EPA Updates UST Rules

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EPA has issued a final rule applicable to new and existing underground storage tanks (“USTs”).  The rule is the first significant amendment to EPA’s 1988 UST regulations.  Here are some of the highlights.

Previously Deferred USTs

USTs that store fuel for emergency generators, were constructed in the field, or are part of an airport fuel hydrant system were previously exempt from some or all of the UST regulations.  Under the new rule, owners and operators of USTs that store fuel for emergency generators will no longer be exempt from the requirement to install release detection equipment on their UST systems.  In addition, owners and operators of field constructed tanks and airport fuel hydrant systems now must comply with requirements for release detection, response and investigation; closure; financial responsibility; and notification. 

Operator Training

The rules add definitions for Class A, B and C Operators.  Class A Operators (e.g., management) have primary responsibility for operating the UST system.  Class B Operators (e.g., environmental personnel) have day-to-day responsibility for implementing regulations applicable to the UST system.  Class C Operators (e.g., store clerks) have initial responsibility for responding to releases from the UST system.  The regulation requires owners and operators of USTs to designate at least one Class A and one Class B Operator.  Employees who are involved in day-to-day operation and are responsible for taking response actions as a result of spills or releases must be at least Class C Operators.  All Operators must receive training, with the level of training varying by Operator class.  In addition, owners and operators of USTs must maintain a list of trained employees, the date the employee assumed certain duties, and the dates of training.  (As a condition of continuing to receive federal funds for their UST programs, most states already have incorporated these or similar training requirements in their regulations to comply with the Energy Policy Act of 2005.)

New Construction Requirements

With some exceptions, new and replacement USTs and piping must have secondary containment and interstitial monitoring.  This requirement also applies to replacement piping if the repair involves at least 50% of the existing piping.  All new dispenser systems must have under-dispenser containment.

Inspections

A trained operator must conduct a walk-through inspection every 30 days.  The person conducting the inspection must inspect spill prevention and release detection equipment to ensure it is operating properly.  Release detection alarms must be tested annually, and spill prevention equipment must be tested every three years.  (Previously, these things were not required to be tested.)

When Do I Have to Comply?

UST owners in states that have EPA-authorized programs – including Virginia, North Carolina and South Carolina – are not yet affected and may continue to comply with their respective state regulations.  States are required to incorporate the new requirements into their existing UST programs within three years of the rule’s October 13, 2015 effective date, although EPA indicated in the rule’s preamble that it would give states more time as long as they were making reasonable progress toward incorporating the new requirements.  Once a given state’s UST regulations are revised and approved by EPA, owners and operators of USTs in that state will be required to meet the new requirements.  Owners and operators of USTs in states without authorized programs must comply with the rule now, although many of the compliance dates in the rule are phased-in over time.

80 Fed. Reg. 41566 (July 15, 2015)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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