Convenience store operators who don’t know state regulations concerning underground storage tanks (USTs) from a hole in the ground had better learn more about what’s in those holes and what the government is both offering and expecting from them.
Federal mandates requiring a significant increase in biofuels production, for example, have spurred an increase in the number of retail facilities storing and dispensing renewable fuels such as ethanol and biodiesel. Each of these fuels has significantly different characteristics than gasoline and diesel, therefore very different federal requirements.
Operators need to understand the technical issues related to the storage of all the fuels they sell at retail and be well versed in the requirements and looming deadlines. As John Eichberger, vice president of government relations for NACS put it, “you have to do what you are supposed to do, and if you take care of your business, you’ll be OK. If you are not taking care of your tanks accordingly, you may be in trouble.”
What’s the Latest?
Over the last year, the Environmental Protection Agency (EPA) has been working with UST stakeholders to revise the 1988 federal UST regulations to require that the 2005 Energy Policy Act prevention provisions apply to USTs in Indian country and in states that do not have program approval, according to Tisha Petteway, press officer for the EPA in Washington.
The EPA is also considering additional targeted changes to its existing regulations as part of this regulatory package. In spring 2010, the agency expects to publish in the Federal Register a proposed rule for public comment.
Administrators are not entertaining suggestions for changes to regulations added after the 2005 Energy Policy Act, such as red-tag authority (to shut a tank down if it is determined that it is in ongoing violation of federal regulations or represents an imminent threat to the environment and community, or if the owner is recalcitrant) and inspection requirements. Rules regarding such things as inspection authority, operator training, public reporting and more, all stays as it is, Eichberger said. “They just wrote that in the last few years and they’re not changing it.”
What regulators are trying to determine, Eichberger noted, is whether existing regulatory requirements that specify things like leak detection, spill or corrosion prevention and financial responsibility are still current and applicable to today’s marketplace.
The deadlines are more from the state regulators’ perspective, Eichberger explained. Most of the new requirements came into place for the states to implement. They have to put in place operator training programs.
“The deadline for implementation is some time in the next year or two, so the states have to communicate to the tank owners, ‘you have to do this by this date.’ Florida, for example, has a double-wall-tank retrofit requirement that must be observed,” Eichberger said.
When it comes to technical and policy issues related to ethanol and biodiesel, the federal government wants retailers to sell E85, so for this year and next year they have increased the 50% tax credit on the cost of installation of new equipment up to $50,000.
The “problem,” as Eichberger characterized it, is that “from a dispenser perspective, there is not a single dispenser in this nation that is legal to sell anything above E10. Some manufacturers that are selling E85 dispensers and charging their customers a premium for them are selling units that are illegal for dispensing E85 because they are not certified by Underwriters Laboratories (UL). That’s a big issue. If you are selling product through equipment that is not officially certified, you are violating OSHA requirements, you are violating your underground storage tank systems insurance program, you are violating any business loans you have taken out and you are opening yourself up to a lawsuit for gross negligence liability.”
It is generally accepted that 10% ethanol, which is typical in most blends, is not going to present a major problem, said Sharon Goble, environmental quality specialist in the Leaking Underground Storage Tank Program, Remediation and Redevelopment Division for the Michigan Department of Environmental Quality in Lansing, Mich.
“When you get into E85, degradation has been measured to occur. There is concern about the effect that ethanol has on some of the current materials that are used in tank systems, such as the fittings, the piping, that sort of thing; that can degrade them faster and result in some release,” Goble said. “I have not heard that ASTM International [the testing agency that certifies the compatibility of those materials] has reached a conclusion as to what is acceptable and what is not.”
The increase in ethanol and biodiesel in underground storage tanks “poses a number of technical and policy issues,” according to Petteway, including:
Compatibility. UST equipment must be compatible with the substance stored. “Although the current UST equipment market carries UST systems that are ethanol compatible, there may be a significant number of tank systems in use that are not fully compatible with ethanol or biodiesel blends,” Petteway said. Before storing a new fuel, owners and operators of UST systems must ensure that their equipment is compatible.
Functionality of leak detection equipment. Certain leak-detection equipment used in underground tanks and pipes may not function properly in the presence of ethanol or biodiesel. “Owners and operators should check with the manufacturers of their leak detection equipment to ensure that their products will be able to detect a release.
Cleanup concerns. The physical and chemical properties of alternative fuels like ethanol and biodiesel have been shown to affect the fate and transport characteristics of petroleum fuels. “For example, petroleum fuels mixed with ethanol have been shown to have a longer contamination plume when compared to contamination plumes of petroleum alone,” Petteway said. “The rates of degradation of the harmful petroleum constituents in fuel may be slower when in the presence of ethanol or biodiesel.”
In addition, the anaerobic degradation of ethanol has been shown in some cases to create high concentrations of methane in the subsurface, which can seep into buildings and create an air quality and explosion hazard.
This issue has been a top concern for NACS, according to Eichberger, and applies to both E15 and E85. “The UL would never recertify any piece of equipment that is in the market,” he said. “If it has already been deployed and put into use, they will not recertify it. That means that there is not a single retailer in the nation who can sell E15 or E85 without exposing himself to liability unless he at some point in the future buys certified equipment.”
The problem? “You can’t buy certified equipment right now,” Eichberger said. “It doesn’t exist.”
Many c-store operators have gone ahead and installed what manufacturers have told them are certified and compatible dispensers. “But it doesn’t meet the certification requirements of the law,” Eichberger insisted. “UL came out a while ago and said that they support local authorities having some flexibility and allowing some waivers for up to 15% ethanol. And a lot of fire marshals have said, ‘we think E85 is fine, go ahead and sell it.’ A lot of retailers have taken that and said, ‘great, my fire marshal said I can do it, I’m going to go ahead and do it.’ But the second they have a leak, they can be sued by anybody for gross negligence, and they could lose everything.”
LUST and Tests
Leaking Underground Storage Tank (LUST) Trust Fund money “is not now and never has been available to retailers,” Petteway said. “In the 1986 law establishing the LUST Trust Fund, Congress specified that money may only be used to clean up UST leaks where the owner is unknown, unwilling or unable to respond, or which require emergency action.”
The LUST program “does not provide financial assistance for retailers to upgrade their systems,” Eichberger explained. “We have been an advocate of keeping that sacrosanct. We don’t want to have one retailer get federal assistance to comply with the law and another retailer not get federal assistance to comply with the law.”
Chris Herb, vice president of the Independent Connecticut Petroleum Association in Cromwell, Conn., estimated that about 35 states have some sort of commercial, state-run UST fund. In Connecticut, the fund for cleaning up leaking UST’s is sitting in the path of upcoming budget cuts. “Connecticut still does not have a budget, and there is a proposal to cut funding by 50%, from $10 million a year to $5 million,” he said.
The state also mandates a $10,000 deductible before reimbursement.
Operator training in this area remains a concern. Almost all of the Energy Policy Act requirement deadlines have passed, with the exception of the operator training requirement available at www.epa.gov. According to that requirement, states receiving federal LUST Trust Fund money must require operators be trained by August 2012. Because states are the primary implementers of the UST program, retailers should contact their state UST programs (http://www.epa.gov/oust/states/statcon1.htm) for compliance requirements and dates.
Training and tests in each state are different, which poses another set of challenges for multi-state operators. Mark Larson, executive director of the Colorado/Wyoming Petroleum Marketers in Wheat Ridge, Colo., said each state is devising what information is necessary for operators to be able to qualify as an underground storage tank operator as required by the Energy Policy Act of 2005.
In Wyoming, Larson said, “the test is incredibly difficult because in order to be a Class A operator you have to know both underground storage tanks and aboveground storage tanks before you take the ICC (International Code Council) test. It is incredibly arduous and difficult, and people are failing.”
The way Colorado wrote the regulations, however, “you can have third-party providers get approved by the state and give you the class, the test and the certification,” Larson said. “It’s great. We even have online training in Colorado. Everybody just raves about it.”
Such differences in state regulations make it vital for operators to stay plugged in to legislators NACS and other state petroleum associations. CSD