Gale Lea Rubrecht
Ms. Rubrecht is a member of Jackson Kelly PLLC in Charleston, WV, and she is a member of the editorial board of Natural Resources & Environment.
For the first time in more than 20 years, the U.S. Environmental Protection Agency (EPA) is proposing revisions to the 1988 federal underground storage tank (UST) regulations found at 40 CFR Parts 280–81. 76 Fed. Reg. 71,708 (Nov. 18, 2011). The proposed rule emphasizes release prevention and proper operation and maintenance of release prevention and detection equipment. Significant proposed changes include: adding requirements for secondary containment, operator training, and periodic operation and maintenance; removing existing exemptions from the UST regulations for certain types of underground tanks; adding new release prevention and detection technologies; updating codes of practice to reflect current codes and standards; and updating state program approval requirements to incorporate the proposed changes. If finalized, the proposed revisions are expected to reduce the number of releases, which are one of the leading causes of groundwater contamination, and detect them quickly, if they do occur.
Congress authorized the UST program in 1984 when it added Subtitle I to the Solid Waste Disposal Act, directing EPA to develop a comprehensive regulatory program for USTs storing petroleum and certain hazardous substances to ensure that the environment and human health are protected from UST releases. In 1988, EPA promulgated UST regulations. The regulations require new USTs to be designed, constructed, and installed to prevent releases and required existing USTs to be upgraded, replaced, or closed to prevent releases. The 1988 regulations also require owners and operators to perform release detection, demonstrate financial responsibility, and clean up releases. In 2005, Congress passed the Energy Policy Act of 2005 and again amended Subtitle I of the Solid Waste Disposal Act. The Energy Policy Act requires operator training and secondary containment for USTs in states receiving federal Subtitle I money under the Solid Waste Disposal Act. EPA developed grant guidelines for states for implementing the provisions of the Energy Policy Act. See, e.g., http://www.epa.gov/swerust1/fedlaws/otgg_final080807.pdf. The proposed rule would ensure that all USTs in the United States, including those in Indian country, meet the same minimum standards.