronic and mechanical devices that are described by the term automatic line leak detectors in § 280.44(a).  Section 280.40(a)(3)(iii) applies the same to electronic and mechanical based line leak detectors.  EPA is making the editorial correction to § 280.40(a)(3).  This section reads: "...and, at a minimum as applicable to the facility...".

A commenter requested EPA require that the simulated leak test for line leak detectors be performed at the dispenser furthest from tank.  EPA obtained information from several third-party service providers who routinely perform automatic line leak detector testing.  In general, testing is performed at the furthest point from the tank, but not always.  EPA thinks that adding this level of specificity in the final UST regulation as to where the test needs to be conducted is unnecessary and could be counterproductive.  This detail should be provided, as needed, in the options owners and operators may use (manufacturer's instructions, code of practice, or requirements by implementing agency) to meet the operation and maintenance requirements.

One commenter stated that the operation and maintenance requirements should not be finalized without a code of practice available.  EPA agrees with the commenter.  EPA indicated in the 2011 proposed UST regulation that we would review a code of practice, which was under development at that time.  EPA reviewed and is including in the final UST regulation Petroleum Equipment Institute's final Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities (RP1200).

A commenter voiced concern about manufacturers writing instructions to possibly circumvent requirements and that manufacturers should have the right to accept or reject any code developed by an independent agency.  The 2011 proposed UST regulation included performance criteria for each required component.  These performance criteria remain in the final UST regulation.  This should make it difficult to circumvent intended testing.  Similar to other areas in the final UST regulation, EPA allows a code of practice developed by a nationally recognized association or independent testing laboratory to meet operation and maintenance requirements.  These organizations solicit and involve participation of regulators and industry in a consensus manner to develop and periodically revise codes of practice.  EPA encourages interested parties to participate in the standards development and revision processes.

Several commenters requested EPA make various changes to testing frequency; phase-in period; and other time frames indicated in the 2011 proposed regulation.  With regard to extending the implementation date, several commenters suggested extending the period from one year to three years, beyond one year for an unspecified time, and for two years noting manufacturers of numerous legacy equipment are unavailable and additional time will allow for developing codes of practice and regulatory agencies to establish requirements.  EPA considered these comments along with our goal to align all dates of compliance, which will foster easier and more convenient compliance.  EPA agrees with commenters and in the final UST regulation is extending to three years the implementation date for the operation and maintenance requirements for release detection equipment.

Several commenters also suggested changing the testing frequency of the operation and maintenance requirement.  Suggested changes were:

   * Phase in testing over three years based on installation date of equipment
   * Require testing three to five years after equipment installation, with commenter noting newly installed equipment works at optimal levels
   * Extend testing frequency of mechanical components to every three years

Commenters also suggested that only the most recent year's testing record should be maintained, with the commenter noting that this period is the only relevant one.  EPA's final UST regulation retains the annual testing frequency and three-year recordkeeping requirement, as presented in the 2011 proposed UST regulation.  EPA thinks it is crucial that the testing frequency be straightforward and performed with enough regularity as practical to ensure equipment remains working properly.  EPA also thinks a history of these records corresponding to the three year inspection period that most UST implementing agencies have adopted to meet the requirements of the Energy Policy Act of 2005 is necessary to ensure regularity is achieved.

Finally, EPA received comments concerning implementation of the operation and maintenance requirements for release detection equipment and general implementation of UST regulatory requirements.  One commenter believed that checks by third-party service providers are more effective when compared to long checklists that can be easily falsified.  Another commenter expressed concern that the manner in which UST implementing agencies administer and enforce current requirements needs to be scrutinized.  EPA will develop guidance to assist UST implementing agencies and UST system owners and operators to successfully meet the operation and maintenance requirements for release detection and other UST requirements in the final UST regulation.

Proposal To Remove The Deferral And Require Release Detection For UST Systems Storing Fuel Solely For Use By Emergency Power Generators

Summary

   * More than 30 commenters provided input on EPA's proposal to add release detection  requirements to UST systems storing fuel solely for use by emergency power generators (also referred to as emergency generator tanks or EGTs) -- 10 supported it; 3 opposed it
   * EGT universe:  Several commenters agreed with EPA's estimate that the EGT universe is at least 3 percent; most reported their individual state's EGT populations were over 3 percent
   * Number of EGTs with release detection installed:  Most commenters stated release detection is installed on over 50 percent of the EGTs in their individual states, but did not provide a national estimate
   * UST facilities with 10 or more EGTs installed at the site:  Commenters were unaware or could not verify; one commenter thought his state had one military facility or hospital with 10 or more EGTs
   * Technical concerns:  Some commenters expressed concern about possible challenges with performing release detection on these systems

Support

   * Ten commenters supported the proposal; individual commenters stated:
      o UST implementing agencies strongly supported removing the deferral for release detection
      o The cost of compliance for industry is minimal since most systems already have release detection
      o Eliminating the deferral was long overdue

Commenters: [0246, 0302, 0308, 0313, 0335, 0338, 0343, 0372, 0412, 0413]

Oppose

   * Three commenters opposed release detection requirements for EGTs, specifically:
      o Minimal releases from EGTs to soil are found at tank closure
      o Requirements for retail USTs should not apply because EGTs are smaller and present a lower risk of environmental harm; why is addressing potential impacts from heating oil tank releases not a priority
      o Release detection requirements should only apply if environmental benefits justify and outweigh the cost of compliance; EPA should not regulate until it is shown that deferred tanks and devices have not been well managed and have resulted in a significant history of releases

Commenters: [0311, 0339, 0422]

EGT Universe

EPA asked whether our estimate of 3 percent for UST systems storing fuel solely for use by EGTs is accurate.  Two commenters stated EPA's estimate is accurate, and two commenters provided counts greater than 3 percent for individual states.  Additionally, two commenters provided EGT counts less than 3 percent.  One commenter stated his UST implementing agency does not track data on EGTs.

Commenters: [0222, 0238, 0243, 0311, 0313, 0341]

Number Of EGTs With Release Detection Installed

EPA asked whether our estimate of 30 percent release detection on UST systems storing fuel solely for use by energy power generators is accurate.  Most commenters provided comments on individual UST implementing agencies' requirements:
   * Release detection is required and all EGTs have release detection, such as automatic tank gauging or daily inventory
   * Cannot verify older systems, but release detection was required since 2009
   * 50 to 60 percent have release detection
   * Release detection was required since 1986
   * 30 percent may be an overestimate, but in one state, EGTs with pressurized lines must have release detection

Commenters: [0222, 0237, 0238, 0243, 0311, 0313, 0328, 0399]

UST Facilities With 10 Or More EGTs Installed At The Site

EPA asked commenters how many UST facilities have 10 or more EGTs on site and who owns the facilities.  One commenter cited one military facility, which will require upgrades to meet the release detection requirement.  Most commenters were not aware of these facilities.  Two commenters stated they were unable to verify the number of these facilities.  One commenter was not aware of any facilities in his UST implementing agency's jurisdiction, but knew of banking data centers elsewhere with four or more EGTs on site.  One commenter stated facilities with 10 EGTs use aboveground storage tanks for emergency fuel supply.  One commenter was aware of a university and three military installations, which might have more than 10 EGTs.  Other commenters thought hospitals and utility companies would have 10 or more EGTs.

Commenters: [0222, 0238, 0243, 0311, 0313, 0421]

Technical Concerns

EPA asked for input on technical concerns we should address in requiring release detection for EGTs.  Six commenters believed there either were no issues or stated they were not aware of any.  One commenter stated his UST implementing agency does not allow annual tightness testing and owners and operators rely on automatic tank gauging or interstitial monitoring as release detection methods.

Commenters also suggested:

   * Continuous looped piping systems cannot be properly isolated or have a sufficient quiet period to perform a precision test when using automatic tank gauging
   * EGTs with copper piping pose issues due to system configurations
   * EPA should not allow statistical inventory reconciliation for release detection
   * Most EGTs are single walled and are limited to automatic tank gauging as the form of release detection
   * EGTs with day tanks and aboveground piping may need anti-siphon valves
   * EPA should require installation of electronic line leak detectors with positive system shutdown to avoid undetected leaks in pressurized piping connected to a day tank
   * EPA should clarify that automatic line leak detectors can only go in alarm mode and not restrict product flow during emergencies or crises

Commenters: [0222, 0237, 0238, 0243, 0265, 0311, 0313, 0316, 0348, 0399]

Other Comments

EPA received these additional comments:

   * Extend the implementation date
      o Should be three years to align with spill and overfill testing
         o          Should be five years
   * Require consistent phase-in
   * Support for requiring release detection on EGTs and for flexibility granted to UST implementing agencies for implementation; suggest greater flexibility for implementation in jurisdictions that have slightly different regulatory approaches or deadlines
   * Do not require notification, it is unnecessary
   * EPA should address the mission critical nature of these systems and define what is mission critical
   * Apply operator training and operation and maintenance to reduce risk of microbial contamination
   * Additional regulation is a burden on owners and operators
   * EPA has not made the case that regulations are necessary to prevent future releases
   * EPA is not under statutory authority to address deferrals

Commenters: [0243, 0246, 0262, 0301, 0302, 0311, 0313, 0335, 0338, 0350, 0368, 0380, 0385, 0394, 0396, 0402, 0421, 0422]

EPA Response

Based on comments, EPA is eliminating the deferral for release detection for UST systems storing fuel solely for use by emergency power generators.  EPA disagrees with commenters who said releases from these tanks result in only minimal environmental damages.  EPA also disagrees with the commenter who stated requirements should differ because these systems are smaller than retail USTs.  EPA reiterates that releases from UST systems pose an unacceptable threat to the environment.  Release detection enables UST system owners and operators to address environmental impacts early and avoid potentially catastrophic contamination.  Storage capacities for EGTs now range from 250 gallons to over 20,000 gallons and are configured much the same as conventional retail UST systems.  Some of these systems are safe suction systems, which do not require release detection.  In response to the commenter who asked why EPA has not addressed the universe of heating oil tanks, EPA responds that Subtitle I of the Solid Waste Disposal Act does not give us the authority to regulate heating oil tanks.

EPA obtained data through the comment process for the:

   * EGT universe
   * Number of EGTs with release detection installed
   * UST facilities with 10 or more EGTs installed at the site

Based on responses on individual state EGT populations, EPA confirms the estimate that EGTs comprise at least 3 percent of the tank universe in the United States.

Most commenters provided input on individual UST implementing agencies' requirements in response to whether EPA's estimate that 30 percent of EGTs have release detection is accurate.  One commenter believed the estimate could be overstated.  EPA reasserts its estimate that at least 30 percent of EGTs already have release detection.

Most commenters were unaware of specific facilities that have 10 or more EGT systems at a site, but a few commenters suggested utility companies, military installations, and hospitals might have 10 or more.  One commenter stated owners and operators use aboveground storage tanks at facilities with 10 or more EGTs.  Due to lack of information, EPA will not make any special considerations for facilities that may have 10 or more EGTs installed at a site.

Several commenters raised concerns that release detection methods may not properly operate on some EGTs and suggested changes to the release detection requirement.  Commenters reported these issues:

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

One commenter suggested EPA limit the type of release detection, such as statistical inventory reconciliation (SIR), owners and operator may use on EGTs.  Another commenter suggested EPA require owners and operators install electronic line leak detectors, which have a positive system shutdown of any product flow in the event of a leak.  Two other commenters recommended EPA clarify that automatic line leak detectors can go to alarm mode only and not shut down or restrict product flow when a leak is suspected in EGTs used during a crisis.

EPA does not have an estimate of the number of EGTs with looped or copper piping or are single walled rather than double walled.  EPA agrees that not all release detection methods may be suitable for all UST systems.  EPA discussed the applicability of SIR on EGTs with several SIR vendors and received conflicting responses.  The challenge is to establish a product use rate based on the run time of the system during operation.  Although this is highly suspect, EPA does not have enough information at this time to determine whether SIR or other methods that rely on metered data are acceptable for use on EGTs.  Owners and operators must carefully consider whether these methods meet the release detection requirement for their UST systems.  To meet the release detection requirement, some systems may require reconfiguration and addition of components such as anti-siphon valves to separate sections of the system.  Other systems have safe suction piping, in which case release detection is not required.  However, release detection technologies have advanced since EPA issued the 1988 UST regulations and there are various options available to meet this requirement.  EPA disagrees with commenters about requiring owners and operators to install automatic line leak detectors, which only shut off at the submersible pump, or allowing only certain release detection methods for these systems.  In the final UST regulation, EPA is allowing owners and operators flexibility to choose the most appropriate release detection methods, including automatic line leak detectors that trigger an alarm only and not necessarily shut down the pump, for their systems.  The alarm must be transmitted to a monitoring center where someone on site can hear or see the alarm and respond to a suspected or confirmed release.

Several commenters raised concerns that owners and operators would not have proper time for assessing, budgeting, and installing release detection in order to meet the one year proposed implementation date.  Commenters also suggested EPA establish a single implementation date, which is consistent with effective dates for release detection on other previously deferred tanks.  EPA agrees that extending the time frame will allow owners and operators sufficient time for planning and installing necessary equipment to meet the release detection requirement; but we disagree with commenters who suggested a five to ten year implementation date.  EPA also agrees that establishing a single effective date, which is consistent with other effective dates for the release detection requirement, decreases the tracking burden on implementing agencies as well as owners and operators.  EPA acknowledges this is a new requirement for owners and operators, as well as some implementing agencies.  Based on support for increasing the final implementation date for release detection from one year and EPA's goal of aligning regulatory implementation dates to foster better compliance, EPA is requiring EGT owners and operators comply with subpart D three years after the final date of the UST regulation.

One commenter recommended EPA allow flexibility for implementation based on UST implementing agencies' regulations because approaches or deadlines may differ.  EPA allows flexibility to UST implementing agencies in 40 CFR part 281, which permits potentially wide variation in how owners and operators meet requirements.  To a lesser degree, EPA is allowing UST implementing agencies flexibility for meeting the EGT release detection requirement.

Two commenters stated that the one-time notification recommended in the 2011 proposed UST regulation is unnecessary because the 1988 UST regulation excluded EGTs from only the release detection requirement.  In 1986, owners and operators were supposed to notify implementing agencies of their existence.  EPA agrees with commenters and is not including this requirement in the final UST regulation.  It is unnecessary for owners and operators to provide a one-time notification to implementing agencies.

One commenter suggested EPA should address the mission critical nature of EGTs and define the term mission critical.  While EPA acknowledges the need for an EGT during an emergency, we think it is unnecessary to define mission critical or make exceptions for the release detection requirement for EGTs.  The concern is owners and operators do not shut down their systems in the event of suspected releases.  EPA thinks owners and operators can meet the release detection requirement without automatically shutting down the system.

One commenter suggested owners and operators of aboveground and underground EGT systems should perform operator training and operation and maintenance practices to reduce risks of microbial contamination.  EPA is requiring operator training and operation and maintenance for underground EGT systems, but not aboveground systems.  EPA encourages UST system owners and operators to follow best management practices and address microbial issues appropriately.

Regarding comments about additional regulation burdening owners and operators, EPA is aware that not all EGTs are equipped with release detection.  Some owners and operators who do not meet this requirement will need to install release detection.  However, EPA is allowing a variety of options to meet the release detection requirement.  One commenter said EPA did not make the case that regulations are necessary to prevent future releases.  Another commenter stated there is no statutory mandate for EPA to address EGTs.  EPA disagrees with the commenter about EPA not making the case that regulations are necessary to prevent future releases.  In addition to the justifications EPA provided in the 2011 proposed UST regulation on the requirement for release detection equipment testing, justifications for other regulatory requirements support the regulation.  Since EPA promulgated the 1988 UST regulation, we intended to address deferred systems, which were merely deferred and not fully excluded.  Release detection technologies have improved since the1988 UST regulation and many methods are applicable to EGTs.  In addition, current sizes of these systems are larger than what EPA stated in the preamble of the 1988 UST regulation and used to guide us in deferring EGTs then.  EGTs are configured much the same as retail UST systems.  Some UST implementing agencies currently regulate EGTs and have done so for years.

Proposal To Remove The Deferral For Airport Hydrant Fuel Distribution Systems

Summary

   * More than 25 commenters provided input on EPA's proposal to remove the deferral for airport hydrant fuel distribution systems (also referred to as airport hydrant systems or AHSs) -- eight supported it; six opposed it

Support

Eight commenters supported removing the deferral, specifically:

      *       One commenter supported the proposal and indicated EPA did adequate research for release detection
      *       One commenter stated that releases from underground storage tanks (USTs) do not defer certain owners and operators, nor should the UST regulation
      *       Two commenters indicated EPA should reconsider regulating airport hydrant systems if additional funding is not granted to implementing agencies for program implementation
      *       One commenter supported the proposal, but wanted clarification of supplemental material describing examples of an AHS so stakeholders know the regulated components

Commenters: [0302, 0307, 0313, 0343, 0368, 0369, 0399, 0422]

Oppose

Six commenters opposed removing the deferral for AHSs, specifically:

   * Three commenters supported a separate rulemaking that includes evaluation and assessment of AHSs and determination if the UST program should regulate them
   * One commenter suggested a phased in regulatory approach that addresses the uniqueness of AHSs
   * One commenter suggested that EPA obtain actual data from AHS owners and operators to confirm that the regulatory requirements can be met without causing damage to AHS system components
   * A few commenters believed AHSs are already highly regulated

Commenters: [0300, 0338, 0358, 0391, 0408, 0417, 0427]

Release Detection Options And Time Frames

EPA asked whether the proposed release detection options and time frames for compliance are appropriate and sufficient.  Five commenters believed the release detection options and time frames are appropriate.  In addition, one commenter added that EPA should promulgate additional regulations as soon as possible.  Another commenter added that AHSs are already regulated in some states, and if there is an environmental concern, AHSs should follow the same release detection requirements.

Commenters: [0237, 0238, 0313, 396, 399]

One commenter stated the proposed release detection options and time frames are not appropriate and added that commercial airports evaluated and installed release detection on hydrant systems where feasible and when it was reasonable.  The commenter also added:

   * The options are not easily adaptable to existing systems
   * Systems will likely require extensive retrofitting at some large airports and may not be achievable in the proposed time frame
   * EPA should consider requiring only newly installed, modified, or replaced systems meet the new requirements

Commenter: [0408]

Appropriate Performance Requirements For Line Leak Detectors On Bulk Piping

EPA asked if the performance requirement of 3 gallons per hour at 10 pounds per square inch line pressure within one hour or equivalent proposed for line leak detectors for bulk piping is appropriate.

One commenter supported the use of a line leak detector, if it is used in conjunction with interstitial monitoring.  One commenter stated the performance requirement is appropriate for future AHSs, and existing systems should be required to follow the requirements as proposed.  Two commenters stated the proposed performance requirement was appropriate and added:

   * EPA should explain the intent of the question
   * AHSs are prone to leakage, so how much fuel will be lost before a leak is found
   * EPA should encourage immediate compliance with these requirements because an undetected hydrant fuel leak could be very significant

Commenters: [0237, 0313, 0394, 0399]

One commenter thought the performance requirement is not appropriate.  The commenter added that the tolerance for leak rates are dependent on fuel volume in each segment tested, and each facility must be evaluated individually based on segment volumes and available technology.  The commenter also believed that the requirement may not be appropriate for Chicago O'Hare International Airport, John F. Kennedy International Airport, and possibly other airports and would require substantial construction and pipe retrofits to achieve compliance.

Commenters: [0408]

Specific Requirements For Non-pressurized Piping Tightness Testing Methods

EPA asked whether we should consider including specific requirements for non-pressurized piping tightness testing methods, such as chemical marker methods, and what those requirements should be.

Three commenters suggested that chemical marker methods should be used.  One commenter added that chemical marker methods should be considered valid for release detection on a monthly or annual basis.  One commenter added these methods would detect smaller leaks than the other methods currently proposed.  One commenter provided the following suggested language regarding chemical marker testing: "to be performed every three years due to stringency (i.e., 0.1 gallons per hour (gph) at detection and false alarm probabilities of 95/5) of requirement." The commenter also added:

   * Even though the cost is high, chemical marker testing has been used for the last 20 years and the Department of Defense and commercial airports frequently use it
   * The method will create more market competition and reward owners for choosing more sensitive methods by requiring them to test less frequently
   * Several companies listed by the National Work Group on Leak Detection Evaluations (NWGLDE) are capable of testing and locating leaks below 0.1 gph

One commenter stated that AHSs at commercial airports do not contain non-pressurized piping.  However, chemical marker methods may be appropriate although the availability of the method depends on a number of factors, for example, compatibility of the tracer with jet fuel and local geology and testing requirements must account for the design and construction uniqueness as well as operational issues.  The commenter stated there is only one chemical marker that has been deemed acceptable for AHSs.

Commenters:  [0313, 0369, 0399, 0408]

Other Release Detection Options

EPA asked if commenters should consider other release detection options for AHSs.  One commenter did not know of any.  One commenter suggested using secondary containment with interstitial monitoring where feasible.  Another commenter stated that pressure and temperature compensation has been effective on some commercial aviation hydrant systems, although they may not satisfy the sensitivities, leak rates, and false alarm probabilities.  In addition, chemical tracer tests may be feasible at some airports.

Commenters:  [0313, 0399, 0408]

Testing Systems At Operating Pressure

In order to address potential concerns associated with over pressurizing piping systems, EPA proposed testing at the system's operating pressure instead of above it.  EPA asked if testing AHSs at operating pressure is sufficient and asked respondents to provide specific details.

Four commenters believed testing at operating pressure is sufficient.  One commenter stated that AHSs are pressure-based systems configured with control valves and surge suppression; AHSs must operate at a wide range of flow rates under relatively consistent pressures of less than 20 pounds per square inch (psi) differential.  The commenter stated that over pressurizing can damage components, for example, hydrant valves, flow control valves, and surge suppressors and requiring testing above the operating pressure is inappropriate.  One commenter stated that it is appropriate to test AHSs at operating pressure since these pressures are typically greater than normal operating pressure.  One commenter stated that operating pressures can fluctuate and suggested using those methods and testing protocols approved by NWGLDE.  One commenter stated AHSs typically operate at high pressures and testing at 150 percent of normal operating pressure may not be possible.  The commenter also suggested EPA establish a minimum test pressure associated with the gallon per hour being tested or the system be tested at an equivalent leak rate at a lower pressure.

Commenters: [0313, 0394, 0399, 0408]

Definition Of An Airport Hydrant System

EPA asked if the definition of airport hydrant system in the 2011 proposed UST regulation is clear and appropriate.  Three commenters thought the definition was appropriate and provided no additional comment.  However, most commenters did not think the definition is clear or appropriate and suggested EPA provide further clarification.  Suggestions included:

   * Clarify and address corrosion protection to properly apply standards
   * Modify the definition to include all aboveground tanks (receiver and intermediary) that supply fuel to the underground hydrant piping
   * Define bulk, bulk underground storage tank, bulk line, and bulk piping
   * Clarify that aboveground tanks are part of the total system that meets the definition of underground and define terms within the definition
   * Clarify what the regulated components of the system are and the function of the hydrant, including:
         o intermediary piping is not part of the hydrant and should not be included
         o whether piping entering intermediary tanks count as part of the 10 percent calculation
         o define all intermediary tanks as underground
         o include all underground portions because the proposed language, that is, all underground piping entering and leaving the intermediary tanks and the intermediary tanks, is confusing and redundant
   * Clarify if the 10 percent calculation is based on the total volume of both aboveground storage tanks (ASTs), not just the feeder tank
   * Exclude AHS that contain ASTs because these systems would not present the same issues as systems with USTs
   * The definition causes more confusion on what is regulated and the number of airports affected
   * The definition did not account for how AHSs actually function and commercial AHSs are best seen as a separate and unique category of fuel storage and delivery, rather than simply as a subset of traditional USTs
   * Clarify whether the UST program regulates hydrant systems that have no associated ASTs; the commenter questioned whether the definition should exclude AST based systems
   * EPA did not allow stakeholders time to provide input on the definition prior to issuing the 2011 proposed UST regulation

Commenters: [0219, 0224, 0238, 0307, 0313, 0341, 0396, 0399, 0408, 0421]

Releases From AHSs

EPA asked if anyone is aware of releases from AHSs and what were the sources, causes, and impacts to the environment from those releases.  One commenter was not aware of any releases.  One commenter was aware of releases, but did not have specifics because the 1988 UST regulation does not require owners and operators to report releases from these systems.  Two commenters provided anecdotal information about releases, for example, connections, equipment failure, piping corrosion, and overfills.  One commenter was aware of ongoing remediation since the1990s from a release at a Department of Defense (DoD) facility.  One commenter was aware of ongoing remediation from two AHS releases of thousands of gallons, but did not know the causes.  One commenter stated that releases at commercial airports are handled on a case by case basis and are appropriately addressed by the airport.

Commenters: [0237, 0238, 0265, 0313, 0396, 399, 0408]

Revising The Date In § 280.73 For Previously Deferred UST Systems

EPA asked if we should consider revising the date of December 22, 1988 in § 280.73 for previously deferred UST systems and, if so, what is the number of AHSs that have closed since that date.  Two commenters stated that the date should not be revised because the number of closed systems is unknown, and the current language gives states discretion.  One of the commenters added that even though the threat may be lower since large facilities are sited in remote locations and hydrant systems at smaller airports may be closer to sensitive receptors, EPA should not revise the date.  The commenter believed there was a higher potential of leaks because release detection was not required.

Two commenters stated that the date should be revised.  One of the commenters added:

   * It would be inappropriate and problematic to apply the final UST regulation retroactively to previously closed AHSs because:
         o significant manpower and costs could be required to locate all previously abandoned tanks, as well as identify previous owners and operators to properly apportion responsibility for site assessment and closure activities
         o the lack of documentation would also make it difficult for implementing agencies to determine if a tank had been properly closed
         o 40 CFR § 280.73 was designed to "[reduce] the unnecessary burden upon owners and operators..."
         o agencies may not promulgate retroactive regulations unless expressly authorized by Congress and commenter does not believe such authorization is present
   * EPA should clarify the requirements for previously deferred UST systems that were installed after December 22, 1988 but before the effective date of the revised regulation

Commenter: [0238, 0313, 0399, 0408]

Other Comments

EPA received these other comments pertaining to the proposed AHS requirements in the 2011 proposed UST regulation.  We grouped these comments below by topic area.

Release Detection

   * Large AHSs are allowed high leak rates
   * The table associated with bulk line tightness testing should indicate minimum instead of maximum
   * Develop a specific feasible alternative to the three identified release detection options; the commenter thought EPA's proposal acknowledges difficulties associated with applying release detection requirements to hydrant piping but EPA did not address them
   * The release detection alternatives will impose substantial and unjustified costs
         o EPA needs to complete a more detailed evaluation and analysis to ensure that the release detection provisions are flexible enough to provide workable solutions at all of the covered commercial airports and strike an appropriate balance between protectiveness and economic costs
         o EPA failed to properly identify the commercial airports covered by its proposal and develop a proposal that adequately addresses significant capital upgrades and retrofits for commercial airports and also renders the compliance alternatives infeasible

A commenter also provided the following summary of EPA's proposed release detection options and what he believes is the feasibility of performing them at commercial airports.

Semiannual Or Annual Bulk Line Tightness Testing

   * Most practical but may not be feasible because:
         o a number of the affected commercial airports will need complete system replacement or substantial retrofitting at costs higher than EPA indicated
         o release detection systems necessary to meet requirements are highly sophisticated and will require an entirely new operations layer to implement
   * Will be disruptive to airport operations and require more system down time than is possible at an operating commercial airport because:
         o as EPA recognized, removing AHSs from service for extended periods will greatly impede their purpose
         o the out-of-service periods necessary to comply even with the somewhat less stringent standards would pose unacceptable adverse impacts to airport operations with related economic consequences
         o John F. Kennedy International Airport, if covered, would require six to eight months of continuous testing per year, as well as back-up trucks and other contingencies to prevent service disruptions

Continuous Interstitial Monitoring

   * Not feasible because most hydrant piping is not double walled or secondarily contained
   * Replacing piping with double walled piping and associated interstitial monitoring systems would require extensive retrofitting
   * Can be difficult to line up the two walls to get an effective seal

Automatic Line Leak Detection

   * Not feasible for the extended length of piping associated with AHSs
   * Suited for smaller systems, such as those associated with more traditional USTs
   * Not designed to capture leaks at the volumes and flow rates that are several orders of magnitude greater than typical UST systems; automatic line leak detectors cannot be scaled to adapt to these systems

Other Methods

   * Chemical tracers or static pressure tests may be acceptable and could conceivably work, although these methods may be problematic because:
         o using a chemical tracer method can be problematic at a facility where the piping is located below the water table
         o would also require installing probes every 20 feet, which could be very burdensome, if not impossible, particularly on a tarmac or runway
   * It is not apparent whether the implementing agency will allow other methods since a theoretical leak rate is only provided
   * Proposal does not identify a sufficiently specific proposed standard to permit meaningful comments or address compliance issues and what additional conditions the implementing agency might impose on any such approval
   * Stated that courts have recognized, the Agency must establish an identifiable and sufficiently specific standard in the regulations  -  it may not promulgate a regulation that "provides no guidance at all (and hence does not truly establish the requirement by regulation)." Cement Kiln Recycling Coalition v. EPA, 493 F.3d 207, 221 (D.C. Cir 2007); Ethyl Corp v. EPA, 306 F.3d 1144, 1148-1150 (D.C. Cir 2002).  A regulation must also not leave a regulated entity "without guidance as to what he must prove, and how" or create a "standard [that] is so vague that it invites arbitrary and unequal application." South Terminal Corp. v. EPA, 504 F.2d 646, 670 (1st Cir. 1974).  As currently drafted, this option (d) does not appear to provide sufficient guidance under either Cement Kiln or South Terminal Corp.
   * The proposal to eliminate soil vapor and groundwater monitoring may be problematic for large USTs (greater than 30,000), which are currently operating at least three commercial airports that may be affected by the final UST regulation.

Commenters: [0316, 0336, 0391, 0408]

Technical And Operational Challenges

One commenter suggested that the statement made by EPA:  "technology is now available to monitor and detect releases at alternative leak rates and frequencies" should be acknowledged in the final UST regulation about all tanks.  If an approved method can detect a leak at a smaller leak rate than what is required, then it should be declared a reportable leak and require further investigation or repairs.  Another commenter suggested EPA write specific regulations for AHSs, since they are unique systems.  Two commenters stated there are unique operational challenges including these systems are typically owned by an airport authority and are generally leased to and operated by a fuel system operator under contract with the airport authority or a consortium group of airlines.  This relationship makes compliance with certain other traditional UST requirements, such as financial assurance and operator training, significantly more complex.  These commenters further indicated that, unlike military facilities, regulatory approvals and other requirements associated with any construction project at a commercial airport are significantly more complicated and require approval from and consultation with a number of federal, state, and local authorities.  In addition, these commenters believed that impacts from disruptions are far less at military airfields since operations can be shifted to other facilities and the government owns and operates both the aircraft and the airport.  Finally, federal owners and operators are exempt from the financial assurance requirements.

Commenters:  [0391, 0397, 0408, 0413, 0422]

Specific Clarification Requested

   * It is unnecessary to include deferral language for ASTs; EPA should edit the proposed definition to clarify that aboveground tanks are part of an overall system that meets the definition of underground storage tank and modify the deferral
   * Clarify what is considered the hydrant
         o the AHS scenarios are helpful, but add unnecessary complexity to the issue
         o the revised February 2012 schematic was contradictory to the schematic in the 2011 proposed UST regulation and EPA realized the discrepancy during a meeting between the commenter and EPA
         o provide clarification for scenario
   * Provide sample calculations to further illustrate and clarify the tank and piping volumes associated with EPA's supplemental guidance on AHS scenarios
   * Modify the definition of new tank system to recognize previously deferred systems, specifically:
         o currently, a deferred tank system installed after 1988 still must meet the new tank system standards
         o delete definition since the term is only used twice in the regulation; adjust language to clarify the intent
   * Provide additional guidance related to corrosion protection in order for proper application of National Association of Corrosion Engineers International standards

Commenters: [0224, 0238, 0313, 0343, 0397, 0399, 0408, 0421, 0422]

Cost And Benefits Of Regulating

*       Costs to regulate are far outweighed by the environmental benefits as accurately articulated in EPA's projections
*       Military operations are funded under the federal budget and do not require demand driven commercial viability required in the private sector
      o             Labor costs tend to be lower at government facilities
*       Pursuant to Executive Order 13563, EPA must "tailor" its regulations to account for "the costs of cumulative regulations."  Executive Order 13563 means that all federal agencies must take "active steps" to "harmonize and streamline multiples rules" and that the goal of this effort should be to "simplify requirements on the public and provide sectors" and "ensure against unjustified, redundant, or excessive requirements" in order to minimize regulatory costs and burdens.  In this regard, the EPA Administrator identifies several steps for agencies to consider, including, among others:
      o             careful consideration, in the analysis of costs and benefits, of the relationship between new regulations and regulations that are already in effect;
      o             identification of opportunities to integrate and simplify the requirements of new and existing rules, so as to eliminate inconsistency and redundancy
*       EPA estimated the costs associated with the release detection testing are approximately $96,000 annually; the commenter said EPA:
      o             significantly underestimated the cost associated with testing commercial systems, which commenter said actually range up to $2 million annually at the most significant airports
      o             assumed there will be no costs or impacts from system downtime during testing
            # although difficult to quantify, there will be a significant cost, for example, entire hydrant system could be inoperable, standby mobile aircraft refuelers would be required to supply fuel to aircraft during this downtime and increase the time required to service aircraft because of the lower fuel flow rates and fuel capacities of mobile refuelers
            # also an increased safety risk with using mobile refuelers due to their greater potential for being involved in an incident or accident when moving through a busy airport
*       No evidence in the Administrative Record indicating EPA considered the implications or its costs to the economy, traveling public, and affected airports
*       Disagreed with EPA's assumption of minimal impact in states that already regulate AHSs because:
      o             the Administrative Record does not provide any indication that EPA performed an actual analysis and review of state requirements relative to affected airports to determine whether the 2011 proposed UST regulation is more stringent than requirements in place in those states; for example, it is not clear whether Wisconsin would impose such stringent release detection requirements at General Mitchell Field
      o             most of the covered airports are located in states that do not currently regulate them as USTs
*       The Regulatory Impact Assessment (RIA) did not account for costs to state funds; corrective action costs would likely be substantial and represent a substantial new cost to state funds; also lack of data or evidence indicating rule change is necessary or would generate environmental benefits

Commenters: [0302, 0338, 0408]

Impact On Implementing Agencies

*       One commenter indicated there are no AHSs in his particular state
*       One commenter stated these systems are already regulated and removing the deferral will not impact agency
*       Suggestion to allow implementing agencies the option to regulate or not
*       Stated changes will have to be made to state UST rules; suggested EPA consider using language in state UST regulations that do not defer AHSs or allow automatic line leak detectors for pressurized lines
*       Anticipated impact: identify deferral and require release detection; inspection time to review records of testing; 30 facilities x 2 hours each = 60 hours annually (includes administrative)
*       Said requirements will create an extreme financial burden on implementing agencies

Commenters: [0222, 0243, 0313, 0343, 0360, 0422]

Implementation Time Frame

*       EPA should carefully reconsider the proposed schedules for the following reasons:
      o             many entities establish multi-year budget plans, often which include planning the following year's budget in the current year; so allowing a phase-in schedule that is several years out would greatly assist the regulated community in their budget planning processes and more efficiently meeting the compliance requirements
      o             allow a minimum of a five to ten year time period for upgrading existing UST systems that will no longer be deferred and longer time periods to initiate additional testing requirements
*       Three-year implementation is impracticable and difficult to meet; it imposes a cost burden

Commenters: [0348, 0402, 0421, 0422]

Other Regulatory Requirements (Dual Regulation Or Controls In Place)

*       Requested allowance to continue regulating AHSs under aboveground storage tank regulations
*       Believed EPA failed to assess the degree to which existing regulations, for example, Spill Prevention, Control, and Countermeasure (SPCC) regulation, safety regime administered by the Federal Aviation Administration (FAA) and environmental provisions, Federal Response Plan requirements, and others, address these systems and failed to quantify environmental impacts of regulation under the UST program.
*       Stated EPA concluded that the SPCC effectively addressed aboveground tanks associated with AHSs, but is uncertain if EPA evaluated whether the SPCC was sufficient to address the underground components
      o             SPCC regulation at 40 CFR § 112.8(c) and (d) contains requirements for both aboveground and underground piping, including integrity testing
      o             when promulgating the SPCC regulation, EPA presumably undertook a fairly detailed analysis of how to regulate these systems in a manner that was sufficiently protective of the environment
      o             EPA has not explained why it no longer views these existing requirements as acceptable
   * This commenter also said:
      o             a reasoned proposal must be flexible enough to account for such issues and avoid duplicative or conflicting requirements
      o             EPA is duplicating operator training and inspection requirements that these facilities already perform under other requirements
      o             the proposal should be related to the fuel management programs Airlines for America (A4A) has in place through its fuel quality specification, Air Transport Association (ATA) Specification 103, and the accompanying Airport Fuel Facility Operations and Maintenance Guidance Manual, which provide guidance for safely storing and distributing jet fuel at airports
*       Airports have been concerned about fuel leakage and leak detection for many years and preventing leaks is a major concern in the industry
*       Airports have also instituted strong compliance programs through lease agreements to prevent fuel spills and leaks
*       The industry association, A4A, developed strong fuel management programs, such as ATA Specification 103

Commenters: [0300, 0408, 0412, 0417]

Other Benefits To Consider

   * Apply operator training and operation and maintenance to reduce risk of microbial contamination
   * Any effort to regulate these systems must take into consideration the potential impacts of losing other benefits, including:
         o AHSs provide a more efficient means of fueling aircraft and can significantly reduce the emissions inventory and carbon footprint associated with airport fueling operations
         o by reducing the number of gas and diesel vehicles used to deliver fuel to the aircraft, fugitive emissions associated with fueling, and aircraft engine idling and emissions associated with delays in the landing and takeoff cycle due to less efficient fueling operations
   * The commercial aviation industry worked with American Petroleum Institute (API) to develop a comparison of AHS leak detection technologies
   * EPA and the airline industry should work together on a more tailored and appropriate approach that would result in having no basis to believe that a continued deferral will result in environmental harm or threat of harm

Commenter: [0335, 0408]

Notification And Certification To Implementing Agencies

*       Questioned what owners would certify since notification was not required at time of installation; records and installation standards probably do not exist
*       Suggested that § 280.34 (a)(1) - Reporting and Recordkeeping needs to be clarified to say that the requirement to certify the installation of new UST systems does not apply to previously deferred systems; as currently written, a previously deferred tank system installed after 1988 would be required to have this certification of installation even though it was subject to this requirement at the time of installation
*       Requested modification of § 280.22 - Notification requirements to clarify that new UST systems do not include previously deferred USTs
*       Recommended that owners and operators provide notification to implementing agencies be required 180 days
*       Recommended that owners and operators provide notification to implementing agencies within one year

Commenters: [0238, 0301, 0313, 0399, 0402]

Feasibility Of Regulation

*       Questioned why EPA is moving to regulate AHSs and wanted to know if any exist in Indian country
*       EPA must show cause and make the case that these systems are leaking in order for them to be regulated; one commenter stated that EPA must comply with the goal of Executive Order 13563, which discusses avoiding unnecessary regulations and solving documented problems in a cost-effective and least burdensome manner
*       Believed even if AHSs can meet release detection requirements, implementing agency may not be able to equally enforce release reporting, investigation, and confirmation requirements because of disruptions of having to shut down facility to investigate a leak at commercial airport; AHSs have controls in place to prevent and detect releases
*       Proposal is problematic to commercial airports in the following respects:
      o             The 1988 preamble recognized the UST regulations were not feasible for AHSs and EPA recognized that in the 2011 proposed UST regulation because
            # "[t]he large diameters and varying pipe lengths in AHSs introduce variables that prohibit accurate monitoring at leak rates within a reasonable time frame...";
            # "to produce accurate test results, underground hydrant system piping needs to be isolated in appropriately sized segments;"
            # "[p]roduct temperature fluctuations present challenges for release detection testing of AHS piping."
      o             EPA has taken the position that technological advances have made it possible to overcome these issues and that the scheme set forth in the 2011 proposed UST regulation achieves this; however, that is not the case at all affected airports
*       EPA should work with industry to develop workable and specific standards; the 2011 proposed UST regulation is not viable and must be withdrawn
*       The 2011 proposed UST regulation fails to deliver an appropriate approach for AHSs at commercial airports, relies on an oversimplified analysis and incomplete approach, and is based on the inaccurate assumptions that:
      o             almost all commercial airports would be unaffected by its requirements
      o             the proposal relies on analysis of military airports (which differ from commercial airports because they are much larger and more complex with different fueling requirements) and fails to recognize regulatory impact on significant commercial airports
      o             EPA did not perform any sort of survey or comprehensive investigation addressing which commercial airports would be impacted
      o             EPA's contractor identified Class B airports as those most likely to have AHSs and EPA concluded that only two from that list would be potentially affected
      o             no evidence in the record indicating that EPA conducted any comprehensive survey or employed an analytical methodology based on a thorough review of capacity and configuration information for U.S. commercial airports to confirm what it culled from the contractor's work
      o             financial and operational impacts would be limited and inconsequential
*       There is nothing in the record that would have put the regulated community on notice regarding which two airports EPA believed might be covered
      o             the 2011 proposed UST regulation fails to meet notice and comment requirements under federal law, but the flaws in the rulemaking process, record, and resulting proposal place the rulemaking in direct conflict with the President's regulatory reform program as set forth in Executive Order 13563, Improving Regulation and Regulatory Review; see 76 Fed. Reg. 3821 (January 18, 2011) (EO 13563); therefore, EPA should withdraw the 2011 proposed UST regulation
      o             the record casts doubt on whether any commercial airports might be impacted by the proposal by concluding that "[n]early all AHSs [affected by the proposed rule] are owned by the federal government"
      o             stakeholders were provided limited insight at a meeting at which EPA stated that the two airports that might be covered were Lambert-St. Louis International Airport and Denver International Airport
      o             aviation stakeholders were led to believe they are not affected by the 2011 proposed UST regulation and, as a result, have been deprived of notice and dissuaded from taking the opportunity to participate in the development of the 2011 proposed UST regulation or the comment process
*       Additional investigation of the unique circumstances at covered commercial airports is necessary
      o             obtaining full and detailed information about each of these systems has proved difficult and would have been best approached as a shared effort by both EPA and the regulated community
            # focused on the key areas of the proposal that were expected to impose the most significant costs and burdens on each airport
            # further efforts to regulate should be informed by a more robust Agency review of hydrant design and operation at specific airports and a rigorous analysis of the feasibility of such regulation at each unique system
      o             ready to work with EPA to further assess the situation and develop a reasonable regulation applicable to commercial AHSs to the extent warranted
      o             stated that such a review and potential rulemaking should be based on information and data that is specific to the facilities that will actually be covered by the proposal
*       EPA looked at regulatory solutions that are not appropriate to the issues posed by commercial airports; in light of these flaws, EPA's 2011 proposed UST regulation with respect to airport hydrant fueling systems cannot go forward

Commenters: [0300, 0301, 0302, 0307, 0339, 0358, 0391, 0408, 0417, 0422, 0427]

EPA Response

In the preamble to the 1988 UST regulation, EPA discussed the large volumes of product throughput, large capacities, and long lengths of piping for AHSs.  EPA deferred AHSs in the 1988 UST regulation because at that time, we thought release detection and prevention technologies were not feasible for these systems.  However, it has always been EPA's intent to regulate these systems.  EPA maintains that releases from any UST system, including AHSs, pose an unacceptable degree of threat to the environment.

Release Detection Options And Time Frames

In the 2011 proposed UST regulation, EPA discussed four alternatives for underground piping associated with AHSs in order to allow flexibility to meet the release detection requirement.  EPA sought comments on whether the release detection options and time frames for compliance were appropriate and sufficient.  Several commenters said the release detection options were insufficient and requested that EPA provide options that offered owners and operators more choices.  During the public comment period for the 2011 proposed UST regulation, Airlines for America provided a list of nine commercial airports that could be affected by the final UST regulation and the feasibility of applying the release detection methods discussed in the 2011 proposed UST regulation to these airports.

After publishing the 2011 proposed UST regulation, EPA met with industry stakeholders, including personnel from DoD, to gather more information on airport hydrant system design and operation.[,]  EPA also met with release detection vendors to determine whether commercial airports and DoD facilities could achieve release detection compliance within the specified time frames.[,][,]  Additionally, EPA met with personnel from eight of the nine airports that A4A named (including the Airport Authorities, Environmental Management Offices and Fueling Operators) to determine site-specific information, such as the configuration of their AHSs and the type and frequency of release detection performed on their AHSs.  Because of those meetings, EPA found that many DoD facilities and most of the commercial airport hydrant systems have release prevention and detection equipment currently installed on them, and personnel are already performing various fuel management methods, which monitor and track fuel inventories, and can be modified to meet the final UST regulation.  In addition, owners and operators already implement release detection according to specified technical requirements in states where AHSs are not deferred.

Appropriate Performance Criteria For Line Leak Detectors On Bulk Piping

EPA asked whether the performance criteria of 3 gallons per hour at 10 psi line pressure within one hour or equivalent were appropriate for bulk hydrant system piping.  EPA anticipated receiving information on the appropriate leak rate for automatic line leak detectors (ALLD) on this piping.  EPA did not receive any indication that current performance standards of ALLDs could be modified for these systems.  EPA disagrees with the commenter who suggested requiring interstitial monitoring in addition to the automatic line leak detection requirement.  Although some portions of existing systems may be able to use this option, EPA agrees it is not feasible to use an ALLD on these systems.  EPA is aware that not all AHSs have secondary containment on every portion of the system and ALLD cannot adapt to the operating pressures of these systems.  EPA proposed interstitial monitoring as a release detection option that AHS owners and operators could choose when appropriate and AHSs that are secondarily contained would have this option.  The final UST regulation, however, does not require secondary containment for piping associated with AHSs and, therefore, it is not feasible to require interstitial monitoring for these systems in the final UST regulation.  For more information see the section on Secondary Containment.

Another commenter requested EPA clarify the intent of the question.  Because AHS piping segments contain large amounts of regulated substances, EPA wanted to know if it was feasible to require automatic line leak detectors for hydrant system piping to detect a leak at 3 gallons per hour at 10 pounds per square inch line pressure within one hour or equivalent.  This standard has been required for pressurized piping at conventional UST systems since the 1988 UST regulation.  EPA anticipated receiving information on whether a different leak rate was more appropriate or other modifications to the standard would be beneficial to allow automatic line leak detectors be used categorically for all AHS piping.

One commenter asked about the amount of fuel that could be lost before finding a leak, since AHSs are prone to leaks.  These systems may leak just as conventional UST systems; however, the amount of fuel released during a leak is unknown, but expected to be much greater due to the capacity of AHSs.  Regulating these systems will help ensure owners and operators detect releases before a significant amount of regulated product reaches the environment.  A commenter stated that owners and operators should immediately comply with this requirement because an undetected leak from a hydrant line could be very significant.  EPA agrees that these systems handle large volumes of regulated substance on a daily basis and have the potential to contaminate large areas in a short period of time.  However, EPA is not requiring ALLDs to be installed on AHS piping in the final UST regulation.

EPA agrees with the commenter who stated leak rates are dependent on the fuel volume of each hydrant piping segment tested when pressure-based testing methods are used and individual segments will have to be evaluated to determine what would be needed to meet the requirements in the final UST regulation.  EPA's final UST regulation, however, allows other release detection options besides pressure-based methods.  Some of these other methods are not dependent on volume in order to determine leak rate.  The commenter also stated that substantial retrofits would be required to meet the requirements at Chicago O'Hare International Airport and John F. Kennedy International Airport, and possibly other airports.  However, EPA through our analysis and in depth discussions with those airports, concludes that the airport hydrant system at John F. Kennedy International Airport, as currently configured, may not meet the definition of an UST in the final UST regulation; this means the requirements would not apply.  In addition, if planned capital upgrades are completed on Chicago O'Hare International Airport's airport hydrant system, which A4A mentioned may not meet the definition of an UST, it would not be subject to today's final UST regulation.  If configurations for either of these airport hydrant systems change in the future, the owner and operator must re-evaluate the system to determine if it meets the definition of UST in today's final UST regulation.  However, it is still the responsibility of owners or operators to determine whether their airport hydrant systems meet the definition of an UST and must comply with today's final UST regulation.

Specific Requirements For Non-Pressurized Piping Tightness Testing Methods

EPA asked if we should consider including specific requirements for non-pressurized piping tightness testing methods and asked for suggested appropriate non-pressure based release detection methods that may be used for AHSs.  Commenters thought EPA should include chemical marker methods because these methods would detect smaller leaks than the other release detection methods EPA listed in the 2011 proposed UST regulation.  One commenter suggested allowing chemical marker testing at a frequency of every three years because of the method's capabilities to detect very small leaks.  The commenter suggested EPA use the performance standard for testing using chemical markers as 0.1 gph at probabilities of detection and false alarm (Pd/Pfa) of 95 percent and 5 percent, respectively.  EPA agrees with commenters and the final UST regulation includes chemical marker testing as a specifically allowed option.  EPA agrees that these methods are capable of detecting very small leaks.  Several release detection methods listed by NGWLDE are capable of detecting leaks as small as 0.005 gph.  EPA chose the method frequency of at least once every two years with a performance standard of 0.1 gph and Pd/Pfa of 95/5.  This selection of method frequency and performance criteria provides AHS system owners and operators with a longer term release detection option that balances testing frequency and costs with environmental protection.  EPA agrees with the commenter that chemical marker testing has been used by DoD and commercial airports.  DoD and several commercial airport personnel indicated that these methods have been used.

One commenter stated there is only one chemical marker deemed acceptable for hydrant systems.  EPA did not perform an exhaustive analysis, but following the public comment period, we spoke with a third-party service provider who performs chemical marker testing at airports.  The provider uses eight compounds in various types of fuels used in aircraft.  Depending on the fuel, there are fewer compounds to use to perform testing.  This provider also indicated that the American Society for Testing and Materials, International's approval process for new compounds can be lengthy and costly.  The provider added that there was not adequate market interest for approval of additional compounds.  EPA thinks that market demands will determine whether new compounds are submitted for approval.

Other Release Detection Options

EPA asked commenters whether we should consider other release detection options for AHSs.  One commenter suggested EPA require interstitial monitoring with use of an automatic line leak detector, as discussed above.  Commenters also suggested EPA allow these release detection methods:  secondary containment with interstitial monitoring, where feasible; pressure and temperature compensation; and chemical marker methods.

EPA gathered additional information to refine the specific release detection options in the final UST regulation.  Throughout the regulatory process, we obtained information through a variety of meetings with DoD, A4A, commercial airports, and release detection vendors.  EPA researched suggested release detection options and standard practices provided by DoD and contacted specific commercial airports that could be potentially regulated under 40 CFR part 280.  EPA found that both DoD and commercial airport facilities perform a type of inventory management and hydrostatic tests of the piping system to detect pressure changes in the system.  EPA determined that although the 1988 UST regulation did not require airport hydrant system owners and operators perform these tests, both DoD facilities and commercial airports have been performing various fuel management methods to monitor and track fuel inventories.

Release Detection In The Final Regulation

Based on the comments and additional information EPA obtained on commercial and DoD airport operations, the final UST regulation modifies these release detection options in the 2011 proposed UST regulation:  pressure-based testing methods; use of continuous interstitial monitoring; automatic line leak detector combined with interstitial monitoring performed at least every three months; and other methods approved by the implementing agency and demonstrated by owners and operators to be as effective as other proposed methods.  The final UST regulation retains the option for owners and operators to choose pressure-based testing methods performed in accordance with performance criteria dependent on volume contained by the line segment tested.  These criteria are unchanged from the 2011 proposed UST regulation.

EPA is not including the options of using continuous interstitial monitoring and the combination of automatic line leak detectors with interstitial monitoring.  Although some portions of existing systems may be able to use these options, EPA agrees with commenters that these options currently are not viable for the majority of AHSs.  Most AHSs lack secondary containment and automatic line leak detectors are not adaptable to the operating pressures of these systems.  Despite not listing these methods in the final UST regulation, EPA still recognizes them as workable solutions in limited capacity.  Where applicable, owners and operators and implementing agencies are encouraged to use these methods and recognize their use under the other methods option.

EPA is also retaining the option for owners and operators to demonstrate to the implementing agency a release detection method as effective as those stated in the final UST regulation.  The implementing agency must approve any option not specifically included in the final UST regulation.

EPA is adding three additional options to the final UST regulation.  AHS owners and operators may use active vapor monitoring methods that use chemical markers or tracers in accordance with § 280.43(e) to detect a release of at least 0.1 gph with probabilities of detection and false alarm of 95 percent and 5 percent, respectively.  Owners and operators choosing this option must conduct this test at least once every two years.

Owners and operators may also use a combination method incorporating use of a pressure-based line tightness test at least once every two years, in accordance with the final UST regulation in § 280.252(d)(2) and either:  conduct inventory control to detect a release of at least 0.5 percent of flow-through at least every 30 days or perform passive vapor monitoring or groundwater monitoring every 30 days in accordance with § 280.43(e) or (f), respectively.  Owners and operators may conduct inventory control in accordance with Department of Defense Directive 4140.25, ATA's Airport Fuel Facility Operations and Maintenance Guidance Manual, or equivalent procedures.

In order to provide greater flexibility for AHSs to meet the release detection requirements, the final UST regulation modifies the release detection options in the 2011 proposed UST regulation and incorporates some of the methods currently used at DoD facilities and commercial airports.  EPA allows UST system owners and operators to use existing release detection options provided in the 1988 UST regulation and establishes alternative methods of release detection located at § 280.252(d)(2).  The final UST regulation also allows methods approved by the implementing agency, as long as those methods are as effective as release detection methods specified in the final UST regulation.  The additional release detection options include:  vapor monitoring for a chemical marker at least every two years; and the combination of inventory control performed at least every 30 days with either line tightness testing at least every two years, or vapor monitoring or groundwater monitoring for the stored regulated substance at least every 30 days.  Adding these options improve the flexibility of the release detection requirement.  By providing performance criteria associated with other types of release detection methods in addition to pressure-based line tightness testing, owners and operators have more concrete examples of demonstrating equivalency of release detection methods for approval by the implementing agency.

Groundwater And Vapor Monitoring

In the 2011 proposed UST regulation, EPA intended to phase out groundwater and vapor monitoring as release detection methods.  However, the final UST regulation retains these methods with modifications for conventional UST systems.  Owners and operators of AHSs may either perform active monitoring for chemical markers or tracers or perform passive monitoring for stored product in the tank system.  Active vapor monitoring methods are characterized by testing or monitoring of chemical markers or tracer compound placed in the tank system, in accordance with § 280.43(e), to detect a release of at least 0.1 gallon per hour (gph) with probabilities of detection and false alarm of 0.95 and 0.05, respectively.  Owners and operators choosing this option must conduct this test at least once every two years.  Owners and operators may use this method as a stand-alone method of release detection.

Owners and operators may also combine passive vapor or groundwater monitoring with inventory control, described above, that can detect a release of at least 0.5 percent of flow through at least every 30 days according to § 280.43(e) or (f), respectively.  EPA thinks these options are reasonable and will quickly detect releases when they occur.

Testing Systems At Operating Pressure

EPA asked if testing AHS systems at operating pressure was sufficient and asked commenters to provide specific details.  The 1988 UST regulation requires owners and operators test conventional systems at 1.5 times the operating pressure.  AHSs operate under pressure and fluctuating line pressure during a release detection test can mask an existing release or falsely indicate one occurred.  To detect leaks effectively from the pressurized piping systems, industry practice involves performing pressure based testing at levels above standard operating pressure.  EPA is aware that these systems are highly pressurized and agrees with the commenter who stated testing at above operating pressure might be infeasible.  Therefore, EPA's final UST regulation maintains the performance standard proposed in the 2011 proposed UST regulation and requires owners and operators test these systems at least at operating pressure to eliminate the potential of damaging valves and other system components.

These large piping systems operate at pressures higher than conventional USTs.  EPA agrees with the commenter who stated testing at 1.5 times the operating pressure may not be practical or safe for AHSs.  These systems are composed of many different components that could be damaged if the piping was over pressurized.  EPA is allowing these systems to be tested above operating pressure but is not providing a specific pressure rate.  Professional line testers can determine the appropriate testing pressure for these systems, as long as the pressure is at least the operating pressure of the system.

One commenter suggested EPA establish a range of test pressures based on the gallons tested per hour.  The commenter added that hydrants that cannot be tested at the required minimum pressure be tested at an equivalent leak rate at a lower pressure.  EPA agrees with commenters who said hydrant piping sizes and segment volumes vary.  EPA also agrees with the commenter who stated that individual piping segments will have to be evaluated to determine what would be needed to meet the requirements in the final UST regulation.  The final UST regulation allows methods listed by NWGLDE and provides flexibility to owners and operators by providing maximum leak detection rate per test section volume associated with pressure-based testing [see table located at § 280.252 (2) (a)].

Definition Of An Airport Hydrant System

EPA asked commenters whether the definition of an AHS in the 2011 proposed UST regulation was clear and appropriate.  Five commenters agreed the definition was appropriate; however, four commenters suggested EPA clarify how connected aboveground storage tanks and other system components are regulated.  Several commenters did not agree with the definition and suggested EPA clarify the function of aboveground and underground system components.  One commenter suggested EPA clarify and address corrosion protection to properly apply standards.  EPA will incorporate applicable NACE International standards, where appropriate.  EPA disagrees with the commenter who stated EPA did not allow stakeholders time to provide input on the scope or definition prior to issuing the 2011 proposed UST regulation.  EPA disagrees with the commenter who stated there was not ample time to offer insight into the scope of the 2011 proposed UST regulation.  On several occasions prior to developing the 2011 proposed UST regulation, EPA reached out to stakeholders to gain more information on the AHS universe and their operation, design, and construction.  EPA acknowledges this is a new requirement for some implementing agencies and owners and operators of these systems, and we will clarify which systems and components are regulated under the final UST regulation.  Removing the deferral may increase the tank universe and affect available resources of some implementing agencies.  However, EPA provided ample time for implementing agencies to determine the AHS universe, adjust resources, and meet applicable requirements through the implementation time period.  To decrease the tracking burden on implementing agencies and owners and operators, EPA is also establishing a single effective date, which is consistent with other effective dates for the release detection requirement.

The Resource Conservation and Recovery Act (RCRA) defines an UST as any one or a combination of underground storage tanks (including connected underground piping) used to contain an accumulation of regulated substances, and the total volume of the tanks and the underground piping is 10 percent or more beneath the surface of the ground.  In order for an AHS to be regulated by the UST regulation, it must first meet the definition of an UST.  The 1988 UST regulation did not provide a definition for AHS.  In the 2011 proposed UST regulation, EPA proposed a definition of an AHS that included only the immediate piping and intermediary tank directly feeding the hydrant piping.  EPA based the definition on an AHS that receives fuel at a single delivery point and is designed with all components operating in tandem.

EPA disagrees with the commenter who suggested the final UST regulation exclude hydrant systems that contain aboveground storage tanks because these systems would not present the same issues as systems with underground storage tanks.  AHSs with aboveground tanks pose the same threats to human health and the environment as AHSs with underground storage tanks.  EPA agrees with the commenters who suggested the total volume of all aboveground storage tanks that function as part of the hydrant system be included in the 10 percent calculation to determine whether an AHS meets the definition of an UST.  As a result, the volume calculation includes all aboveground storage tanks, underground storage tanks, and underground piping that are components of the hydrant system.  EPA will provide more clarification on volume calculations through stakeholder outreach and guidance documents.

EPA disagrees with the commenter who stated that intermediary piping is not part of the airport hydrant system.  If the intermediary piping is a connected component that stores fuel or delivers fuel to aircraft, it is part of the hydrant system.  EPA also disagrees with the commenter who suggested EPA consider all intermediary tanks as underground.  Intermediary tanks can be both aboveground and underground.  However, aboveground storage tanks and connected piping that have more than 10 percent total volume stored underground are considered UST systems for the purposes of this regulation.  Several commenters asked EPA to define the terms bulk, bulk underground storage tank, and bulk line and piping.  In the 2011 proposed UST regulation, EPA used the term bulk to describe USTs and piping greater than 50,000 gallons.  EPA has determined that all tank systems meeting the definition of an UST are in the same category.  The final UST regulation does not use the term bulk and, therefore, those definitions are not required.

Since the 2011 proposed UST regulation, EPA gathered additional information on hydrant system design and function.  Commenters stated the AHS definition provided in the 2011 proposed UST regulation and subsequent schematics needed clarification of the components regulated by the final UST regulation.  EPA provided the revised schematic, which contained more defined hydrant system scenarios, to further clarify the regulated hydrant system.  However, commenters were still confused about which specific components of an AHS would be regulated.