By Gregory M. Myka and Dr. Jennifer Schneider
If you have an underground petroleum storage tank, with underground piping, be prepared. In the near future you may be spending money to upgrade or replace your piping system.
Even if, you were a proactive tank owner who installed double-walled underground piping for your petroleum UST, or live in a jurisdiction where piping secondary containment is already a regulatory requirement, the EPA has proposed more stringent operating requirements that may only be met by upgrading or installing new underground piping systems.
The following article is an abridged version of a timely research paper titled, “Got Integrity?
Impacts of the Proposed Integrity Testing Requirements for Underground Petroleum Storage Tank System Double-walled Piping.” This paper researched the background behind one of the provisions to the EPA’s November 2011 proposed regulatory changes to 40 CFR §280.36(2), Periodic Testing of Secondary Containment. As well as the public and regulatory comments received by the EPA, regarding potential costs and issues related to implementing and complying with this new requirement.
On November 18, 2011, the United States Environmental Protection Agency (EPA) published proposed rules (EPA, 2011) to amend 40 CFR 280, the federal underground petroleum storage tank system regulations. A seemingly minor component of those changes can be found in §280.36, Periodic Testing of Secondary Containment. §280.36(2) of the proposed revisions to this sub-section, is the requirement for periodic integrity testing of the interstitial space of double-walled underground piping systems. Piping systems that are continuously monitored with either pressure, vacuum or liquid filled interstice will not be subject to these requirements.
According to information in the EPA’s Semi-Annual Report of UST Performance Measures (EPA, 2011), over 110,000 existing piping systems will be required to perform integrity testing every three years (EPA, 2009). However, many of these piping systems currently perform leak detection by continuously monitoring the interstitial space of double-walled piping with the use of sensors in the lowest portion of the piping containment, the piping-sumps.
Double-walled piping systems were not required for tank systems subject to the 1988 federal regulations, but systems of this type were installed, by pro-active tank owners, in response to the 1998 deadline. Because these systems were not designed, manufactured or installed with the intention of testing, there will be many thousands of systems that will not easily be tested, or tested at all, in a manner that will be in compliance with the proposed regulation.
If the proposed regulations are promulgated, tank owners will then be required to determine how they will meet the regulations. If they will need to replace their existing secondary containment piping systems that may be tight, only to install systems that can be tested; or they can choose to replace their double-walled piping systems with systems that are not required to be tested.
In 1984, Congress added Subtitle I to the Solid Waste Disposal Act, to further strengthen the Conservation and Recovery Act (RCRA) of 1976. Subtitle I required the EPA to protect the environment and human health from underground storage tank (UST) releases by developing a comprehensive regulatory program for USTs storing petroleum, and other hazardous materials. On September 23, 1988, the EPA finalized the UST regulations: 40 CFR 280 (United States, 1988), and set a deadline of December 22, 1998, for mandatory upgrading or replacement of UST systems that did not meet minimum construction and installation standards.
In 2005, the Energy Policy Act further amended Subtitle I, to include provisions for tank operations training, inspections, delivery prohibitions, secondary containment, and financial responsibility, etc. (United States Congress, 2005). The 1988 regulations were focused on tank owners operating systems that met installation and material standards for corrosion resistance, spill and overfill prevention, and leak detection. On November 18, 2011 the EPA stated that “Today’s proposed revisions to the 1988 UST regulations focus on ensuring equipment is working, rather than requiring UST owners and operators to replace or upgrade equipment that is already in place.” (EPA, 2011)
The EPA has not significantly changed 40 CFR 280 since 1988 (Renkes, 2012 PEI), but with more than 20 years of experience with UST requirements, the EPA has concluded that using improved equipment, combined with operating and maintaining that equipment, is necessary to protect human health and the environment. However, with the promulgation of these rules, the EPA will force tank owners to replace double-walled piping systems with systems that either meet the three criteria that are not subject to testing, or will have to meet the integrity testing requirement. EPA stated that it does not propose the replacement of tank or piping systems, but there are many double walled piping systems that were installed in compliance with the 1988 regulations that cannot be tested in a manner to meet compliance with these rules.
POTENTIAL IMPACTS OF THIS RULE
The EPA’s Semi-Annual Report of UST Performance Measures (EPA, 2011) reported a universe of 611,449 active UST systems. Of that universe, this study estimated that over 110,000 (17.5%) are secondary containment systems that use interstitial monitoring methods that would require three-year integrity testing of the tank and piping secondary containment.
Before publishing the proposed UST regulation amendments, the EPA conducted an assessment of the cost and benefits of the proposed changes (Industrial Economics, 2011). This assessment concluded that the national compliance costs for the proposed regulations are estimated at $210 million per year, and that the avoided costs associated with the remediation of releases is estimated to be between $300 million and $700 million. In addition, the EPA estimated the proposed rule could potentially protect 110 billion to 350 billion gallons of groundwater each year.
The EPA study also estimates that annual costs for this testing will be $310.25, per integrity test, which is in stark contrast to the estimates provided by tank owners, in their comments to the EPA’s proposed rules. The New York State Association of Service Stations & Repair Shops’ (NYSASSRS) immediate response is, “Are you kidding?” (Bombardiere, 2012) They, and the Petroleum Marketers of America (Morgan, 2012) indicated that the actual costs of interstitial integrity testing will depend on unknown testing parameters, and that the EPA nor the states have a way to estimate regulatory costs for compliance with a non-existent testing standard (Bombardiere, 2012).
The Washington, Maryland, Delaware Service Station and Automotive Repair Association and the Service Station Dealers of America and Allied Trades commented that they see that the EPA’s costs estimates could be off as much as 400% to 600% (McCauley, 2012). In addition to the direct costs of testing, the Petroleum Marketers Association of America, NYSASSRS and the Louisiana Oil Marketers and Convenience Store Association (LOMCSA) identified that hydrostatic “lake” testing the integrity of piping sumps (part of the piping secondary containment) could needlessly generate over 2,000 gallons waste water, per test, for a typical four tank and dispenser facility (Bombardiere, 2012; Isaacks, 2012; and Morgan, 2012 ). Based on this average, utilizing this method to test all applicable double-walled piping systems, would generate over 4.8 million gallons of waste water.
However, the costs identified above generally focus on additional testing and inspection of existing equipment, and do not reflect large-scale investments in equipment, which will be required for replacing a piping system that is not capable of being tested per the proposed regulation (Bond, 2012; Rothenstein, 2012; Steers, 2012). Per EPA’s 2011 cost assessment, motor-fuel retailers, who own roughly 80% of the UST systems and have annual petroleum throughputs in the tens to hundreds of thousands of gallons per year, are expected to bear approximately 70% of the costs of these rules.
In their comments to the EPA, Valero Retail Holdings and the Environmental, Health & Safety Communications Panel (EHSCP) stated that requiring integrity testing of existing double-walled piping secondary containment is punitive and would penalize tank owners who voluntarily installed secondary containment, before EPA’s proposal, by placing a “significant financial burden” on these system’s owners (Willrodt, 2012 and Bond, 2012); because their system could require replacement or upgrade to meet compliance. The American Petroleum Institute, the Tennessee Department of Environment and Conservation, and the Utah Department of Environmental Quality have stated that the EPA needs to consider the appropriate balance between integrity testing and the cost burden to the tank owner. (Searles, 2012; Bradley, 2012; and Everett, 2012)
Tank owners must also be able to remain competitive, and the organizations representing these businesses feel that the costs of the EPA’s proposed regulations are unfair to the American people that simply cannot afford another burdensome cost to operate their businesses. On February 3, 2011, President Barack Obama issued Executive Order 13563, in which he stated, “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation… It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative.”
The FRRC (Bodine, 2012), the Michigan Manufacturer’s Association(MMA) (Such, 2012), and the Mississippi Petroleum Marketers & Convenience Stores Association (Chamblee, 2012) disagree that the EPA has adopted the culture established in the Executive Order, and have recommended that the EPA pull back this regulation and create a one that all can embrace. They feel that the EPA should attempt to lead the states out of an old-style regulatory scheme by providing examples of smart regulation that will help America again become a competitive place for manufacturing in the 21st century. MMA stated that the EPA, “ …should work on new, innovative, regulatory schemes for UST management that will help reduce costs while ensuring appropriate environmental protection.”(Such, 2012)
The regulatory community has also expressed concern for this proposed regulation. The Maryland Department of the Environment Oil Control Program commented to the EPA that, “…significant efforts have been made at the state level to pass regulations required by the Energy Policy Act grant guidelines, which should not be unintentionally undone by the final rule.” (Ralston, 2012)
In addition, the Tennessee State Department of Environmental Conservation, Division of USTs (TSDEC) has expressed their opposition to the proposed requirement for double-walled piping integrity testing. They indicated that their state regulations require continuous monitoring with the presence of sensors in every area of interstice where product could leak and accumulate, and that this provides adequate leak detection. They further argued that it would be unfair to impose a more stringent rule just five years after the EPA approved Tennessee’s tank regulation modifications that were updated to meet their interpretation of the 2005 Energy Policy Act. They went on to state, “Not only is secondary containment testing difficult and costly to do, it presents significant costs to the tank owner to repair or replace if components do not pass the test.” (Bradley, 2012)
The Virginia Department of Environmental Quality, Tennessee State Department of Storage Tanks, Louisiana Department of Environmental Quality, Sunoco, Inc., and others, echoed these sentiments and indicated that this would place an added burden on tank owners who proactively installed piping with secondary containment and continuous interstitial monitoring on their system prior to the 2005 Energy Policy Act. (Bombardiere, 2012; Bond, 2012; Bradley, 2012; Celeste, 2012; Donohue, 2012; Isaacks, 2012; Jones, 2012; Nolan, 2012; Saunders, 2012; Steers, 2012)
The New York State Department of Environmental Conservation stated, in their comments to the EPA, that the EPA should not require tests if the test requires significant modification to the existing system. (Leff, 2012) There were several tank owners and agencies that also suggested that testing existing tank systems could not only void manufacturer’s warranties (Bombardiere, 2012), but could damage the integrity of existing, tight, piping systems by utilizing test methods which apply vacuum or pressure at levels above those in which the systems were designed to withstand. (Bombardiere, 2012; Donohue, 2012; Eighmey, 2012; Ness, 2012; Rothenstein, 2012; Saunders, 2012) And Hess Corporation pointed out that damage to tight piping systems, caused by tightness testing, will decrease rather than enhance protection to the environment. (Rothenstein, 2012)
In their December 2011 publication L.U.S.T. Line, the National Work Group on Leak Detection (NWGLD) stated that there were no acceptable protocols for evaluating secondary containment test methods, and that protocols would not likely be written until the majority of states require testing with a nationally recognized performance standard. (NWGLDE, 2011)
In April 2012 the NWGLD further reinforced their message within their comments to the EPA’s proposed regulations, stating that, “The shortcoming of the proposal is that it does not set specific performance standards for tightness tests.” (Johnson, 2012) The New Hampshire Department of Environmental Services interpreted this as a call to action for the EPA (Juranty, 2012), citing the NWGLD’s December 2011 L.U.S.T. Line article, and stating that it is incumbent on the EPA to seize this opportunity to set standards. The Louisiana Department of Environmental Quality suggested that the EPA evaluate several years of UST system release source/cause data to evaluate the effectiveness of the 2005 Energy Policy Act requirements, prior to requiring this testing provision.
Ed Kubinsky of Crompco, LLC, a recognized leader in the field of testing tank and piping systems for integrity (Long, 2012), has lead a committee within the Petroleum Equipment Institute (PEI), which developed draft PEI/RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities. Upon finalization and acceptance of this practice, this document will likely become an industry standard for testing double walled piping secondary containment.
In an interview with Mr. Kubinsky (March 27, 2012), he agreed that there are double walled piping system that have been designed and installed in a manner that may have integrity, but would not easily be tested with existing piping secondary containment testing methods. And, at this time, there are no nationally recognized test methods available to test secondary containment on all types of existing double walled piping systems.
Every UST owner should ask themselves:
a) Is my tank system capable of performing continuous leak detection on my underground double-walled piping utilizing vacuum, pressure, or hydrostatic methods?
b) Was my double-walled piping system installed with secondary containment integrity testing engineered into the design and installation of the system?
If you answered “No” to the questions above, you may be required to replace your underground piping.
In an effort to ensure compliance with potential regulations impacting your petroleum storage systems, you will need to be aware of this regulation and the impacts it could have on your specific systems. From the information found in the public responses to the proposed regulations, it appears that some tank owners and regulators have reservations whether this regulation is warranted, or not. As of the time this paper was written and published, the EPA has not responded to these comments, nor promulgated these rules. However, the EPA may determine that promulgating this rule is in the best interest of protecting the health of the public and the environment. Rhode Island underground petroleum storage regulations have similar testing requirements already on the books!
To be prepared for upcoming regulatory changes, you should review each of your underground piping systems to determine how the proposed regulation will impact compliance with this rule. Then develop a plan for compliance that may include contacting a consultant, petroleum contractor or integrity testing firm to assist you in determining compliance. And if necessary, develop strategies and budgets for replacing piping that cannot meet the integrity testing requirements applicable to your systems. But don’t wait! Other tank owners are already reviewing their tank system, and will scheduling their own projects. Poor planning could create a potential for missed compliance deadlines.
One last thing you can do is to contact your regulators and let them know how you feel. This can be done with direct or anonymous correspondence, or even through associations and industry committees. Regardless of how an underground tank and piping system will, or will not, meet this new regulation, tank owners can rest assured that there are changes on the horizon and they need to be prepared.
NOTE: This is a truncated version of the full report. a PDF of the full research can be downloaded at: