Final EPA UST Rule—What’s Left?

By Keith Reid

After two years of wrangling over the specific requirements, the Environmental Protection Agency published its final UST system testing and inspection rule on July 15, 2015. As EPA rules go, especially those impacting motor fuels, it is seen as being about as good as you could expect. The industry will be impacted, and undoubtedly some operators already on the edge will be forced out of business, but the industry was able to cut the impact significantly from the initial proposals and scored major wins on significant areas of concern. As PMAA noted in its initial announcement on the finalized rule: “The bottom line is the final rule is a major accomplishment for PMAA and petroleum marketers.”

“What EPA originally proposed was very alarming to us,” said Rob Underwood, president of the Petroleum Marketers Association of America in a subsequent FMN interview. “So we formed our underground storage tank task force made up of marketers across the country as well as some state association executives to thoroughly go into the proposed rule. We went through it piece by piece. At the end of the day we knew this was going to cost us some money but we were determined to get to a point where it was significantly less than what EPA originally proposed but still maintain that same environmental protection. We thought we had some cost-effective ways of getting there.”

Underwood cited three major accomplishments, among a range of EPA concessions:

• First, the final rule eliminates the single most onerous provision in the proposed rule – integrity testing for interstitial spaces in tanks, piping and containment sumps. These requirements were seen as being potentially damaging to equipment with the potential to cause leaks and void manufacturer warranties. The testing would also be expensive and present significant technical challenges.
• Second, testing and inspection requirements were delayed from 90 days to three years.
• Third, the frequency of sump inspections was reduced from every 30 days to once per year.

“Overall, they definitely did lower the cost and we estimate the impact is now around $530 million for the industry,” Underwood said. That is down from the$1.5 billion estimated for the initial proposed rule.
PMAA estimates that from a cost perspective, the annual cost per site was reduced from $6,966 per site to $2,377 per site [with a one-time cost per site of $58,325].

That this was a successful outcome is echoed by Paige Anderson, National Association of Convenience Stores director, government relations. “We submitted comments during the open comment period and we were pleased that they listen to a lot of our suggestions to heart,” she said. “We want to be able to store our fuels in a safe sound and efficient manner we felt the intent was proper but the initial draft had some logistical issues that the not quite make sense. We offered what we thought were some reasonable comments and they really listened. At the end of the day we feel we have something that’s workable. So we were fairly pleased with how it turned out.”

Bob Renkes, executive vice president and general counsel of the Petroleum Equipment Institute similarly sees this as being a positive outcome for both the industry and agency. “I think it’s fair to say that the final rule was a scaled-back rule from what was originally proposed,” he said. “I think EPA look at the comments from not only the regulators but the equipment people and certainly the tank owners in the regulated community and felt comfortable making the changes they did.”

 

Close, But…

For all of the concessions, the final rule is still costly and represents a significant burden for many retailers and marketers. In fact, the rule surpasses $200 million mark which would require a small business advocacy review panel. The agency refused to consider that requirement.

One remaining concern is the sump testing issue. The test requires filling the sump to the top with water to test for leaks. An existing sump with double-walled piping typically has had the interstitial space exposed after it enters the sump to allow fuel from a pipe failure to drain into the sump to then be detected by a sensor. This open piping would have to be sealed for the duration of the test to prevent the test water from itself draining into the piping.

Bruce Garrett, vice president of operations at Volta Oil Company, Inc., Plymouth, Mass., highlights the impact. “Although the costs have come down, I think that the EPA has missed a couple of things that are a bit disappointing,” he said. “The containment manhole or spill bucket — it is what it is. You clean it up and fill it and it’s either going to pass or not. A containment sump is the big issue. Some of the earlier containment sumps, the ones that are seven years or older, were likely installed not contemplating that the sumps and/or the interstitial spaces or piping would ever have to be tested. The issue that I have is that these early adopters of secondary containment are almost being punished by EPA for doing that. What they have to do now is go in and do some work to isolate those piping penetrations so that the liquid or vacuum–it’s primarily going to be liquid–does not go up into the spaces.”

Garrett noted that the pre-test costs can be quite expensive, citing boot and grommet costs to seal the piping, though companies that provide such solutions say product cost concerns are overblown and that much of the labor cost is already in the works just for the testing protocol itself. The testing protocol itself is fairly straight forward.

“When doing a hydrostatic test once any repairs are completed, the pipe interstitial must be closed over with a fitting to keep test water from escaping the sump through the interstitial,” said Paul Reber, national sales manager for ICON Containment Solutions, which makes a variety of secondary containment repair solutions as well as solutions that can facilitate the testing requirements. “The only way to do that without disconnecting the pipe is to use a split-design test/termination reducer fitting that seals to the secondary and primary pipe. That’s the same type of fitting that the contractor would use to seal and pressure test the secondary pipe integrity.“