[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Proposed Rules]
[Pages 71708-71796]
[FR Doc No: 2011-29293]

Vol. 76

Friday,

No. 223

November 18, 2011

Part III

Environmental Protection Agency

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40 CFR Parts 280 and 281

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

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 280 and 281

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Elizabeth McDermott, OSWER/OUST
(5401P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
Table of Contents

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

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

SUPPLEMENTARY INFORMATION:

I. General Information

Does this action apply to me?

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

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

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

II. Authority

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

III. Background

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

Why is EPA changing the UST regulations?

    EPA is proposing to revise the 1988 UST regulations to:
     Establish federal requirements that are similar to certain
key provisions of the Energy Policy Act;
     Ensure owners and operators properly operate and maintain
their UST systems;
     Include updates to current technology and codes of
practices;
     Make technical and editorial corrections; and
     Update SPA regulation to address the proposed changes
listed above.
    In 1988, EPA first promulgated the UST regulations (40 CFR part
280) to prevent, detect, and clean up petroleum releases into the
environment. The 1988 UST regulations required new UST systems to be
designed, constructed, and installed to prevent releases; existing UST
systems had to be upgraded to prevent releases. In addition, owners and
operators were required to perform release detection, demonstrate
financial responsibility, and clean up releases.
    The Energy Policy Act amended Subtitle I of the Solid Waste
Disposal Act (SWDA), the statute that authorized the UST program. Key
Energy Policy Act provisions (such as secondary containment and
operator training) apply to all states receiving federal Subtitle I
money under SWDA, regardless of their state program approval status,
but do not apply in Indian country (or in states and U.S. territories
that do not meet EPA's operator training or secondary containment grant
guidelines). The U.S. has a unique legal relationship with federally
recognized Indian Tribes. This government to government relationship
includes recognizing the rights of Tribes as sovereign governments to
self-determination and acknowledging the federal government's trust
responsibility to Tribes. As a result, EPA directly implements the UST
program in Indian country.
    In order to establish federal UST requirements that are similar to
the UST secondary containment and operator training requirements of the
Energy Policy Act, EPA decided to revise the 1988 UST regulations. EPA
also decided to revise the 1988 UST regulations in order to achieve
better release prevention and compliance results (see section IV.B.
Additional Requirements for Operation and Maintenance for additional
information). Today's proposed revisions also fulfill objectives in
EPA's UST Tribal Strategy (August 2006), where both EPA and Tribes
recognized the importance of requirements that ensure parity in program
implementation among states and in Indian country. Requiring secondary
containment will reduce releases to the environment by containing them
within a secondary area and detecting them before they reach the
environment. Operator training will educate UST system operators and
help them prevent releases by complying with the regulation and
performing better operation and maintenance of their UST systems.
    Since the beginning of the UST program, preventing petroleum and
hazardous substance releases from UST systems into the environment has
been one of the primary goals of the program. Although EPA and our
partners have made significant progress in reducing the number of new
releases, approximately 7,000 releases are discovered each year as of
FY 2009.\1\ Lack of proper operation and maintenance of UST systems is
a main cause of new releases. Information on sources and causes of
releases shows that releases from tanks are less common than they once
were. However, releases from piping and spills and overfills associated
with deliveries have emerged as more common problems. In addition,
releases at the dispenser are one of the leading sources of releases.
Finally, data show that release detection equipment is only detecting
approximately 50 percent of releases it is designed to detect. These
problems are partly due to improper operation and maintenance (see
section IV.B. Additional Requirements for Operation and Maintenance for
a more detailed discussion of problems).2 3
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    \1\ Semi-Annual Report Of UST Performance Measures, End Of
Fiscal Year 2009, http://epa.gov/oust/cat/camarchv.htm.
    \2\ Petroleum Releases At Underground Storage Tank Facilities In
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \3\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
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    EPA relies on two draft causes of release studies to help support
this proposed rule. Petroleum Releases at Underground Storage Tank
Facilities in Florida contains release data on 512 releases from new
and upgraded tanks in Florida.\4\ The second draft study, Evaluation of
Releases from New and Upgraded Underground Storage Tank Systems,
contains release data on 580 releases from new and upgraded tanks in 23
states across the Northeast, South, and Central parts of the United
States.\5\ Taken together, these draft studies provide information
about 1092 releases in 24 of the 50 states. The data in the two
studies, when taken as a whole, generally provide a representative
sampling of releases across the United States because nearly half of
the states contributed to the studies. Both drafts were peer reviewed
but never finalized because the passage of Energy Policy Act of 2005
required a reallocation of personnel and resources. Even though these
studies were never finalized, the underlying data and calculations can
be used to support this proposed rule because that information did not
change as a result of the peer review process.
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    \4\ Petroleum Releases At Underground Storage Tank Facilities In
Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \5\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
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    Many USTs currently in the ground were upgraded to meet the spill,
overfill, corrosion protection, and release detection requirements in
the 1988 UST regulation. As these USTs continue to age, it is vital
that we improve UST operation and maintenance and test components to
ensure they are still working as intended. Today's proposed revisions
to the 1988 UST regulation focus on ensuring equipment is working,
rather than requiring UST owners and operators to replace or upgrade
equipment already in place. The 1988 UST regulation require owners and
operators to use equipment that could help prevent releases; today's
proposed revisions highlight the importance of operating and
maintaining UST equipment so releases are prevented and detected early
in order to avoid or minimize potential soil and groundwater
contamination.
    EPA is proposing changes to the SPA regulation (40 CFR part 281) to
address today's proposed changes to 40 CFR part 280. By doing so, EPA
will require states to generally adopt the 40 CFR part 280 changes
proposed today in order to obtain or retain SPA.

What is the history of the UST laws and regulations?

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

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

What is the impact of this proposal?

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

                 Costs and Benefits of the Proposed Rule
                            [2008$ millions]
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                                     7% Discount rate   3% Discount rate
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Total Annual Compliance Costs.....               $210               $210
Total Annual Avoided Costs........          $300-$740          $330-$770
Net Cost (Savings) to Society.....         ($530-$90)        ($560-$120)
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    EPA also prepared a risk assessment titled Risk Analysis to Support
Potential Revisions to Underground Storage Tank (UST) Regulations,
associated with the regulatory changes. The risk assessment examines
potential impacts to groundwater and subsequent chemical transport,
exposure and risk. It is available for review in the docket for this
proposal.

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

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

the items in today's proposal as most appropriate.

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

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

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

1. Operator Training

What is EPA proposing?

    EPA is proposing to add a new subpart, subpart J--Operator
Training, to 40 CFR part 280. Through subpart J, EPA is proposing the
following training requirements for three UST system operator classes.
New Definitions
    EPA is proposing the following new terms and definitions:
     Class A operator--individual with primary responsibility
for operating and maintaining an UST system according to applicable
requirements established by the implementing agency. The Class A
operator typically manages resources and personnel, such as
establishing work assignments, to achieve and maintain compliance with
regulatory requirements.
     Class B operator--individual with day-to-day
responsibility for implementing applicable regulatory requirements
established by the implementing agency. The Class B operator typically
implements in the field aspects of operation, maintenance, and
associated recordkeeping for an UST system.
     Class C operator--employee responsible for initially
addressing emergencies presented by a spill or release from an UST
system. The Class C operator typically controls or monitors dispensing
or sale of regulated substances.
     Training program--any program established by the
implementing agency that provides information to and evaluates the
knowledge of a Class A, Class B, or Class C operator regarding
requirements for UST systems.
Training Requirements
     How operators are designated--UST owners and operators
must designate individuals for each of the three operator classes. UST
owners and operators must designate at least one Class A and one Class
B operator for each UST or group of USTs at a facility. UST owners and
operators must designate all of their employees who meet the Class C
operator definition as Class C operators.
     Who must be trained--This proposed training requirement
covers all UST systems storing regulated substances. UST owners and
operators must ensure designated individuals meet specific training
requirements according to the operator class in which they are
designated.
     Requirements for operator training--UST owners and
operators must ensure operators in each class successfully complete
training programs or comparable examinations that, at a minimum, cover
these areas:
    [cir] Class A operator--spill and overfill prevention; release
detection; corrosion protection; emergency response; product and
equipment compatibility; financial responsibility; notification and
storage tank registration; temporary and permanent closure; related
reporting and recordkeeping; environmental and regulatory consequences
of releases; and training requirements for Class B and C operators.
Training for Class A operators is general on all listed areas.
    [cir] Class B operator--operation and maintenance; spill and
overfill prevention; release detection and related reporting; corrosion
protection and related testing; emergency response; product and
equipment compatibility; reporting and recordkeeping; environmental and
regulatory consequences of releases; and training requirements for
Class C operator. Training for Class B operators may be general or
specific to a Class B operator's site.
    [cir] Class C operator--appropriate action to take in response to
emergencies (including situations posing an immediate danger or threat
to the public or environment and that require immediate action) or
alarms caused by spills or releases from an UST system. Training for
Class C operators may be general or specific to a Class C operator's
site.
     Training programs for Class A and B operators must, at a
minimum, teach and evaluate their knowledge on the purpose, methods,
and functions of items listed in the minimum training areas above.
Training programs for Class C operators must teach and evaluate their
knowledge of the items listed in the minimum training areas above.
     A training program must meet the minimum requirements
discussed above and evaluate knowledge through a test, practical
demonstration, or another approach acceptable to the implementing
agency. In lieu of a training program, all three operator classes must
pass comparable examinations that assess their knowledge in the minimum
training areas above.
     The evaluation component of training programs and
comparable examinations must be developed and administered by an
independent organization, the implementing agency, or delegated
authority.
     When designated operators must complete operator
training--UST owners and operators must ensure all designated Class A,
B, and C operators are trained or successfully complete a comparable
examination according to criteria and within time frames in the
schedule below. Phase in is based on when USTs were installed because
newer UST systems tend to have fewer releases than older UST
systems.\6\
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    \6\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.

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

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

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

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

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

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

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

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

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

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

What is EPA proposing?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    \17\ IEc Incorporated, Work Assignment  1-19,
``Methodology and Calculator for Secondary Containment for Piping,''
October 3, 2008.
---------------------------------------------------------------------------

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

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

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

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

    \20\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \21\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
    \22\ Frequency And Extent Of Dispenser Releases At Underground
Storage Tank Facilities In South Carolina (EPA-510-R-04-004,
September 2004). http://epa.gov/oust/pubs/dispenser.htm.
---------------------------------------------------------------------------

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

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

B. Additional Requirements for Operation and Maintenance

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

What is EPA proposing?

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

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

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

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

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

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

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

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

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

What is EPA proposing?

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

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

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

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

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

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

What is EPA proposing?

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

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

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

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

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

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

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

What is EPA proposing?

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

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

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

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

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

    The Energy Policy Act requires states that receive federal Subtitle
I money implement additional measures to protect groundwater, either
with secondary containment for new and replaced tanks and piping or
financial responsibility for manufacturers and installers. 54 of 56
states have implemented the secondary containment option. To ensure
secondary containment is working properly, the integrity of the
interstitial space needs to be tested. Therefore, EPA is proposing
periodic interstitial integrity tests of the interstitial space in
secondarily-contained UST systems which use interstitial monitoring for
release detection. These systems need to contain a leak until
interstitial monitoring detects the regulated substance. Currently, EPA
has no requirement for ensuring the integrity of secondary containment
areas.
    Since most states implemented the secondary containment
requirements in the Energy Policy Act for most new and replaced tanks
and piping, new and replaced UST systems will be secondarily contained
with interstitial monitoring. This requirement signals a move from non-
secondarily contained UST systems using methods of release detection
that detect a release only after regulated substances have reached the
environment to secondary containment with interstitial monitoring that
identifies a problem before regulated substances reach the environment.
Interstitial integrity tests will confirm for owners and operators that
secondary containment will contain a leak until it is detected and the
problem is repaired.
    Some interstitial monitoring methods for tanks, piping, and
containment sumps already continuously ensure the interstitial area's
integrity. When an owner or operator uses one of these methods, EPA
will not require periodic interstitial integrity tests.
     Tanks--According to EPA's source and cause of release
information, tanks are not the leading source of releases
24 25 In addition, tanks are nearly always constructed in a
factory under controlled conditions, making it less likely problems
will occur in interstitial areas after installation. For these reasons,
EPA proposes not to require owners and operators to conduct periodic
interstitial integrity tests of tanks using continuous interstitial
monitoring. Methods of continuous interstitial monitoring for tanks
include liquid filled, vacuum, pressure, and sensors in the
interstitial space.
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    \24\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \25\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
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     Piping--EPA's source and cause of release information
shows that a significant number of releases occur from
piping.26 27 In addition, piping and containment sumps are
assembled in the field during the installation process, potentially
creating increased opportunities for releases. Therefore, unless owners
and operators use continuous liquid-filled, vacuum, or pressure
interstitial monitoring for piping release detection, EPA is proposing
to require periodic interstitial integrity testing for piping. For
example, owners and operators who choose to use sensors in containment
sumps for piping interstitial monitoring must also perform three year
interstitial integrity tests of the piping interstitial space.
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    \26\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
    \27\ Evaluation Of Releases From New And Upgraded Underground
Storage Tanks, Peer Review Draft, U.S. EPA/OUST, August 2004.
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     Containment sumps--Similar to piping, EPA's source and
cause of release information shows that a significant number of
releases occur in containment sump areas. EPA is also aware of issues
with the tightness of containment sumps. Based on this information, EPA
is proposing owners and operators conduct periodic interstitial
integrity tests of containment sumps used for piping interstitial
monitoring, unless the containment sump has two walls and the
interstitial space between the walls in the sump is continuously
monitored. For example, if an owner or operator has a double-walled
containment sump and uses a sensor, vacuum, pressure, or liquid-filled
interstitial area to continuously monitor the space between the two
walls, then periodic interstitial integrity tests of that sump are not
required under this proposal. Owners and operators of double-walled
sumps without continuous interstitial monitoring must perform three
year interstitial integrity tests.

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

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

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

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

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

What is EPA proposing?

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

 ATG and other controllers
    [cir] Test alarm;
    [cir] Verify system configuration; and
    [cir] Test battery back-up.
 Probes and sensors
    [cir] Inspect for residual build-up;
    [cir] Ensure floats move freely;
    [cir] Ensure shaft is not damaged;
    [cir] Ensure cables are free of kinks, bends, and breaks; and
    [cir] Test alarm operability and communication with controller.
 Line leak detector
    [cir] Simulate leak which determines capability to detect a leak;
and
    [cir] Inspect leak sensing o-ring.
 Vacuum pumps and pressure gauges
    [cir] Ensure communication with sensors and controller.

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

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

    EPA is concerned about the performance of release detection
equipment. Inspectors routinely find release detection equipment
installed on UST systems, but that equipment is not properly operated
and maintained. In addition, information from an analysis in Florida
indicates, ``Leak detection successfully detected 26 percent of all
releases. Conversely, leak detection was specifically identified as
failing to detect 23 percent of releases.'' The analysis also says the
exact reason for the leak detection failure could not be determined.
However, the analysis provided these possible reasons, ``* * * faulty
equipment; improper installation; operation or maintenance; or
insufficient performance standards.'' \28\ To increase the
effectiveness of release detection, EPA is targeting operation and
maintenance.
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    \28\ Petroleum Releases At Underground Storage Tank Facilities
In Florida, Peer Review Draft, U.S. EPA/OUST, March 2005.
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    The 1988 UST regulation in Sec.  280.40(a)(2) requires that release
detection ``Is installed, calibrated, operated, and maintained in
accordance with the manufacturer's instructions, including routine
maintenance and service checks for operability or running condition;''.
Most owners and operators installed the required release detection
equipment, but some owners and operators are not properly operating and
maintaining their equipment. To achieve optimal performance from
equipment and meet release detection requirements, it is important for
UST system owners and operators to both install the equipment and
properly operate and maintain it. In the 1988 UST regulation, EPA did
not provide specifics on minimum requirements to ensure adequate
operation and maintenance of release detection equipment. As a result,
operation and maintenance requirements vary greatly, even between
similar types of equipment.
    Some manufacturers' requirements do not adequately address
operation and maintenance. For example, some manufacturers only
recommend operation and maintenance checks; but EPA is taking the
position that checks should be mandatory instead of optional. In
addition, similar release detection components should be tested in a
similar manner, which will increase the likelihood all release
detection equipment will function at optimal levels for as long as
possible. California's in-field analysis of sensors used for release
detection and anecdotal feedback supports EPA's belief. \29\
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    \29\ California's ``Field Evaluation Of Underground Storage Tank
System Leak Detection Sensors,'' August 2002. http://www.waterboards.ca.gov/water_issues/programs/ust/leak_prevention/sensors/index.shtml.
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    EPA is proposing this change to improve and standardize operation
and maintenance for all release detection equipment. This proposed
change will provide owners and operators with an understanding of
equipment tests necessary to ensure equipment is properly operated and
maintained. EPA is proposing a set of minimum operation and maintenance
criteria owners and operators must follow for all electronic- and
mechanical-based release detection equipment. EPA is also addressing
equipment that is neither electronically nor mechanically based (for
example,

bailers and measuring sticks used for activities such as statistical
inventory reconciliation [SIR]) separately under the walkthrough
inspections section (see section B-1).
    EPA based these proposed operation and maintenance minimum
requirements for release detection on common requirements and
recommendations by various equipment manufacturers of similar
equipment. EPA used the National Work Group on Leak Detection
Evaluation's (NWGLDE) list of leak detection equipment to identify
commonly used equipment.\30\ In addition, EPA's publication, Operating
And Maintaining Underground Storage Tanks Systems: Practical Help And
Checklists and Petroleum Equipment Institute's Recommended Practices
for the Inspection and Maintenance of UST Systems (RP 900) also helped
establish proper operation and maintenance activities.
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    \30\ National Work Group On Leak Detection Evaluation's (NWGLDE)
List Of Leak Detection Evaluations For Storage Tank Systems: http://www.nwglde.org/.
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    Regarding our proposal to use a code of practice developed by a
nationally recognized association or independent testing laboratory,
EPA knows of one code of practice currently being developed that may
address operability testing for release detection equipment. After that
code of practice is final, EPA will review it and decide whether to
include it in the final UST regulation.
    EPA is proposing owners and operators maintain records of annual
operation tests for three years. Results of tests must include: a list
of each component tested; whether it tested acceptable or needed
action; and a description of any action taken to correct an issue.
Three years worth of records are consistent with the three year
inspection cycle, and content of the records will allow owners and
operators to demonstrate compliance with this operation and maintenance
requirement.
    Finally, EPA is allowing owners and operators up to one year from
the effective date of the final UST regulation to meet this
requirement. One year is consistent with the annual test frequency
requirement already in place for automatic line leak detectors, and
many third-party service providers nationwide already perform the
testing.

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

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

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

C. Addressing Deferrals

    Note about the overlap of UST regulations and Spill Prevention
Control and Countermeasures (SPCC) regulations: At the time of the 1988
UST regulation, facilities with an aggregate completely buried storage
capacity greater than 42,000 gallons and located near navigable waters
of the U.S. or adjoining shorelines were subject to both UST rules and
SPCC rules. Since then, SPCC rules have been amended and the rule
exempts completely buried storage tanks, as well as connected
underground piping, underground ancillary equipment, and containment
systems, when subject to the technical requirements of 40 CFR part 280.
In today's proposal, EPA proposes to continue to defer the aboveground