Based on comments received, EPA is incorporating minor modifications to the proposed notification changes in the 2011 proposed UST regulation.  EPA agrees with commenters who opposed requiring one-time notification of existence for emergency power generator UST systems.  Since these systems are currently only deferred from Subpart D, owners should have notified the appropriate implementing agency when the initial notification requirement became effective in 1986.  Therefore, in the final UST regulation, the requirement for previously deferred UST systems to submit a one-time notification of existence applies only to owners of previously deferred UST systems with field-constructed tanks and previously deferred airport hydrant fuel distribution systems.  This one-time notification of existence does not apply to previously deferred wastewater treatment tank systems, previously deferred UST systems containing radioactive material that are regulated under the Atomic Energy Act of 1954, and previously deferred UST systems that are part of an emergency generator system at nuclear power generation facilities regulated by the Nuclear Regulatory Commission under 10 CFR part 50.

Furthermore, EPA agrees with commenters' requests to extend the time frame for submitting their one-time notification of existence of previously deferred UST systems with field-constructed tanks and airport hydrant fuel distribution systems.  In order to provide more time for owners to identify and gather information about these previously deferred systems, EPA is allowing owners of existing previously deferred UST systems with field-constructed tanks and airport hydrant fuel distribution systems to submit a one-time notification of existence within three years of the effective date of the final UST regulation.  Owners of UST systems with field-constructed tanks and airport hydrant fuel distribution systems installed after the effective date of the final UST regulation will be required to submit notification forms as new facilities; this notification requirement has been in effect for all UST owners since 1986.

Three commenters requested EPA allow 60 days, instead of 30 days, to submit a notification of ownership change, noting that the 30-day requirement is too stringent.  One commenter stated that the time frame should be relaxed to account for large organizations where paperwork could involve a significant amount of time to process.  Another stated that 30 days would be too short and unduly burdensome on small businesses.  EPA considered these arguments, but is moving forward to require owners to submit notification of ownership change within 30 days of assuming ownership of regulated UST systems; this will ensure consistency with the current requirement that owners submit notification within 30 days of bringing USTs into use.

Two commenters suggested EPA allow either the old or new owner to submit the notification of ownership change form.  One commenter recommended EPA require both the buyer and seller to complete the ownership change form.  For implementation reasons, it is more appropriate for EPA to associate ownership change with the new owner since the new owner (i.e., buyer) becomes responsible for ongoing operation and maintenance of the UST system.  It is more useful for EPA to have the current owner's information and signature on file for compliance and recordkeeping purposes.  Requiring both the buyer and seller to complete an ownership change form is duplicative and potentially confusing for the implementing agency.  As a result, EPA is only requiring the current owner to submit a notification form when assuming ownership of regulated USTs.

EPA received several suggestions regarding specific items on the revised notification and new notification of ownership change forms.  EPA disagrees with two commenters who requested EPA add transaction date to the notification of ownership change form.  EPA will be requiring a date of ownership change, which is the same as the transaction date.  EPA disagrees with the commenter who believed EPA deleted tester information from the Certification Of Installation section in the Notification For Underground Storage Tanks form and wanted EPA to restore it.  This information was not required in the original form or the current notification form.

EPA disagrees with the commenter who suggested EPA use only one form to cover new notification and ownership changes.  The purposes of the two forms are different enough to warrant separate forms.  The ownership change notification form ensures the implementing agency knows who the current owner is; the Notification For Underground Storage Tanks form primarily provides the implementing agency with information about new installation of and changes to UST systems.  The latter form requires knowledge of detailed information regarding the tank and piping attributes of each UST system at the location.  The event that triggers the notification requirement for each form does not necessarily have to occur at the same time (i.e., assuming ownership of a gas station does not necessarily mean the owner will install a new UST).  As such, having one form cover both purposes may be confusing to the owner.  Thus, EPA is providing a separate one-page notification of ownership change form, which makes it easier for owners who have just assumed ownership of an UST system to notify the appropriate implementing agency.

Two commenters noted that owners of previously deferred UST systems would be unable to complete the Certification Of Installation section of the Notification For Underground Storage Tanks form because they were not subject to this requirement at the time of installation.  In addition, records of installation for these previously deferred UST systems are likely to be nonexistent given the passage of time since installation.  EPA agrees with these commenters and is revising the notification form to indicate that only owners of UST systems with field-constructed tanks and airport hydrant distribution systems installed after the effective date of the rule need to complete this section.

Two commenters indicated it was unclear who the implementing agency is and whether owners and operators need to notify both the state and EPA.  In the final UST regulation, EPA is clarifying that notification forms should be submitted to the appropriate implementing agency.  The term implementing agency is defined in the 1988 UST regulation; owners should be aware of which regulations apply to them.  In practice, EPA expects that most owners will submit their notification forms only to their state, except in instances where the implementing agency is EPA.  For example, EPA is the implementing agency for USTs located in Indian country; thus, owners with USTs in Indian country would submit their notification forms to EPA.  Owners should also be aware that individual states may have state versions of these forms which owners should use instead when submitting to state implementing agencies.

EPA agrees with the commenter who suggested EPA should add regulatory language to several portions of § 280.22 and indicate owners can use state forms.

EPA considered additional requirements for notification in these circumstances requested by three commenters:  a tank goes into temporarily out of service status and there is a change of address or contact information.  Because of the potential additional burden on owners and since they were not considered in the 2011 proposed UST regulation, EPA is not including these additions.

Lastly, EPA solicited comments on whether a one-time notification for all UST owners was necessary to effectively administer the UST program in jurisdictions (eight states and territories and Indian country) where implementing agencies do not currently require ownership change notification.  While eight commenters supported this idea, EPA is not requiring this one-time notification due to the burden it would impose on owners in these jurisdictions.

Proposal To Revise The Compatibility Requirements And Definitions Of Motor Fuel And Regulated Substance

Summary

   * More than 50 commenters provided input on EPA's proposal to revise the compatibility requirements and the definitions of motor fuel and regulated substances   -  12 supported it; 12 opposed it
   * Commenters expressed concern about:
         o the effort and cost of determining compatibility for existing systems
         o not specifically allowing professional engineers to determine compatibility
         o new unknown fuels of the future
         o determining concentrations of ethanol and biodiesel in biofuels
   * Some commenters thought EPA should tier the options for determining compatibility, making some options preferable over others

Support

Eight commenters supported the proposal.  One commenter supported the compatibility proposal for ethanol blends containing greater than 10 percent ethanol.  One commenter supported the manufacturer's self-certification option.  One commenter encouraged EPA to promulgate strict compatibility requirements for gasoline containing greater than 10 percent ethanol and diesel containing greater than 20 percent biodiesel.  One commenter expressed support, but was concerned about the ability to enforce the requirement if gasoline containing 10 percent ethanol is replaced with gasoline containing 15 percent ethanol.

Commenters: [0239, 0289, 0295, 0313, 0326, 0337, 0342, 0343, 0344, 0348, 0367, 0370]

Oppose

Five commenters opposed the proposal.  One commenter suggested the compatibility language should be stronger, require a tiered approach, and allow use of professional engineers.  Eight commenters said the regulation is impractical, cumbersome, or a large burden on regulated owners and operators because of variations in UST system configurations, ages of UST system equipment, and lack of knowledge of what is installed at the UST facility.  One commenter supported realistic and cost effective alternatives for demonstrating compatibility, but also voiced doubts that equipment manufacturers would agree to approve legacy equipment.  The same commenter also indicated that leaving compatibility standards to state regulators is not realistic or cost effective.

Commenters: [0238, 0264, 0298, 0312, 0317, 0349, 0352, 0363, 0383, 0402, 0416, 0418]

Definition Of Motor Fuel

One commenter supported the motor fuel definition changes.  One commenter suggested changing the definition of motor fuel to recognize the modified definition of regulated substance because the current wording limits the definition to petroleum or petroleum based substances; the definition should say complex blends of hydrocarbons so it includes green gasoline.  One commenter suggested EPA add biofuels to the definition of motor fuel.

Commenters: [0313, 0399, 0412]

Definition Of Regulated Substance

One commenter suggested the definition of regulated substance is appropriate without the proposed change because a change would require states to modify their definitions.  One commenter asked whether the definition of regulated substance now includes renewable fuels.

Commenters: [0326, 0343]

Additional Methods For Effectively Demonstrating Compatibility

EPA asked commenters whether there are additional methods to effectively demonstrate compatibility and whether EPA should consider allowing professional engineers to make compatibility determinations.  Six commenters indicated there are no additional methods for demonstrating compatibility.  One commenter suggested requiring third party verification, particularly for higher ethanol blends, in lieu of accepting manufacturer's statements.  One commenter suggested using past performance of materials.  One commenter asked EPA to develop a risk-based assessment, which could be based on criteria such as equipment age, type of equipment, inspection history, repair history, etc., for legacy equipment.  One commenter indicated more testing is needed to determine compatibility and that EPA should conduct comprehensive testing of all classes of USTs to determine compatibility.  Four commenters wanted EPA to allow registered professional engineers to make compatibility determinations.  One commenter believed testing was the best method for determining compatibility.  One commenter indicated literature might be able to help determine compatibility.  One commenter did not know of any additional methods for demonstrating compatibility.

Commenters: [0222, 0233, 0237, 0238, 0243, 0311, 0312, 0313, 0316, 0338, 0352, 0363, 0388, 0399, 0421, 0427]

Alternatives To Demonstrating Compatibility

EPA asked commenters whether there are other alternatives to demonstrating compatibility (such as using secondarily contained USTs) that are no less protective of human health and the environment.  Three commenters suggested using secondary containment in lieu of making a compatibility determination.  One commenter indicated there may be alternatives and EPA should allow flexibility.  Thirteen commenters indicated EPA should not allow secondary containment in lieu of demonstrating compatibility, because secondary containment can be less protective and it is different from compatibility.  One commenter indicated EPA should require in-tank release detection, rather than groundwater or vapor monitoring, for tanks that cannot provide compatibility documentation.  One commenter did not know of any alternatives to demonstrating compatibility.

Commenters: [0222, 0233, 0237, 0238, 0243, 0265, 0311, 0313, 0316, 0337, 0352, 0388, 0394, 0396, 0399]

Proposed Criteria For Manufacturer's Approval

EPA asked commenters whether the criteria we proposed for meeting manufacturer's approval are reasonable.  Eleven commenters indicated the criteria are reasonable.  One commenter indicated the final UST regulation should require manufacturers to specify testing they must conduct to demonstrate compatibility of their equipment or components.  Six commenters indicated the final UST regulation should require manufacturers provide testing data used to make the compatibility determination; some commenters indicated the data should be empirical data, similar to that provided by a nationally recognized testing laboratory.  One commenter indicated EPA should add a list of components, which require compatibility approval.  One commenter indicated EPA should require owners and operators have financial responsibility if they use the manufacturer's approval option.  One commenter indicated manufacturer's approval does not work if the manufacturer is no longer in business.

Commenters: [0222, 0233, 0237, 0238, 0243, 0301, 0311, 0313, 0316, 0337, 0352, 0363, 0394, 0395, 0396, 0399, 0401, 0405, 0409, 0412, 0413, 0422]

Tiering The Methods For Determining Compatibility

EPA asked commenters whether we should tier the different options used to determine compatibility; for example, owners may not use manufacturer's approval if a nationally recognized association has determined whether a component is compatible.  Eight commenters opposed EPA tiering compatibility; most wanted to maintain flexibility for owners and operators and one thought the manufacturer might lose liability if a nationally recognized testing laboratory approved a component and the manufacturer was not allowed to approve the component.  Seven commenters supported tiering.  Of these, two suggested manufacturer certification is preferable over nationally recognized testing laboratory certification; three suggested a nationally recognized testing laboratory or third party certification be preferred over manufacturer's certification; and one suggested that new equipment needs to be listed by a nationally recognized testing laboratory.  Two commenters were unsure about whether tiering methods should be included in the final UST regulation.

Commenters: [0222, 0237, 0238, 0243, 0311, 0313, 0316, 0337, 0334, 0352, 0372, 0394, 0396, 0399, 0401, 0405, 0409, 0423]

Records Transfer

The 2011 proposed UST regulation suggested owners and operators maintain records to demonstrate compatibility, but it did not include transferring records when ownership of the facility changed.  EPA asked commenters whether the final UST regulation should require that records transfer with ownership changes.  Thirteen commenters indicated EPA should require that records transfer with ownership changes.  Of the commenters supporting a records transfer requirement: one indicated this requirement would be difficult to enforce; another indicated EPA should clearly indicate which records would transfer; and another wanted to place the burden on the previous owner.  One commenter did not believe records should transfer with ownership changes because it would be impossible to enforce.  One commenter suggested the only way records can be maintained is for owners and operators to submit records to implementing agencies.

Commenters: [0222, 0233, 0237, 0238, 0243, 0265, 0311, 0313, 0316, 0337, 0352, 0396, 0397, 0399, 0422]

Other Comments

EPA received these other comments about compatibility:

   * Take into account other new fuels that may be marketed in the future
   * Decide on the type of alternative fuels before considering how to dispense the fuel
   * Take into account known issues for some components affected by lower percentages of ethanol and biodiesel blends
   * Phase in the requirements, since it will be difficult to determine compatibility for some UST system components; two and three years were given as options
   * Add a pre-notification requirement so implementing agencies have an opportunity to confirm compatibility
   * Only require recordkeeping where there is a reportable release attributed to compatibility, or explore the idea of a sealable or lockable book attached to all UST systems
   * Require owners to maintain records of compatibility, including equipment modifications after installation
   * Add dispenser filters, hoses, and couplings to the list of compatible items
   * Add the list of compatible components to the final UST regulation
   * Limit implementing agencies' flexibility in determining compatibility
   * Need liability protection for owners and operators storing alternative fuels
   * Clearly require the entire UST system, including exterior, to be compatible
   * Consider ensuring tank linings are designed and constructed with materials or coatings resistant to attack by microbial corrosion; early stage treatment of biofuels is key
   * Conduct an economic analysis about how the regulated community will ultimately be impacted
   * Continue to reference American Petroleum Institute (API) Recommended Practice 1626
   * Develop guidance for alternative compatibility testing, a standard form or procedure for determining compatibility, and about demonstrating compatibility
   * Provide more justification about why 10 percent for ethanol and 20 percent for biodiesel was chosen
   * Provide some flexibility regarding concentration since ethanol and biodiesel blends can vary somewhat in concentration
   * Add language to address discrepancies between published and actual concentrations of alternative fuels
   * Clarify that the requirement is applicable to any other regulated substance of concern and not all regulated substances in the opening sentence
   * Add to the explanation of under-dispenser containment that under-dispenser containment must be compatible with the substance in the piping
   * Seek statutory changes that will ensure UST compatibility does not pose a barrier to renewable fuels standards implementation

Commenters: [0298, 0301, 0312, 0316, 0335, 0337, 0339, 0342, 0343, 0352, 0363, 0364, 0371, 0399, 0402, 0418, 0421, 0424, 0427]

EPA Response

EPA thinks that compatibility of UST systems with the regulated substance stored in the system is important in preventing releases to the environment.  EPA is continuing to require that UST systems be made of or lined with materials compatible with the substance stored.  In addition, the final UST regulation requires owners and operators demonstrate compatibility or use another option determined by implementing agencies to be no less protective than the compatibility demonstration options for UST systems storing regulated substances containing greater than 10 percent ethanol, 20 percent biodiesel, and other regulated substances identified by implementing agencies.  The 2011 proposed UST regulation included a list of components in the preamble but not the regulation.  EPA is making the list more general and including it in the final UST regulation.

The final UST regulation includes certification or listing by a nationally recognized independent testing laboratory and manufacturer's approval as methods owners and operators may use to demonstrate compatibility.  In the absence of and as an alternative to demonstrating compatibility, implementing agencies may choose to accept other options for allowing the continued use of UST systems storing regulated substances containing greater than 10 percent ethanol or 20 percent biodiesel.  For example, in lieu of an affirmative compatibility determination, implementing agencies may allow secondarily contained UST systems using interstitial monitoring to store regulated substances containing greater than 10 percent ethanol or 20 percent biodiesel, because a release from the primary containment will be contained by the secondary and detected by the interstitial monitoring before a release reaches the environment.

The 2011 proposed UST regulation recommended maintaining records for both demonstrating compatibility when storing regulated substances containing greater than 10 percent ethanol, 20 percent biodiesel, and other regulated substances identified by an implementing agency as well as all new and replaced UST system equipment and components.  Based on comments, EPA determined the proposed recordkeeping requirement for all new and replaced UST system equipment and components is too onerous for owners and operators.  Instead, EPA is only requiring notification 30 days before storing regulated substances containing greater than 10 percent ethanol, 20 percent biodiesel, and other regulated substances identified by implementing agencies.  This will allow implementing agencies the opportunity to ensure UST systems are compatible with new regulated substances before they are stored in UST systems.  The final UST regulation requires owners and operators document compliance with either the compatibility demonstration or other options acceptable by implementing agencies by maintaining records for UST systems storing regulated substances containing greater than 10 percent ethanol, 20 percent biodiesel, and other regulated substances identified by implementing agencies.  EPA concurs with the comment that owners maintain records of compatibility, including those associated with modifications to an UST system after installation.  However, EPA thinks requiring this for regulated substances that have been used for many years is a potentially unworkable requirement for owners and operators.  So, while EPA supports and encourages recordkeeping for all regulated substances, we will only require recordkeeping as specified above.

Some commenters suggested adding other options owners and operators could use for determining compatibility.  One option was certification by a professional engineer (P.E.), who would perform an on-site UST system analysis to determine compatibility.  For this to work, a P.E. would need to know the manufacturer and model of all UST system equipment or components.  Because this information cannot be entirely obtained through visual observation, a P.E. would need to obtain records of the equipment to make an assessment and then search for relevant equipment listings or manufacturer certifications.  This means a P.E. certification option is the same as the options in today's final UST regulation.  EPA does not object to a P.E. performing a records review; however, we think it is impractical for a P.E. to perform a visual assessment of an UST system and make a compatibility determination in the absence of equipment records and certifications.  Therefore, EPA is not explicitly allowing professional engineers to make compatibility determinations in the absence of UST system information and compatibility certifications.  Commenters suggested several other methods for determining compatibility, including past performance of the equipment or component, a risk-based approach, and using existing literature.  EPA concluded these alternatives are either impractical or ineffective for ensuring compatibility when compared to those in the final UST regulation.  Past performance of the equipment or component may not represent use with newer alternative fuels, no one presented a reasonable risk-based approach, and information in the literature to date is sparse.

Some commenters suggested EPA use a tiered approach for compatibility and choose one method of determining compatibility over others.  Several commenters preferred certification or listing by a nationally recognized independent testing laboratory over manufacturer approval; others preferred manufacturer's approval over the independent testing laboratory.  One commenter suggested eliminating the manufacturer's approval option.  Most commenters, however, did not think EPA needed to tier the options for demonstrating compatibility.  EPA agrees with commenters who did not want to tier options.  EPA interprets tiering to mean requiring the more stringent option, which is listing by a nationally recognized independent testing laboratory, first.  If the more stringent option is unavailable, the second tier would allow manufacturer's approval.  EPA thinks tiering the options makes the UST regulation unnecessarily complicated for implementing agencies as well as owners and operators.  Even if equipment or components have a listing from a nationally recognized independent testing laboratory, we do not always know whether compatibility testing was part of the listing.  EPA thinks manufacturers will only issue written claims of compatibility if they have sufficient information to support such claims.

EPA asked commenters whether the criteria manufacturers must follow are reasonable.  Many commenters indicated the criteria are reasonable.  Some commenters wanted EPA to require manufacturers to support their compatibility approvals with testing data.  We acknowledge that the element of testing may make commenters more comfortable with allowing manufacturer's self-certification.  However, absent nationally recognized compatibility test protocols for each piece of equipment or component and general agreement on what constitutes acceptable test results, implementing agencies are not in a position to assess the sufficiency of the tests.  EPA concluded that manufacturers are uniquely suited to attest to the compatibility of their products and have an incentive to make truthful claims regarding use of their equipment or components with biofuel blends.  Therefore, in the final UST regulation, EPA is not requiring manufacturers to support their compatibility approvals with testing data.  One commenter suggested EPA require owners and operators have financial responsibility if using the manufacturer option for determining compatibility.  The 1988 UST regulation requires owners and operators have financial responsibility and that requirement remains unchanged.  EPA agrees with the commenter who indicated the manufacturer's approval option is not viable if the manufacturer no longer exists and the manufacturer never issued a written affirmative statement of compatibility.  If the manufacturer no longer exists and an approval does not exist, owners and operators cannot use that option.

One commenter suggested adding dispenser components to the list of components that must be compatible.  EPA cannot require these components be compatible because our authority for release prevention does not cover aboveground components.

Commenters provided input about the difficulty of determining compatibility of some UST system equipment or components already installed in the ground and how compatibility determinations will be difficult, cumbersome, costly, and impractical.  In addition, one commenter suggested manufacturers either may not exist anymore or be unwilling to provide a compatibility determination for legacy equipment.  EPA understands it may sometimes be difficult or impossible to determine compatibility.  EPA understands that, in many cases, some equipment or components of UST systems in the ground today are not compatible with newer fuels.  Unless owners and operators specifically asked for a complete UST system compatible with higher ethanol or biodiesel blends, installers probably used a lower cost option for certain UST system equipment, such as the submersible turbine pump assembly, which is incompatible with some newer fuels.  Those parts of the UST system will need to be upgraded or replaced before storing higher blends of ethanol or biodiesel.  The incompatible equipment or components are usually easier to upgrade or replace because they are typically located in areas not requiring excavation, such as containment sumps.  To protect the environment from releases of regulated substances, owners and operators must do one of the following:

   * Demonstrate the UST system is compatible with ethanol blends greater than 10 percent and biodiesel blends greater than 20 percent through certification or listing by a nationally recognized independent testing laboratory or manufacturer approval
   * Replace the equipment or components not compatible or for which compatibility cannot be determined
   * Use another option determined by an implementing agency to be no less protective of human health and the environment
   * Not store these regulated substances in their UST systems

EPA asked whether there are additional methods for effectively demonstrating compatibility.  One commenter suggested using in-tank release detection instead of a compatibility determination.  EPA disagrees with this because release detection has been required since 1993 and in-tank release detection for a single walled tank may not prevent a release to the environment if it fails due to incompatibility.  Several commenters suggested using secondary containment and interstitial monitoring.  However, most commenters did not want to replace compatibility with secondary containment and interstitial monitoring.  EPA believes that, when used properly, secondary containment with interstitial monitoring will detect a release from the tank or piping before regulated substances reach the environment.  However, because of comments we received, EPA is not specifically including this option in the final UST regulation.  We are, however, allowing implementing agencies to make a determination that a method is no less protective than those already listed in the final UST regulation.  This means implementing agencies may determine that secondary containment with interstitial monitoring is adequate in cases where compatibility cannot be determined.

Several commenters indicated EPA should not allow implementing agencies flexibility to determine other options.  EPA understands it is difficult for owners and operators to keep up with UST requirements in 56 states and territories.  However, states and territories are the primary implementers of the UST program and as of 2014, EPA approved 38 state UST programs, the District of Columbia, and Puerto Rico to operate in lieu of the federal UST program.  These 38 states, the District of Columbia, and Puerto Rico rely on their requirements rather than the federal UST requirements and may have different options for determining compatibility.  EPA will continue to allow other options, as long as those options sufficiently protect human health and the environment.

One commenter expressed concern that new fuels may enter the market in the future.  EPA understands this concern and is including other regulated substances identified by an implementing agency.  This means states and EPA have flexibility in identifying new fuels that may enter the market after the final UST regulation is promulgated.

EPA asked commenters to provide input on whether the final UST regulation should require owners to transfer records to the new owner when a regulated UST facility is sold.  Although most commenters supported a records transfer requirement, EPA decided not to include it in the final UST regulation because we had concerns about the effective implementation of such a requirement, especially because it involves current and past owners and records that may be incomplete or no longer exist.

One commenter suggested EPA continue referencing API Recommended Practice 1626 in the compatibility section of the final UST regulation.  API updated this code of practice in 2010.  The updated code includes requirements for showing compatibility of UST system equipment or components.  EPA agrees with the commenter and is including this code of practice in the final UST regulation.

One commenter suggested EPA require the entire UST system including exterior be compatible.  Another suggested EPA require tank linings be designed and constructed with materials or coatings resistant to attack by microbial corrosion.  Although EPA thinks it is prudent to ensure the entire UST system is compatible, the final UST regulation requires that UST systems be made of or lined with materials compatible with the substance stored in the UST system; these are the areas that routinely come into contact with the regulated substance.

Several commenters requested guidance and checklists for compatibility determinations.  EPA agrees and, after the final UST regulation is published in the Federal Register, will develop resources to help owners and operators understand and implement the compatibility requirements.

To ensure compatibility is not a barrier to implementation of the renewable fuels standard, some commenters requested liability protection and other changes to the 2011 proposed UST regulation.  Another commenter suggested EPA should decide on the type of new future fuels before considering how to dispense them.  These comments are beyond the scope of the final UST regulation and require legislative action.

One commenter indicated EPA should conduct an economic analysis to determine how the final UST regulation will affect the regulated community.  As with all regulations, EPA conducted an economic analysis and it is part of the docket associated with this regulation.

One commenter indicated that in the 2011 proposed UST regulation, EPA did not take into account known issues for some equipment or components affected by the lower percentages of ethanol and biodiesel blends.  Another commenter indicated EPA should provide more justification about why we chose 10 percent for ethanol and 20 percent for biodiesel.  As EPA noted in the preamble to the 2011 proposed UST regulation, we understand that the chemical and physical properties of ethanol and biodiesel can be more degrading to certain UST system materials than petroleum alone.  Use of ethanol- and biodiesel-blended fuels is increasing, and EPA is concerned that not all UST system equipment or components are compatible with these fuel blends.  Gasoline containing 10 percent or less ethanol (E10) has been used in parts of the United States for many years, and manufacturers accommodated the E10 market by producing compatible equipment and components.  According to the Renewable Fuels Association, ethanol is blended into over 90 percent of all gasoline sold in the country, predominantly as E10.  EPA understands the properties of very low blends of biodiesel, such as B5 or less, are so similar to those of petroleum diesel that ASTM International (ASTM) considers conventional diesel containing up to 5 percent biodiesel to meet its Standard Specification for Diesel Fuel Oils.  For biodiesel blends between 5 and 100 percent, there is very little compatibility information.  However, the U.S. Department of Energy's National Renewal Energy Laboratory published a handling and use guide, which concludes that biodiesel blends of B20 or less have less of an effect on materials and very low blends of biodiesel (for example, B5 and B2) "...have no noticeable effect on materials compatibility."  In addition, fleet service sites have stored B20 in USTs for years, and EPA is not aware of compatibility-related releases associated with those UST systems.  Based on this information, EPA is more concerned with UST systems storing greater than 10 percent ethanol blended gasoline and greater than 20 percent biodiesel blended with diesel.

Several commenters suggested EPA phase in the requirements, since it will be difficult to determine compatibility for some UST system equipment or components.  EPA understands why commenters want to phase in the compatibility requirements for petroleum blended with greater than 10 percent ethanol and greater than 20 percent biodiesel.  However, the compatibility requirements have been in the UST regulation since 1988 and owners and operators have been required to ensure compatibility since then.  EPA is only adding options for determining compatibility of certain regulated substances to the existing compatibility requirement.  Owners and operators have been required to use compatible equipment or components.  Therefore, EPA will implement the options for determining compatibility on the effective date of the final UST regulation.

One commenter suggested EPA should provide some flexibility regarding ethanol and biodiesel concentration in fuel since ethanol and biodiesel blend concentrations can vary.  Another commenter indicated the 2011 proposed UST regulation did not address discrepancies between published and actual concentrations of alternative fuels.  As described in the preamble to the 2011 proposed UST regulation, EPA chose greater than 10 percent ethanol and greater than 20 percent biodiesel based on existing literature about the compatibility of these fuel blends.  In developing the 2011 proposed UST regulation, EPA had to set values for the blends and we are including them in the final UST regulation.  EPA has no control over variation in concentrations of fuels, but we understand that fuels meeting the American Society for Testing and Materials (ASTM) specifications are reasonably within concentration tolerances.  EPA believes most fuel is within the ASTM specification.

EPA disagrees with one commenter who suggested requiring recordkeeping only where there is a reportable release attributed to compatibility.  Requiring recordkeeping only after a release has occurred is a reactive approach.  EPA is taking a proactive approach by requiring records be maintained demonstrating compatibility before a regulated substance is stored, thereby preventing releases to the environment.

 One commenter suggested EPA clarify that the compatibility requirement is applicable to any other regulated substance of concern and not all regulated substances in the opening sentence of the compatibility requirement.  EPA agrees with this commenter and is using the term other in the final UST regulation, rather than the term all.

One commenter indicated EPA should add to the final UST regulation that under-dispenser containment must be compatible with the substance in the piping.  The final UST regulation requires that the UST system be made of or lined with materials compatible with the substance stored in the UST system.  Under-dispenser containment is part of the UST system and must be made of or lined with materials compatible with the substance stored in the UST system.

Commenters did not oppose the change in definition of motor fuel.  Therefore, EPA is including that change, with one modification, in the final UST regulation.  One commenter suggested changing the definition of motor fuel to recognize the modified definition of regulated substance.  The commenter indicated the current wording limits the definition to petroleum or petroleum based substances.  Rather, it should say complex blends of hydrocarbons so it includes green gasoline, a type of motor fuel derived from plants.  EPA agrees that using terms inconsistent with those in the definition of motor fuel creates a problem in the final UST regulation; we are revising the definition of motor fuel to be consistent with the definition of regulated substance.  One commenter suggested adding biofuels to the definition.  However, biofuels are already included in the definition where EPA describes blends, which includes fuels containing petroleum and ethanol or other substances.

Since no commenters opposed changes to the definition of regulated substance, EPA is including that change in the final UST regulation.
Proposal To Improve Repairs

Summary

   * 35 commenters provided input on EPA's proposal to revise the definition of repair and make changes to the repairs section of 40 CFR part 280  -  commenters generally supported the proposal and suggested changes to both the repair definition and repairs section of the proposal

Support

Four commenters generally supported the proposal.

Commenters: [0343, 0344, 0388, 0413]

Oppose

No commenters opposed the proposal.

Changes To Repair Definition

One commenter generally supported EPA's changes to the repair definition.  Four commenters indicated the term restore in the definition was undefined and recommended EPA further define that term.  One commenter suggested adding "equipment showing an eminent threat of potential failure" to the definition.  One commenter suggested deleting "or a suspected release" and "or has failed to function properly" from the definition due to reporting and regulatory burdens.

Commenters: [0308, 0316, 0342, 0348, 0404, 0407]

Changes To The Repair Section (§ 280.33)

Seven commenters recommended EPA be clear that the components to be tested are only those being repaired.  Two commenters suggested that replacing components not trigger the repair testing requirements.  EPA also received the following comments:

   * Recommending that it is not essential to subject secondarily contained UST systems to secondary containment testing if the primary tank is tightness tested and the secondary containment is effectively monitored to detect and contain a release;
   * Suggesting EPA strengthen the requirements for repairs to fiberglass tanks to include a certification of repair indicating the tank will not fail due to structural failure for some period of time;
   * Asking for clarification on a repair versus a replacement and testing requirements for both repair and replace;
   * Requesting guidance about what is an acceptable repair;
   * Discussing an apparent conflict between 280.33(d)(2) and (d)(3)  -  one section says facilities do not need to do a tightness test if doing monthly monitoring while the other says facilities do;
   * Requiring third party tightness testing following a repair instead of allowing the monthly leak detection option;
   * Suggesting that EPA allow owners and operators of secondarily contained UST systems that fail a secondary containment test to be downgraded to a single walled system as long as the primary containment tests tight; and
   * Suggesting EPA require inspection rather than testing of overfill devices after any repairs.

Commenters: [0239, 0242, 0267, 0313, 0316, 0332, 0336, 0339, 0346, 0349, 0368, 0399, 0416, 0422, 0427]

30 Day Time Frame For Conducting Secondary Containment, Spill, And Overfill Testing Following A Repair

EPA asked whether the time frame for conducting secondary containment, spill, and overfill testing should change from within 30 days following a repair to before returning the UST system to service.  Thirteen commenters supported changing the time frame to before returning the UST system to service while five commenters supported some time frame after returning the UST system to service.  Two commenters suggested one year and one commenter suggested 60 days following the repair.  One commenter suggest allowing tests to be conducted immediately after the repair was made because it makes environmental sense and wouldn't require that the contractor return to the facility a month later.

Commenters: [0222, 0233, 0237, 0238, 0243, 0265, 0302, 0308, 0311, 0313, 0316, 0339, 0342, 0346, 0349, 0350, 0396, 0399, 0404]

EPA Response

Based on the comments received, EPA is adding language which clarifies the definition of repair so the term restore, as it relates to UST system components, will mean restore to proper operating condition.  In addition, EPA agrees with suggestions to remove suspected releases from the repair definition so only UST system components that caused a release of product from the UST system or failed to function properly meet the definition of repair.  EPA disagrees that the language about UST system components failing to function properly needs to be removed from the definition.  Repairs (and associated testing) need to occur both when a release occurs and when UST system equipment is not functioning properly.

EPA agrees with commenters concerned about unnecessary testing of UST system equipment not repaired or affected by the repair.  EPA is clarifying the repairs section so follow up testing applies only to the UST system component repaired.  In addition, EPA is making clear that secondary containment testing following a repair only applies if the secondary containment area is repaired.  Repairs to the primary containment areas of tanks and piping may be tested using the other options listed in the repairs section.  EPA is also clarifying that overfill equipment is inspected, rather than tested, following a repair.  EPA disagrees with the comment that fiberglass tank repair requirements need to be strengthened.  Fiberglass tank repair requirements are consistent with repair requirements for other types of tank construction.

Even though most commenters supported revising the time frame for testing or inspecting following a repair to be before the UST system is brought back into service, EPA is aware of circumstances where immediate testing or inspecting may be impossible (for example weather conditions, remote locations, or scheduling the test).  That means requiring immediate testing or inspecting would result in the UST system remaining out of operation until the test or inspection is completed.  Thirty days allows some flexibility for completing tests or inspections, yet allows the UST system to return to operation.  EPA thinks it is too long to allow 60 days or one year for tests or inspections following a repair.  EPA expects owners and operators test or inspect as soon as possible after completing a repair.  Therefore, EPA is keeping the 30 day time frame for owners and operators to test or inspect following a repair.

One commenter suggested EPA require testing following replacement in the repairs section and two commenters did not want the repair requirements to apply to UST components that are replaced.  EPA considers replacement the same as installing a new UST system component.  Any replaced components will need to meet the installation requirements for new UST systems in § 280.20(d).

UST systems installed or replaced after the final UST regulation becomes effective and hazardous substance UST systems must be secondarily contained and use interstitial monitoring.  Downgrading an UST system to single walled as one commenter suggested is less protective of the environment than secondarily contained UST systems; interstitial monitoring cannot be used if the UST system is downgraded to a single walled UST system under these conditions.

EPA disagrees with the commenter wanting to require third party tightness testing following a repair instead of allowing the monthly release detection option.  The 1988 UST regulation allowed multiple options for testing following a repair, including tightness testing, internal inspection, and monthly monitoring.  The updated UST regulation will continue to allow owners and operators flexibility for testing following a repair.

EPA agrees with the comment about a conflict between testing requirements following a repair and is revising the language in the final UST regulation to remove the conflict.

Proposal To Eliminate Vapor Monitoring And Groundwater Monitoring As Release Detection Methods

Summary

   * 35 commenters provided input on EPA's proposal to phase out vapor monitoring and groundwater monitoring as release detection methods  -  18 supported it; 13 opposed it
   * Time frame of five years to phase out methods: 5 supported it; 11 thought it too long; 1 indicated a five year phase out was sufficient only if the tank system needed to be upgraded
   * Circumstances for continued use: 13 commenters suggested EPA continue to allow use of the methods under certain circumstances, which covered four areas:
         o 2 commenters suggested allowing methods until systems are upgraded
         o 5 commenters suggested allowing if the implementing agency already has or will establish additional criteria for use
         o 6 commenters suggested allowing for specific UST systems
         o 5 commenters suggested a preference for keeping one method over the other
   * EPA's estimate of systems using these methods: 2 supported the 5 percent estimated national use of both methods; 6 said the estimate was too low; 10 indicated the estimate was too high; 7 commenters provided percentage of use estimates
   * Other comments: 14 commenters provided numerous comments, which covered two areas:
         o 8 commenters voiced concern about the economic burden of eliminating the methods
         o 7 commenters described beneficial aspects of these methods as compared to other release detection methods

Support

Eighteen commenters supported the proposal.

Commenters: [0222, 0233, 0238, 0243, 0283, 0308, 0311, 0316, 0324, 0326, 0342, 0343, 0344, 0348, 0360, 0396, 0413, 0422]

Oppose

Thirteen commenters opposed the proposal.

Commenters: [0209, 0265, 0286, 0296, 0313, 0339, 0341, 0350, 0359, 0388, 0389, 0398, 0408]

Time Frame To Phase Out Methods

EPA asked commenters if five years was too short, too long, or an appropriate length of time for owners and operators using vapor monitoring and groundwater monitoring to switch to another method.  Eleven commenters provided input.  Five supported EPA's proposed time frame of five years to phase out the methods.  Eleven commenters indicated the proposed time frame was too long; five of those suggested allowing three years to comply and three suggested a one year time frame was adequate.  One commenter thought the five year phase out was sufficient only if the UST system needed to be upgraded.

Commenters: [0222, 0233, 0311, 0313, 0324, 0341, 0348, 0369, 0396, 0399, 0422]

Circumstances For Continued Use

EPA asked if there were circumstances at existing facilities that would warrant a subset of UST systems using vapor monitoring or groundwater monitoring beyond the proposed phase out period of five years.  Numerous commenters suggested circumstances for continued use of both methods.  The circumstances encompass four major areas: until system upgrade; if the implementing agency already has or will establish additional criteria for use; only for a specific type system; and preference for one method over the other.

Two commenters suggested continuing to allow the use of both methods until the facility is upgraded, tanks are replaced, or major repairs are performed.

Some commenters suggested allowing continued use of vapor monitoring and groundwater monitoring if the implementing agency has previously developed criteria or will develop additional criteria for use.  Suggestions included keeping the methods when the implementing agency inspects and verifies wells are properly constructed and when certification or recertification of groundwater monitoring wells is done to ensure proper installation, slotting, appropriate depth, surface sealing, etc.

Five commenters suggested these categories of UST systems should be allowed to continue using vapor monitoring and groundwater monitoring:

   * Emergency generator USTs;
   * UST systems at high-throughput facilities that exceed the limitations of continuous statistical leak detection methods; and
   * UST systems at airports where vapor monitoring and groundwater monitoring are the only viable leak detection options.

Two commenters also suggested keeping these methods for use at low (5,000 gallons per one commenter) monthly throughput systems if wells are located in close proximity.  Another commenter suggested using the methods as a backup in cases where an automatic tank gauge (ATG) cannot be properly used because fuel levels in the tank are too low.

Some commenters stated a preference for or specifically discussed one method over the other.  One commenter supported phase out of vapor monitoring because groundwater monitoring can indicate leaks that methods such as ATG and statistical inventory reconciliation (SIR) cannot.  Two commenters wanted EPA to continue allowing use of vapor monitoring with chemical markers because this method is more accurate than traditional methods.  EPA assumes the commenters' reference to traditional methods means passive monitoring of petroleum hydrocarbons.  One commenter stated that the array of wells used at sites can detect releases less than 0.1 gallon per hour.  One commenter stated EPA should at least allow owners and operators to petition implementing agencies to use vapor monitoring, since some implementing agencies have approved his company's systems.  Another commenter suggested vapor monitoring should only be allowed for mounded tanks greater than 50,000 gallons that are installed above the groundwater, on top of an impermeable material, and where no leaks have been detected.

Commenters: [0209, 0265, 0296, 0313, 0339, 0341, 0350, 0359, 0369, 0388, 0398, 0399, 0408, 0413]

EPA's Estimate Of UST Systems Using These Methods

EPA asked whether our estimate of 5 percent of active UST systems in the United States use vapor monitoring or groundwater monitoring to comply with release detection requirements was accurate.  Two commenters supported the 5 percent estimated use of both methods, while four commenters stated it was low and five indicated it was too high.  Seven commenters provided estimates of use of the methods in their states, ranging from 0.06 percent to 65 percent.

Commenters: [0222, 0238, 0243, 0265, 0311, 0313, 0324, 0341, 0389, 0396, 0399]

Other Comments
EPA received a variety of other comments, some of which covered two areas: concern over economic burden by no longer allowing these methods and beneficial aspects of these methods compared to other release detection methods.  In addition, there were a few singular comments that were beyond the specific feedback EPA solicited.

Eight commenters voiced concern about the economic burden of discontinuing use of vapor monitoring and groundwater monitoring.  One commenter stated these methods are economical at older, small, family run facilities and forcing these owners to spend money by changing release detection methods does not make sense.  Another commenter indicated there would be a large financial burden to his company to retrofit tanks without access points for tank gauges.  Three commenters expressed concern associated with using internal methods.  One of these commenters stated that without vapor monitoring or groundwater monitoring, there are only two remaining options: ATG and SIR, where use of ATG is not economically feasible for mid to small facilities.  Another commenter indicated installing internal level measurement equipment is cost prohibitive.  A third commenter stated that upgrading from vapor to an internal method could exceed $10,000.  Another commenter estimated that about 65 percent of facilities in his state use these methods.  He indicated it is inherently unfair for EPA to change its mind now and rule these methods are no longer acceptable.

The other area of comments focused on beneficial aspects of vapor monitoring or groundwater monitoring as compared to other release detection methods.  One commenter presented no objection to phasing out the methods, but indicated they are effective when properly installed and used.  Another commenter acknowledged problems with the methods when not constructed properly, but mentioned his implementing agency uses proper construction requirements that, if followed, yield effective release detection.  One commenter indicated these methods offer immediate detection; there is no waiting three to four weeks, and both will detect leaks below established thresholds and in areas not covered by other release detection methods.  This commenter also stated that switching methods does not make sense, especially when allowing SIR, which is not as sensitive and does not cover unaddressed areas of the UST system.  Another commenter stated ATGs are not foolproof and involve human interaction, similar to other methods.  Another commenter indicated that, in his state, the methods detect spills and overfills due to proximity of wells to tanks and releases are largely confined to porous tank backfill due to typical tank installation in clay soil.  This commenter also said the methods are easy to understand and do not have electronic, operational, or maintenance issues, and wells allow self checks of contamination.  Two commenters mentioned reviews of the methods or documentation indicating the methods are better than other methods.  One commenter stated that extensive review indicates methods are more reliable than SIR.  The other commenter mentioned EPA's draft document, Evaluation Of Releases From New And Upgraded USTs, found the methods have the highest rates of success of all methods.  Another commenter said SIR should not be a stand-alone method and that vapor monitoring and groundwater monitoring could be used in conjunction with SIR.

Another commenter suggested EPA make it clear that implementing agencies can require these methods for reasons other than release detection, such as to establish a baseline prior to installation and evaluate depth, quality, and direction of groundwater flow.  The methods are good alternatives and can help avoid expensive remedial efforts involving groundwater impacts.

EPA also received these comments:

   * These methods are needed because they are the only alternatives allowed by federal UST regulation for assessing prior to tank closure and determining if a leak occurred;
   * Releases should be contained with the nationwide shift to secondary containment;
   * The phase out is not mentioned in § 280.43 or other parts of the 2011 proposed UST regulation, EPA should reference back to § 280.41 in § 280.43.

Commenters: [0209, 0265, 0283, 0286, 0296, 0313, 0316, 0341, 0343, 0359, 0389, 0398, 0408, 0421]

EPA Response

Based on the comments received, EPA is continuing to allow vapor monitoring and groundwater monitoring for release detection of existing UST systems, if owners and operators demonstrate proper installation and performance through site assessments.  In addition, EPA is revising the recordkeeping requirement in § 280.45, which means owners and operators must maintain site assessments according to § 280.43(e)(6) and (f)(7) for as long as these methods are used for release detection.  EPA thinks requiring owners and operators to maintain site assessments will ensure installation and performance of these methods can be sufficiently confirmed.

EPA acknowledges comments received regarding the proposed time frame of five years to phase out the methods.  However, those comments are no longer relevant since EPA decided to continue allowing these methods of release detection.

EPA considered numerous suggestions, which would allow for continued use of vapor monitoring and groundwater monitoring.  Commenters suggested waiting until the tank or UST system is upgraded without requiring a site assessment; however, this would not address concerns identified in the 2011 proposed UST regulation.

EPA also considered allowing additional criteria already established or that can be established by implementing agencies, such as initial certification and periodic recertification inspections to confirm proper installation of wells.

After reviewing public comments, EPA gathered additional information and determined a number of implementing agencies specify beneficial criteria beyond or more specific to the site assessment than required by the 1988 UST regulation.  These criteria include placing wells at least 50 feet apart and maintaining installation and site assessment documentation for as long as the methods are used.  These criteria are specified through either regulatory requirements or supplemental information recognized by implementing agencies.  Some implementing agencies perform pre-construction inspections or periodically verify construction features of monitoring wells for these methods beyond their routine compliance inspections.  EPA is unaware of implementing agencies that require periodic recertification of monitoring wells used for release detection purposes.  The 1988 UST regulation adequately defined criteria for using vapor monitoring and groundwater monitoring, given the variation of conditions at UST sites across the country.  EPA thinks that maintaining the site assessment for as long as the methods are used would adequately address technical issues in the 2011 proposed UST regulation.  EPA supports implementing agencies' efforts to better define the criteria specific to their jurisdictions.  Implementing agencies will continue to review and accept site assessments according to their program policies.

Commenters also suggested emergency generator USTs, certain high-throughput UST systems, and specific low volume systems be allowed to continue using vapor monitoring and groundwater monitoring.  EPA agrees that owners and operators of these UST systems could benefit from continued use of these methods until owners and operators upgrade or replace their UST systems to meet the secondary containment requirement.  EPA also received comments in favor of expanding the proposed release detection options owners and operators could use to meet the release detection requirement at airport hydrant fuel distribution systems and field-constructed USTs.  Tailoring requirements to allow owners and operators to use vapor monitoring and groundwater monitoring at these previously deferred systems and requiring a site assessment for as long as the methods are used provides marked environmental protection beyond the 1988 UST regulations.  EPA's final UST regulation is allowing owners and operators this additional flexibility.

Some commenters stated a preference for or specifically discussed one method over the other.  Two commenters wanted to keep groundwater monitoring, specifically the subcategory that uses chemical markers instead of relying on interception of released petroleum hydrocarbons into the environment.  One commenter pointed out that the method uses an array of wells, which are capable of detecting releases less than 0.1 gallons per hour.  EPA acknowledges the increased benefit afforded by the greater sensitivity in sampling for a specific chemical versus petroleum hydrocarbons.  Commenters also asked that EPA allow facilities to petition UST implementing agencies to use this method where they had previously approved it.  This is unnecessary under the final UST regulation.  As long as facilities have appropriate site assessments, owners and operators may continue to use these methods.  In the event a new site assessment is required, at a minimum, a professional engineer or professional geologist, or equivalent licensed professional with experience in environmental engineering, hydrogeology, or other relevant technical discipline acceptable to the UST implementing agency must sign the new site assessment.

Another commenter suggested vapor monitoring should be allowed for mounded tanks greater than 50,000 gallons that are installed above the groundwater table, on top of an impermeable material, and where no leaks have been detected.  EPA is allowing, with similar conditions, use of both vapor monitoring and groundwater monitoring for airport hydrant systems and field-constructed USTs  -  two previously deferred systems.  EPA is addressing release detection requirements for these UST systems in a separate section of the final UST regulation.  Mounded tanks are discussed in the sections covering field-constructed tanks and airport hydrant systems.

Finally, one commenter preferred phasing out only vapor monitoring because groundwater monitoring can indicate leaks from spills that ATG and SIR cannot.  EPA acknowledges there are many additional benefits external methods can provide in determining releases from areas of the UST system that other release detection methods do not cover.  Yet EPA remains concerned with using these methods as primary methods of release detection, since they require sampling in the environment.

Based on comments and subsequent discussions with implementing agencies, EPA confirmed the use of vapor monitoring and groundwater monitoring is 5 percent.  EPA confirmed that although the methods are used infrequently in the majority of jurisdictions, some states often use them.  A significant number of owners and operators in Arkansas, Louisiana, and Mississippi use vapor monitoring, groundwater monitoring, or a combination.  Estimated use of both methods in these states is 29 percent, 12 percent, and 65 percent, respectively.  Confirmation of significant use in one particular geographic area of the country influenced EPA's decision to continue allowing use of these methods.

Commenters voiced concern over the economic burden owners and operators would face if prohibited from using vapor monitoring and groundwater monitoring.  EPA addressed this concern in the regulatory impact analysis.  EPA included costs for switching to SIR, an interior release detection method, as a relatively low-cost alternative for meeting the release detection requirement.  From an environmental protection perspective, EPA continues to view exterior release detection methods as least preferred for primary release detection.  Adding the record keeping requirement to maintain the site assessment for as long as the methods are used should sufficiently address many of EPA's technical concerns with vapor monitoring and groundwater monitoring as primary release detection methods.

EPA agrees with the comment that vapor monitoring and groundwater monitoring are effective methods of release detection if they are properly installed and used.  Determining proper installation and use is essential to EPA's decision to continue allowing these methods.  Maintaining a site assessment will greatly assist in determining whether these methods are properly installed and used.

Each category of release detection method has advantages and disadvantages.  EPA agrees with commenters that, when operating properly, vapor monitoring and groundwater monitoring offer a number of appreciable advantages.  Both methods are easy to understand and users can interpret results on site.  Both methods show an immediate indication of a release at very low contamination levels.  These methods can detect releases from spills and overfills from areas of the UST system that other release detection methods are not designed to pick up.

Commenters mentioned an undisclosed internal review of SIR and an EPA draft document, Evaluation Of Releases From New And Upgraded USTs, which indicated vapor monitoring and groundwater monitoring are better than other release detection methods.  Regarding EPA's draft report, we agree results showed vapor monitoring and groundwater monitoring detected a higher percentage of releases than other methods.

EPA agrees with comments about major benefits for UST system owners and operators to use backup release detection.  However, EPA does not require owners and operators to use a secondary monthly monitoring method for release detection when using another form of release detection, such as SIR.  EPA encourages implementing agencies to also consider the merits of promoting use of groundwater and vapor monitoring for reasons other than release detection.  EPA agrees that, prior to installing an UST system, groundwater monitoring is beneficial in establishing a baseline to determine groundwater depth, quality, and direction of flow, despite which release detection method is used.  EPA also agrees with the commenter who said vapor monitoring as a secondary method of release detection is beneficial.  The method monitors the vadose zone and can help avoid expensive remedial efforts involving groundwater impacts.

EPA disagrees that phasing out the methods as primary methods of release detection would have a negative effect on the use of vapor monitoring and groundwater monitoring to assess sites at closure.  According to § 280.72, owners and operators may use these methods to meet site assessment at closure and change-in service requirements.

EPA agrees with the comment that switching to secondary containment for new and replaced systems should contain all releases.  In the future, relying on intercepting contamination in the environment will no longer occur because all UST systems will eventually move to secondary containment with interstitial monitoring.  Most implementing agencies already have secondary containment requirements in place.  Interstitial monitoring is the required method of release detection for new and replaced UST systems.

Proposal To Clarify Subpart E For Interstitial Monitoring Results, Including Interstitial Alarms

Summary

   * More than 36 commenters provided input on EPA's proposal to clarify owner and operator responsibilities regarding interstitial monitoring results, including interstitial alarms, under subpart E -- 15 supported it; 16 opposed it
   * Several commenters misunderstood EPA's intent regarding reporting alarms; EPA intended that owners and operators need to investigate all alarms, but only report confirmed releases and suspected releases, which are not ruled out by an investigation

Support

Fifteen commenters supported the proposal.

   * Several commenters stated that EPA's proposal is beneficial to ensure owners and operators are properly following up and determining whether a release has occurred
   * One commenter believed EPA's clarification is needed for a clear understanding of what is required if an alarm occurs and to provide better tools for enforcement when owners and operators do not respond to those alarms

Commenters: [0237, 0238, 0243, 0313, 0316, 0326, 0340, 0342, 0343, 0368, 0396, 0399, 0400, 0413, 0422]

Oppose

Sixteen commenters opposed including interstitial monitoring results, including interstitial alarms, under subpart E.  Comments fit into these groups:

   * Nine commenters indicated that alarms do not necessarily indicate a release to the environment and must first be investigated; clarify that only failed tests require reporting
   * Two commenters thought current language in § 280.52 already requires investigation; proposal does not add net benefit, it is too limited and adds needless complexity
   * Four commenters stated that all alarms are already followed by an investigation to determine if there was a spill; all alarms are taken seriously due to liability concerns
   * Ten commenters stated that if UST system owners and operators were required to report every alarm it would overload the system and provide false spill statistics; it is too burdensome for everyone

Commenters: [0259, 0264, 0298, 0305, 0312, 0327, 0339, 0346, 0349, 0371, 0380, 0402, 0415, 0416, 0418, 0427]

Suggested Changes To Regulatory Language

Several commenters suggested changes to EPA's proposed regulatory language at § 280.50(b) and § 280.50(c), specifically:

   * Deleting that alarms associated with water or product in interstice are reportable or clarifying the requirement
   * Clarifying that the unexplained presence of water or product is an unusual operating condition
   * Deleting language pertaining to alarms
   * Changing language regarding the time allowed to repair, recalibrate, or replace defective system equipment
   * Including an exception for reporting alarms that have been confirmed to be false alarms

Commenters: [0224, 0264, 0326, 0339, 0340, 0380, 0415, 0422]

Suggested Non Reportable Alarm Conditions

Commenters suggested several alarm conditions they believed EPA should make non reportable to UST implementing agencies.  These include:

   * Power surge that causes alarm
   * Condensation due to temperature differences between delivered product and product already in the tank
   * Product pumped or a delivery received during testing, which is assumed to be done by an automatic tank gauging system
   * After heavy rains
   * Bad sensor or wiring, sensor knocked over, accumulation of moisture, surface water intrusion
   * Low fuel alarm, water accumulation not caused by a leak, and sump alarm from surface water intrusion

Commenters: [0259, 0313, 0339, 0346, 0349, 0350, 0380, 0418, 0422]

Other Comments

Commenters also provided these changes or additional information:

   * Redefining release to eliminate clause about discharge to the environment
   * Clarifying to whom interstitial alarms must be reported
   * Secondarily contained systems should be allowed to perform tank or line tightness testing on primary walls instead of only interstitial integrity testing by pressure, vacuum, or liquid-filled testing, unless there is environmental evidence contamination was not contained in the interstice
   * Requiring all incidents be reported then investigated by pressure, vacuum, or liquid-filled testing will be a tough regulatory bar to meet
   * EPA's proposal will require significant educational outreach to owners and operators
   * Changes to release reporting eliminates certain owner determinations as to whether a release occurred, placing an additional burden on UST implementing agencies
   * Clarifying whether the following scenarios have to be reported:
         o          An interstitial space that has a sensor which detects a leak, but the leak is contained
         o          Water in a tank sump is a suspected release and reportable or not
         o          Which type alarms are reportable
   * Consider not allowing a second month of inconclusive results before reporting a suspected release for inventory control
   * Consider requiring owners and operators report a suspected release when two consecutive months of inconclusive results are received from statistical inventory reconciliation
   * Leaks into the interstice should be reported regardless of whether a release has occurred
   * Requiring owners and operators maintain records of all investigations for three years and records would be available to UST implementing agencies for review
   * One UST implementing agency requires records of all investigations that support a suspected release has occurred and how owners and operators have addressed them
   * Recounting of an incident where an alternate release detection method was used to confirm a release, but when the tank was eventually removed no release was found; owners and operators could avoid nuisance alarms by using discriminating sensors

Commenters: [0246, 0305, 0313, 0316, 0336, 0339, 0348, 0368, 0380, 0385, 0399, 0402, 0416, 0422]

EPA Response

Based on comments, EPA acknowledges the proposed language for subpart E - Release Reporting, Investigation, and Confirmation did not convey EPA's intention.  Many commenters misunderstood EPA's clarification.  EPA was not proposing that owners and operators automatically report all alarms to the UST implementing agency.  In the final UST regulation, EPA is modifying language and clarifying UST system owner and operator responsibilities regarding interstitial monitoring results, including alarms, under subpart E.  Owners and operators must investigate all potential indications of a suspected release.  Those investigations that confirm a release occurred or cannot rule out a suspected release occurred must be reported to the UST implementing agency according to subpart E.

EPA agrees with commenters that clarifying responsibilities is beneficial and will help ensure owners and operators are properly following up and determining whether a release has occurred.  EPA agrees that an alarm does not necessarily mean there has been a release to the environment and an alarm must be investigated before being reported.  Only inconclusive investigations that cannot rule out releases, failed tank or line tightness tests, failed secondary containment tests, or confirmed releases have to be reported to UST implementing agencies as required by subpart E.

EPA agrees that § 280.52 currently requires investigation, but disagrees with commenters who contended all alarms are already followed by an investigation to determine if there was a spill, and all alarms are taken seriously due to liability concerns.  This does not happen in all instances.  EPA heard many anecdotal incidents of UST compliance inspectors arriving at various UST sites and discovering equipment was in alarm mode for an undeterminable period.  Clarification of owner and operator responsibility regarding interstitial monitoring results, including system alarms, is needed more now than in the past because EPA is requiring secondary containment with interstitial monitoring for new and replaced systems.

EPA agrees that if UST system owners and operators were required to report every alarm, it would overload the system, provide false spill statistics, and be too burdensome for everyone.  With regard to alarms, EPA is requiring owners and operators investigate the cause of an alarm to determine whether there has been a release to the environment.  UST system owners and operators must follow requirements in subpart E.  Owners and operators must report to UST implementing agencies the event of a confirmed release or if a suspected release cannot be ruled out.  If owners and operators determine a release to the environment has not occurred, then reporting is not required.

Suggested Changes To The Regulatory Language

Commenters suggested changes to language EPA proposed in the 2011 proposed UST regulation.  We discuss the suggestions below.

Commenters asked EPA to change language in § 280.50(b) and either delete alarms associated with water or product in the interstice as reportable or have owners and operators only report after investigation indicates a release to the environment occurred.  Commenters also asked EPA to add the term "an unexplained presence of" before "water or product" in the fourth unusual operating condition example.  Alarms are addressed in § 280.50(c), not § 280.50(b), which addresses unusual operating conditions.  EPA is keeping the proposed language about water or product in the interstice as potentially reportable to UST implementing agencies, but is restructuring § 280.50(b) to provide separate examples of unusual operating conditions, including addressing any liquid such as water or product in interstitial spaces not associated with the interstitial monitoring method.  The final UST regulation will add these subsections to § 280.50(b):

   * § 280.50(b)(1) regarding system components - "is found not to be releasing regulated substances to the environment"
   * § 280.50(b)(2) addressing defective components - "any defective system component is immediately repaired or replaced"
   * § 280.50(b)(3) regarding secondarily contained systems - "For secondarily contained systems, except as provided in § 280.43(g)(2)(iv), any liquid in the interstitial space not associated with the interstitial monitoring method (for example, liquid filled) is removed"

Commenters asked EPA to change language in § 280.50(c) and delete the proposed addition of "and alarms."  EPA disagrees with commenters about deleting "and alarms."  EPA thinks this is an important point to make regarding owner and operator responsibility for investigating UST system alarms that may indicate a release has occurred.  In order to clarify this requirement, EPA is changing the term to "including investigation of an alarm."  This better conveys that it is not the alarm itself that is reportable, but whether a suspected or confirmed release exists.  If the alarm is investigated and there has not been a release to the environment, the final UST regulation is not requiring owners and operators report the incident.

EPA was asked to replace the word "immediately" with "promptly" or change "immediate repair..." to "expeditious repair..." in § 280.50(c)(1).  Commenters stated that not all alarms can be immediately repaired, recalibrated, or replaced as required.  EPA disagrees with commenters about changing language in the final UST regulation regarding how soon defective equipment needs to be repaired or replaced.  Language pertaining to immediate response has been a part of the reporting of suspected release requirement since the 1988 UST regulation.  Any change to this established time frame could undermine the urgency owners and operators need to exercise in order to avoid potential releases.

Commenters also asked EPA to include additional exceptions to § 280.50(c).  Commenters said EPA should exclude owners and operators from having to report alarms that  are confirmed as false alarms (i.e., those alarms not resulting in releases to the environment).  Also, if an alarm condition was caused by water intrusion and the water intrusion indicates a secondary containment failure, it must be repaired according to § 280.33.  EPA is modifying the regulatory language to expand and more clearly describe exceptions to reporting monitoring results, including investigation of an alarm from a release detection method that indicates a release may have occurred.  The final UST regulation will add the following language to § 280.50(c):

   * § 280.50(c)(2) - "The leak is contained in the secondary containment or water is in the secondary containment, any liquids are removed, and any defective equipment is immediately repaired or replaced"
   * § 280.50(c)(3) include to the end of sentence - "or the investigation determines no release has occurred"
   * § 280.50(c)(4) - "the alarm was investigated and determined to be a non-release event such as a power surge"

Commenters provided a variety of non-reportable alarm conditions they thought were not typically reportable events.  These included:

   * Power surge that causes alarm
   * Condensation due to temperature differences between delivered product and product already in the tank
   * Product pumped or a delivery received during a test
   * After heavy rains
   * Bad sensor or wiring, sensor knocked over, accumulation of moisture, and surface water intrusion
   * Low fuel alarm, non-leak water accumulation, and sump alarm from surface water intrusion

Although EPA agrees with commenters that most of the suggested conditions are typically not reportable events, EPA cannot categorically exclude these events as never needing to be reported to UST implementing agencies.  EPA is adding to the final UST regulation at § 280.50(c)(4) this language:  "The alarm was investigated and determined to be a non-release event such as a power surge."  This will provide an additional example of a representative type of alarm that is typically not reportable.  However, the intent of the final regulatory requirement remains the same.  UST system owners and operators must investigate the cause of alarms and other potential indications of a release to the environment.  Unless the investigation supports that a release to the environment has not occurred, UST system owners and operators are responsible for reporting suspected releases to UST implementing agencies.

With regard to redefining release to eliminate the clause about discharge to the environment, EPA does not have authority to redefine the term.  Congress defined release in the Solid Waste Disposal Act.

EPA disagrees with the comment that further clarification is required about to whom interstitial alarms must be reported.  In § 280.50 Reporting of suspected releases, we indicate:  "Owners and operators of UST systems must report to the implementing agency within 24 hours, or another reasonable time period specified by the implementing agency...".

EPA agrees we need to change the requirement in the 2011 proposed UST regulation regarding owners and operators of secondarily contained systems testing these systems using only pressure, vacuum, or liquid-filled testing methods.  Requiring all incidents to be tested by pressure, vacuum, or liquid-filled testing could be difficult to achieve.  In the final UST regulation, EPA is providing owners and operators with flexibility to perform either tank or line tightness testing on primary walls or, as appropriate, secondary containment testing.  EPA acknowledges there may be circumstances where one method of testing is necessary over another.  EPA is including in the final UST regulation that, as appropriate, secondary containment testing described in § 280.33(d) is to be used.

EPA understands the comment that the proposal to clarify owner and operator responsibilities under subpart E will require significant educational outreach.  However, additional language in the 2011 proposed UST regulation makes these responsibilities clear.  In the final UST regulation, EPA is addressing the two most misunderstood or controversial areas of the 2011 proposed UST regulation.  The final UST regulation clarifies that owners and operators will not be required to automatically report alarms to UST implementing agencies.  Only after investigation will owners and operators have to report a confirmed release, if found, or a suspected release the investigation could not rule out.  Owners and operators will only have to perform secondary containment testing as appropriate, not in every instance involving secondary containment areas.

One commenter believed that language in the 2011 proposed UST regulation regarding release reporting eliminated certain owner determinations as to whether a release occurred, placing an additional burden on UST implementing agencies.  EPA disagrees with the commenter.  EPA is clarifying in the final UST regulation that owners and operators are responsible for determining whether a release has occurred prior to reporting to UST implementing agencies.  For example, owners and operators are not required to automatically report every alarm to UST implementing agencies, only those alarms that have been investigated and a release has been confirmed or a suspected release still cannot be ruled out.  EPA sees no negative impact to UST implementing agencies with clarification to the release reporting requirements.

Commenters asked EPA to clarify a few scenarios and identify whether owners and operators would be required to report them to UST implementing agencies.  One commenter asked whether owners and operators would have to report a leak into an interstitial space with a sensor that detects leaks, even if the leak is contained.  Owners and operators are responsible for investigating alarms from leaks into interstitial spaces.  Unless a release reaches the environment, owners and operators are not required by the final UST regulation to report the incident.  However, any liquids have to be removed from the interstitial space.  The final UST regulation will clarify this in § 280.50(c)(2).  Another commenter asked whether water in a tank sump is a suspected release and reportable or not.  EPA considers water in the tank sump to be an unusual operating condition.  Owners and operators need to investigate the cause of water in the sump to determine a release has not occurred.  If a release occurred, owners and operators are required to report the release to the UST implementing agency.  Owners and operators would have to remove the water regardless of whether a release occurred.  Another commenter asked which types of alarms are reportable.  The 1988 UST regulation does not require owners and operators automatically report alarms to UST implementing agencies.  Owners and operators need to investigate the cause of all alarms from an applicable release detection method; confirmed releases or suspected releases, which are not ruled out by investigation, need to be reported to UST implementing agencies.

Commenters suggested EPA not allow a second month of inconclusive results for interstitial monitoring and allow a second month of inconclusive results for statistical inventory reconciliation (SIR).  EPA is not changing release reporting requirements for these release detection methods.  Inventory control is combined with periodic tank tightness testing and, when used, provides an additional level of environmental protection.  The secondary containment requirement in the final UST regulation requires all new and replaced UST systems use interstitial monitoring to meet the release detection requirement.  Inventory control combined with tank tightness testing will no longer be allowed as a primary means of release detection.  SIR has historically been allowed under EPA's other methods of release detection in section § 280.43.  The final UST regulation includes SIR by name with further clarification of its performance requirements.  SIR is a more accurate means than inventory control of analyzing inventory data to determine a release.  Allowing any method, including SIR, two consecutive months of inconclusive results is not protective of the environment.

Several commenters suggested additional requirements.  These included reporting leaks into the interstice regardless of whether a release occurred, as well as requiring owners and operators maintain records of all investigations for three years and make them available to UST implementing agencies.  Another commenter indicated his UST implementing agency requires owners and operators keep records of investigations about suspected releases, as well as how owners and operators addressed them.  EPA is not requiring these additional suggestions in the final UST regulation.  These suggestions could add a considerable burden on owners and operators and EPA did not evaluate costs or environmental benefits for these suggestions.  EPA is aware that UST implementing agencies may have requirements in addition to EPA's requirements.  Owners and operators need to review the regulatory requirements for the jurisdiction in which their UST systems are located in order to comply with all applicable requirements.

One commenter noted an incident where an alternate release detection method confirmed a release, but when the tank was removed, no release was found.  EPA is not familiar with all of the circumstances surrounding this incident.  Nonetheless, EPA is providing flexibility in the final UST regulation for owners and operators to test UST systems in the most appropriate manner and verify whether a release occurred.  EPA intends for owners and operators to use confirmatory testing to ensure UST systems, which have not released product, remain intact.

Finally, one commenter suggested owners and operators could reduce nuisance alarms by using discriminating sensors.  EPA agrees that in certain circumstances discriminating sensors might be ideal.  However, EPA is not requiring discriminating sensors.  Owners and operators should determine what works best for their UST systems.  EPA reminds owners and operators of the requirements in subpart E pertaining to water, product, and other liquids.  In general, if there are unusual operating conditions that cause liquids to be in areas of the UST system, owners and operators need to address those unusual operating conditions according to subpart E.

Proposal To Incorporate Newer Technologies

Summary

EPA received input from more than 25 commenters on our proposal to add newer technologies to the final underground storage tank (UST) regulation.  Most commenters provided input on statistical inventory reconciliation (SIR).  A few commenters suggested EPA allow tank within a tank constructions be considered as new tank installations in the final UST regulation.  Below are details about the comments.

Support

Five commenters voiced general support for adding newer technologies.  One commenter specifically supported adding jacketed tanks to new tank technologies.  Four commenters supported adding continuous in tank leak detection (CITLD) as an option for release detection.  Six commenters supported adding SIR as an option for release detection.  Several commenters supported adding SIR, but with specific requirements that include reporting inconclusive results.

Commenters: [0238, 0239, 0246, 0265, 0266, 0300, 0301, 0313, 0316, 0343, 0344, 0348, 0388, 0413, 0414, 0422]

Oppose

No commenters specifically opposed adding newer technologies to the final UST regulation.  One commenter suggested that including SIR as an option for release detection would not enhance the final UST regulation.  However, EPA should include specific requirements if SIR is added as an option.

Commenters: [0246]

Specific Performance Standards For Vacuum, Pressure, And Liquid-Filled Interstitial Monitoring

EPA asked commenters to provide specific performance standards for vacuum, pressure, and liquid-filled interstitial monitoring.  Two commenters supported EPA's proposal.  Two commenters indicated EPA should not include performance standards.  Three commenters indicated EPA should provide specific performance standards, but did not indicate what the standards are.  Several commenters indicated that recommendations of the manufacturer or third party certification were reasonable.  One commenter suggested that approved tests by the National Work Group on Leak Detection Evaluations would be adequate.

Commenters: [0237, 0238, 0243, 0313, 0316, 0396, 0399]

Performance Standards For Release Detection That Should Be Added Or Removed

EPA asked commenters whether there are performance standards for release detection methods we should add to or remove from the final UST regulation.  Four commenters indicated there was nothing to add or remove.  One commenter indicated we should add detailed specifications and performance standards for both CITLD and SIR.  One commenter indicated SIR should comply with the 30-day pass or fail results requirement.  One commenter suggested excluding types of interstitial monitoring that allow dispenser sumps to fill with product before it travels to the submersible turbine pump containment sump for detection.

Commenters: [0237, 0238, 0266, 0313, 0316, 0399]

Other Comments

EPA also received these comments:

   * Add tank within a tank constructions to the final UST regulation and modify closure requirements to allow this technology to be installed in a permanently closed UST
   * Establish maximum throughputs for facilities using SIR; one commenter recommended 500,000 per month
   * Enhanced SIR works well with both safe and non-safe types of suction piping systems
   * Concern about use of SIR  -  it would be helpful if EPA holds vendors accountable and requires use of automatic tank gauges for measurements
   * CITLD can perform release detection on the piping, too; make this clear in the final UST regulation
   * Concern that SIR would not detect releases in satellite lines if the solenoid valve is positioned improperly
   * Clarify what inconclusive results mean for SIR; is it a suspected release?
   * Disagree that SIR methods must produce a result within 30 days
   * Concern about the owner knowing in a timely manner whether an UST system is leaking because the monitoring result is not produced until well into the next month
   * EPA praises SIR in one part of the preamble and makes it sound like the method is inadequate in another area
   * Add inventory reconciliation at § 280.43(a) to SIR requirement
   * New language for CITLD at § 280.43(d)(2) is unnecessary and confuses rather than clarifies
   * Description of SIR adds to the confusion about the relationship between SIR, continuous statistical leak detection (CSLD), and CITLD; SIR section should reference only SIR
   * Add 150 gallons per month, or some other maximum amount, standard back to SIR; otherwise inventory can be off and still generate a passing result

Commenters: [0236, 0246, 0266, 0273, 0278, 0300, 0313, 0341; 0368, 0372, 0400, 0414]

EPA Response

Based on comments, EPA is adding the newer technologies as presented in the 2011 proposed UST regulation.  EPA is changing the final UST regulation as discussed below.

EPA asked whether we should provide specific performance standards for vacuum, pressure, and liquid-filled interstitial monitoring and, if so, what those performance standards should be.  No commenters provided specific performance standards in terms of leak rates or other technical criteria.  However, there is no longer a need for EPA to specifically name vacuum, pressure, and liquid-filled methods in the final UST regulation.  The 2011 proposed UST regulation suggested adding these three methods of continuous interstitial monitoring in § 280.43 to support interstitial monitoring as part of the secondary containment requirement.  Based on comments, EPA in the final UST regulation is not including language in the secondary containment requirement pertaining to continuous interstitial monitoring and testing.  EPA is also removing the proposed incentive for UST system owners and operators to not periodically test continuous interstitial monitoring systems.  EPA is not including in § 280.43(g) of the final UST regulation language pertaining to continuous vacuum, pressure, or liquid-filled methods of interstitial monitoring.  This does not impact release detection methods used under § 280.43(g).  UST system owners and operators must meet applicable requirements of this section.

EPA also asked if there were performance standards for release detection methods we should add to or remove from the final UST regulation.  Commenters indicated that: performance standards for CITLD and SIR should be added; SIR should comply with the 30-day monitoring requirements; and interstitial monitoring that allows dispenser sumps to fill with product that must travel to the submersible turbine pump sump for detection should be disallowed.  We address the first two suggestions below.  EPA recognizes issues may occur with interstitial methods that detect releases by relying on dispenser sumps filling and product traveling to the submersible sump.  EPA is allowing these methods because they should be compliant, even though there might be concerns with the system meeting the 30-day monitoring requirement.  EPA reminds UST system owners and operators that we are requiring interstitial monitoring of under dispenser containment areas for new and replaced UST systems that meet the secondary containment requirement.  Monitoring must meet the 30-day release detection requirement.

EPA understands the closure portion of the 1988 UST regulation requires owners to fill their tanks with inert solid material as part of closing tanks in place.  Because installing a new tank requires closing an existing tank, EPA thinks this language may prohibit technologies that construct a tank within a tank from being considered a new tank.  EPA does not want to prohibit technologies that implementing agencies determine meet the new tank design and construction standards.  Therefore, EPA is revising the closure requirements and giving implementing agencies flexibility to allow closure in place in manners other than filling tanks with solid inert material.  However, EPA disagrees with commenters who suggested specifically listing tank within a tank technologies in the UST system design and construction standards at § 280.20.  Field-constructed tank technologies are already covered in this section, depending on the material of construction.  For example, many tank within a tank technologies are currently constructed from fiberglass and must meet the requirements for fiberglass tanks in § 280.20.  All new tanks and piping must also meet the installation requirement in § 280.20(d).

One commenter suggested EPA establish maximum throughputs such as 500,000 gallons per month for facilities using SIR.  EPA is aware there may be limits to current release detection methods.  However, EPA is not restricting release detection choices in the final UST regulation.  The final UST regulation allows UST system owners and operators to choose a method or combination of release detection methods that meet the needs of their UST systems.  For example, one UST system may use a method or combination of methods of release detection that may not meet release detection requirements for another UST system.  In the early 1990s, EPA established seven standardized test procedures for testing leak detection equipment.  Among these was a procedure to test SIR methods.  Equipment limitations are addressed in EPA's standard test procedures and provide means for equipment manufacturers to verify their equipment meets EPA's regulatory performance standards.

One commenter stated that enhanced SIR works well with both safe and non-safe types of suction piping systems.  Although owners and operators of safe suction systems that meet criteria established in the 1988 UST regulation and retained in the final UST regulation are not required to conduct release detection, performing release detection could still be beneficial as an extra safeguard against an environmental release.

One commenter was concerned about the use of SIR and thought it would be helpful if EPA held vendors accountable and required the use of ATGs for measurements.  SIR vendors and other third-party service providers are accountable for the services they provide to owners and operators.  In the 2011 proposed UST regulation, EPA identified that UST system owners and operators with SIR primarily gathered inventory measurements using a manually operated tank measuring stick.  In order to obtain the most accurate measurement data possible, owners and operators must adhere to data collection procedures specified by the method's vendor.  EPA agrees with the commenter who stated that using an automatic tank gauge for inventory measurement could be helpful for owners and operators in gathering more precise inventory measurements.  EPA, however, is not prescribing how owners and operators using this method of release detection must obtain necessary inventory measurements.  EPA is continuing to allow owners and operators flexibility in obtaining inventory measurements.

One commenter asked EPA to clarify that CITLD can perform release detection on piping.  Another commenter also raised the concern that SIR would not detect releases in satellite lines if the solenoid valve is positioned improperly.  Not all implementing agencies allow CITLD or SIR for piping release detection.  UST system owners and operators need to check with the UST implementing agencies where their UST systems are located to determine if these methods are allowed.  In addition, for inventory based release detection methods such as SIR and CITLD, unmetered areas of UST systems are not covered.  The 1988 UST regulation required UST system owners and operators use a method or combination of release detection methods that can detect a release from any portion of the tank and connected underground piping that routinely contains product.  If SIR or CITLD is used for piping release detection, UST system owners and operators need to ensure release detection measures cover all applicable piping of the UST system, including unmetered satellite piping.

One commenter asked that EPA identify whether the term inconclusive for SIR results means a suspected release.  A result of inconclusive does not provide a determination of whether the UST system is leaking, as indicated by fail, or is not leaking, as indicated by pass.  EPA discussed the term inconclusive and our 1993 guidance regarding inconclusive SIR results in the preamble of the 2011 proposed UST regulation.  EPA is reiterating that discussion in the preamble to the final UST regulation.

EPA disagrees with the commenter who thought SIR methods are not required to produce a result within 30 days.  The commenter assumed that monitoring is separate from determining the leak status of a tank.  The 1998 UST regulation did not establish a requirement for UST system owners and operators to merely observe the status of their UST system every 30 days.  In the preamble to the 2011 proposed UST regulation, EPA discussed the requirement that tanks must be monitored at least every 30 days for releases, as well as the responsibility of owners and operators to determine whether there have been releases from their tanks within this period.

EPA received several comments regarding lack of timeliness associated with determining whether a leak exists when using SIR.  In many instances, monitoring results are not produced until the next monitoring period or well beyond.  These commenters also provided several suggestions for EPA to address the lag time between UST owners and operators collecting leak detection data and receiving late reporting on the leak status of their tanks.  EPA reiterates the established regulatory requirement that tanks must be monitored at least every 30 days for releases.  Owners and operators must determine whether there has been a release.  To address concerns about receiving a SIR report late and delayed knowledge of a tank release, EPA provided an example in the 2011 proposed UST regulation of using a rolling collection of data to analyze the leak status of a tank.  EPA stated, "data from the previous 30-day monitoring period may be added to measurements taken within the current 30-day monitoring period to determine whether or not the tank is leaking.  However, the majority of data must come from the current 30-day period...".  EPA agrees with commenters that after several monitoring periods, some UST system owners and operators could still encounter situations where sufficient current data would be unavailable to meet the monitoring time frame.  Therefore, a leak could go undetermined well beyond the 30-day period in the rolling data collection example EPA provided.

Commenters provided other options for how owners and operators can meet the release detection requirement.  One possible option is to run a SIR analysis every 15 days and the last 30 days of data.  This option results in a more frequent analysis of the UST system's leak status.  EPA agrees this option would allow owners and operators to meet the release detection requirement.  Another option is to add a requirement that SIR results must be returned to the owner within seven days of the end of the data collection period; other commenters suggested various times.  EPA disagrees with this option because it does not meet EPA's previously established release detection requirement.  Providing additional time for one method to determine whether a leak has occurred would be unfair to UST system owners and operators using other release detection methods, and would result in decreased environmental protection.  Release detection needs to occur as early as possible.  EPA's minimum requirement for release detection is once every 30 days.  There are SIR methods that meet the release detection requirement.  To meet the release detection requirement, owners and operators of other SIR methods can take advantage of more frequent analysis, as one commenter suggested, or send data more expeditiously by electronic means.  EPA is retaining the release detection requirement, which allows owners and operators to use whatever method they choose, as long as it meets performance standards.  UST system owners and operators can discuss changes with their SIR vendors, in order to adjust their method and meet EPA's release detection requirement.  EPA is not including the example of rolling collection of data in the preamble to the final UST regulation.

One commenter stated EPA praised SIR in one part of the preamble and made it sound like the method is inadequate in another area.  EPA provided a balanced discussion about SIR in the 2011 proposed UST regulation.  Similar to all release detection methods, SIR has benefits as well as potential limitations, which we discussed in the preamble to the 2011 proposed UST regulation.

EPA disagrees with the commenter who suggested we add the inventory reconciliation requirement in § 280.43(a) to the SIR method requirements.  SIR is not the same as inventory control listed in § 280.43(a) of the 1988 UST regulation.  If a SIR method meets one of the performance standards for internal leak detection methods such as inventory control or automatic tank gauging, it could qualify under those requirements.  SIR methods must meet the leak rate requirement and probabilities of detection and false alarm performance standards, which are unchanged from the 2011 proposed UST regulation and included in the final UST regulation.

EPA disagrees with the commenter who indicated our language for CITLD at § 280.43(d)(2) is not necessary and confuses rather than clarifies.  Instead of creating an entirely new section, EPA added the description and requirements for the CITLD method to the automatic tank gauge method.  With a more sophisticated software upgrade, an automatic tank gauging system is enhanced to run a continuous analysis beyond how the system has historically been programmed to run a static test for a set period.

Another commenter thought EPA's description of SIR adds to the confusion about the relationship among SIR, CITLD, and continuous statistical leak detection (CSLD); the commenter stated the SIR section should reference only SIR.  EPA agrees with the commenter that distinguishing these statistically based methods is beneficial.  EPA describes SIR and CITLD to distinguish them from each other in the regulatory context.  EPA is revising the description of SIR in the final UST regulation; it will not include those statistically based methods that operate on a continuous basis such as those described in CITLD.  In the preamble to the final UST regulation, EPA is describing CITLD, CSLD (also referred to as continuous automatic tank gauging methods), and SIR; this will help differentiate among these statistically based, internal tank monitoring methods.

One commenter suggested that EPA add 150 gallons per month standard, or some other maximum amount inventory deviation, to SIR.  EPA expanded the other methods requirements in the 1988 UST regulation as the foundation for the SIR method.  EPA proposed omitting the 150 gallons within a month criteria, citing its primary application to external release detection methods.  The commenter pointed out the importance of the 150 gallons criteria if SIR methods are used for monitoring piping for release detection.  Without the standard, the method could not be used for piping release detection.  Some UST implementing agencies allow UST system owners and operators to use SIR for piping release detection.  EPA agrees with the commenter that this standard should be included.  EPA is including the 150 gallon criteria in the final UST regulation.
Proposal To Update Codes Of Practice Listed In The UST Regulation

Summary

   * More than 20 commenters provided input on EPA's 2011 proposed UST regulation to update the codes of practice (also called standards or recommended practices) listed in the 1988 UST regulation  -  17 supported it; no one opposed it
   * Other comments
         o Several commenters provided information about additional codes that could be added to the final UST regulation
         o A few provided general comments and editorial corrections to titles and designations
   * EPA asked a specific question about whether codes of practice should apply to the UST system or just tanks and piping in the installation requirements in § 280.20(d); most commenters agreed the codes of practice should apply to the UST system

Support

All commenters were generally supportive of updating the codes of practice listed in the 1988 UST regulation.

Commenters: [0222, 0238, 0243, 0289, 0301, 0313, 0316, 0332, 0343, 0344, 0348, 0372, 0390, 0397, 0400, 0401, 0409]

When asked about whether codes of practice should apply to the UST system or just tanks and piping in the installation requirements in § 280.20(d), most commenters supported using the term UST system.

Commenters: [0222, 0233, 0238, 0243, 0313, 0316, 0396, 0399]

Oppose

No commenters opposed updating the codes of practice.  One commenter indicated that using codes of practice as a regulatory tool seemed to be inefficient because organizations need to stay in existence, titles need to remain the same, and the standard can be changed when the standard-making organization feels like changing it.

Commenters: [0325]

When asked about whether codes of practice should apply to the UST system or just tanks and piping in the installation requirements in § 280.20(d), one commenter had no strong opinion.

Commenters: [0313]

Other Comments

Several commenters offered corrections to titles or standard designations EPA included in the 2011 proposed UST regulation.  In addition, several commenters offered names of different standards that should be added to or removed.  Suggested additions included:

   oo PEI-RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities;
   oo ULC/ORD-C58.4-05, Double Containment Fibre Reinforced Plastic Linings for Flammable and Combustible Liquid Storage Tanks;
   oo PEI RP500, Recommended Practices for Inspection and Maintenance of Motor Fuel Dispensing Equipment;
   oo ASTM G158, Standard Guide for Three Methods of Assessing Buried Steel Tanks; and
   oo STI R-111, Storage Tank Maintenance

The one suggested deletion was API RP 1621, Bulk Liquid Stock Control at Retail Outlets.  The commenter suggested this deletion because it is an older standard, not recently updated or reaffirmed.  One commenter suggested not adding other testing standards for cathodic protection testing because adding additional codes of practice allows cathodic protection testers to shop around for the least stringent way of doing things.  One commenter expressed concern about including PEI RP1200 in the final UST regulation for tank secondary containment testing because the standard contains significant differences in the testing of secondarily contained steel and fiberglass tanks when compared to testing standards developed by the steel and fiberglass tank associations.

Commenters: [0222, 0238, 0246, 0313, 0332, 0343, 0397, 0390, 0400, 0444]

EPA Response

In response to comments received, EPA is making corrections to titles and standards designations in the final UST regulation.  Also, after reviewing the Petroleum Equipment Institute's recommended practice PEI RP1200 issued in 2012, EPA is adding it to the final UST regulation in areas where testing or inspecting of UST equipment is required.  One commenter suggested not including the PEI RP1200 code of practice for secondary containment testing because of significant differences when compared to testing standards for secondarily contained steel and fiberglass tanks.  However, a review of PEI RP1200 showed the standard as referencing both the steel and fiberglass tank codes of practice as alternatives to using the procedure described in PEI RP1200.  EPA is also including the steel and fiberglass tank testing standards when secondary containment testing is required in the final UST regulation.  In addition, to providing owners and operators with flexibility in meeting the final UST regulation, EPA continues to include the codes of practice we are aware of in the cathodic protection testing section.  EPA is excluding ULC/ORD-C58.4-05 from the final UST regulation because EPA is no longer allowing owners and operators to install internal linings to meet the corrosion protection upgrade.  Owners and operators can still use internal linings for other reasons such as compatibility or secondary containment, but EPA is not listing codes of practice in those areas.  Likewise, EPA is excluding ASTM G158 because that code is for assessing steel tanks prior to upgrading with cathodic protection and owners and operators needed to meet the corrosion upgrade requirements by December 1998.  EPA is making the upgrading requirements in § 280.21 historical because the deadline for meeting those requirements was 1998.  EPA is also excluding PEI RP500 because it is a standard for inspecting motor fuel dispensing equipment and Subtitle I of the Solid Waste Disposal Act does not give EPA the authority to regulate aboveground components such as motor fuel dispensing equipment.  In addition, after reviewing STI R-111, EPA is excluding that standard as part of walkthrough inspections because the content of the 2011 version of the standard focused on water and contaminants in the tank along with compatibility and, except for a monthly inspection checklist, did not describe how to conduct a periodic walkthrough inspection.  Finally, EPA is continuing to include API RP 1621 in the final UST regulation.  EPA confirmed with the American Petroleum Institute that this standard is current; it was reaffirmed in 2012.

Finally, based on positive comments, EPA is revising the term tanks and piping to UST system in § 280.20(d), which means the UST system must be installed according to a code of practice and according to manufacturer's instructions.

Proposal To Update The UST Regulation To Remove Old Upgrade And Implementation Deadlines

Summary

   * More than fifteen commenters provided input on EPA's proposal to add newer technologies to the UST regulation.  4 supported it; 0 opposed it
   * Potential unintended consequences: 4 commenters thought removing past upgrade and implementation deadlines might create potential enforcement issues

Support

Four commenters voiced their support for removing old upgrade and implementation deadlines.

Commenters: [0301, 0326, 0343, 0348]

Oppose

No commenters opposed removing old upgrade and implementation deadlines.

Potential Unintended Consequences

EPA asked commenters about whether there might be any unintended consequences of removing old upgrade and implementation deadlines from the 1988 UST regulation.  Six commenters were not aware of any unintended consequences.  Four commenters indicated that the changes might affect enforcement of an upgrade or implementation deadline.

Commenters: [0222, 0233, 0237, 0238, 0243, 0265, 0313, 0396, 0399]

Allowing Flexibility For Implementing Agencies

EPA asked commenters whether the regulation should continue to allow flexibility for implementing agencies to allow upgrades if they determine allowing the upgrade is appropriate.  Nine commenters indicated yes, the flexibility should remain.  One commenter indicated no, the flexibility should not remain.  One commenter was unsure.

Commenters: [0222, 0233, 0235, 0237, 0238, 0243, 0313, 0316, 0396, 0399]

EPA Response

Based on the comments received, the final UST regulation removes old upgrade and implementation deadlines.  EPA discussed whether removing old upgrade and implementation deadlines would adversely affect enforcement with its legal counsel, who indicated that removing the upgrade and implementation deadlines would not change the obligations in place at the time.  In addition, EPA maintains flexibility for implementation agencies to allow owners and operators to upgrade UST systems when they determine the upgrade is appropriate.

Proposal To Make Editorial And Technical Corrections

Summary

   * More than 15 commenters provided input on EPA's proposal to make editorial and technical corrections to the UST regulation

Support

Two commenters supported the editorial correction in § 280.31 changing for as long as the UST system is used to store regulated substances to until the UST system is permanently closed or undergoes a change in service pursuant to § 280.71.  One commenter supported the editorial change in § 280.31 of steel to metal.

Commenters: [0235, 0300, 0316]

Financial Responsibility

EPA received these comments to the proposed editorial and technical corrections for financial responsibility:

   * The technical correction to the definition of accidental release was unnecessary and created confusion
   * EPA no longer needs to define the term petroleum marketing firms, since it is no longer used
   * EPA made a technical correction from properly closed to permanently closed, but did not address what happens when an UST system undergoes a change in service
   * EPA changed the list to include the local government options in § 280.94(a)(1), but those options are already covered in § 280.94(a)(2)
   * § 280.97(b)(1) and (2) should include the local government options as part of the reference
   * Include in 280.104(g) and/or other local government guarantor after if a local government owner or operator

Commenters: [0294, 0328, 0338]

Release Detection

EPA received these comments to the proposed editorial and technical corrections for release detection:

   * The title of subpart D should be leak detection instead of release detection, since the subpart includes interstitial monitoring
   * Appropriately identify leaks, which do not reach the environment, versus releases, which reach the environment, throughout subpart D
   * § 280.41(b)(1)(ii)(e) contains a reference error
   * EPA missed replacing of at least 36 hours with the minimum duration of the test in the table below in § 280.43(b)(1)
   * EPA should retain paragraph in § 280.43(d)(2), which requires automatic tank gauging equipment to meet the requirements for inventory control
   * The new table in § 280.43(b), which extends testing time frames and lowers weekly and monthly standards for manual tank gauging, will be overly burdensome for dealers to comply
   * § 280.47(a) should use the term minimum instead of maximum

Commenters: [0222, 0235, 0238, 0264, 0290, 0313, 0316, 0339, 0399]

Other

EPA also received these comments:

   * Change non corrodible to nonmetallic in § 280.20 and § 280.33
   * The meaning of recent compliance in § 280.34 is unclear
   * Be consistent with the terms double walled and two walls  -  these terms are used throughout the document

Commenters: [0316, 0339, 0407, 0421]

EPA Response

For financial responsibility, EPA agrees with the commenter who suggested EPA delete the definition of petroleum marketing firm; we are removing the definition from the final UST regulation.  In addition, to clarify that financial responsibility is not needed when a change in service occurs, EPA is adding change in service to § 280.113.  EPA also agrees with the commenter who suggested the local government option is covered in section § 280.94(a)(2); we are removing it from § 280.94(a)(1).  EPA agrees with the commenter who suggested § 280.97 was missing local governments options in the boilerplate language and we are adding those references to the final UST regulation.  EPA disagrees with the suggestion to add language in § 280.104 because the local government guarantor is covered under § 280.106.  Finally, EPA disagrees with the commenter that the technical correction to the definition of accidental release is unnecessary and created confusion.  The language EPA is changing was in the preamble to the 1988 UST regulation, but it was inadvertently omitted from the 1988 UST regulation; it reflects what EPA intended for the definition of accidental release.

For release detection, EPA is making changes in the final UST regulation to ensure the terms release and leak are properly used.  In addition, EPA agrees with commenters who identified reference and wording errors in the proposal and is correcting those errors.  EPA also agrees with commenters who indicated EPA should not remove the language about automatic tank gauging equipment needing to meet the requirements for inventory control; we are including it in the final UST regulation.  EPA disagrees with commenters who said the new table for manual tank gauging would be overly burdensome for owners and operators.  EPA developed this table in 1990 and has allowed the alternatives through policy guidance for more than 20 years.  The table provides additional flexibility for owners and operators choosing to use manual tank gauging for smaller UST systems.  Finally, EPA is rewording language in § 280.47 by removing the term maximum detectible in the table heading to clarify these are the highest acceptable leak rates to meet the requirement.

For the other comments, EPA agrees with the commenter who suggested the meaning of recent compliance in § 280.34 is unclear; we are revising the language to be consistent with other recordkeeping language in that section.  EPA is making double walled and two walls as they relate to secondarily contained tanks, piping, and containment sumps consistent to the extent possible.  Finally, after reviewing the 1988 UST regulation, EPA is not changing the term non-corrodible to nonmetallic.  The 1988 UST regulation uses the term non-corrodible several times in both the preamble and final 1988 UST regulation.  EPA believes this term refers to materials that will not corrode without the addition of cathodic protection; we are maintaining the term used in the 1988 UST regulation.  Finally, EPA is revising the term technical correction to be technical amendment to better reflect the changes in the final UST regulation.
Revise State Program Approval (SPA) Requirements To Be Consistent With Part 280 Revisions

Summary

   * Twenty commenters provided input on EPA's proposal to revise state program approval requirements to be consistent with part 280 revisions.
         o Seven commenters wanted to ensure states only have to meet EPAct grant guidelines and do not have to change their regulations to mirror federal EPAct regulations in order to obtain SPA
         o Three commenters supported EPA's changes to the SPA requirements
         o One commenter supported EPA's approach to state program approval and encouraged EPA to maintain primacy in states
         o Several commenters had questions about the withdrawal process if a state does not re-apply for SPA
         o Four commenters supported the three years for states to come back in for SPA revision while 11 thought another frequency would be more appropriate
         o Four commenters supported including the procedures for determining compatibility in the SPA regulations while four commenters preferred EPA not address this in the final SPA regulation