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The US Environmental Protection Agency's underground storage tank program celebrated its 20th anniversary this year. Anniversaries are a time to look back at how things were, how things are today and what the future holds in store. Where underground storage tanks are concerned - from leaks and remediation to the compliance with existing regulations - the story is one of considerable success but with a lot of work still to be done. There were over 2 million petroleum and hazardous substance tanks in the ground, mostly bare steel tanks without cathodic protection and in varying states of soundness. Given the scope of the problem, EPA chose a decentralized approach that relied heavily upon the individual states to be the primary players in the process with the agency's Office of Underground Storage Tanks providing guidance and handling, more directly, issues related to Indian Country (Native American tribal lands). Today, 33 states, the District of Columbia and the Commonwealth of Puerto Rico, operate state programs that have been approved by the EPA, and the majority of the remaining states are implementing their own tank programs under EPA cooperative agreements.

THE U.S. ENVIRONMENTAL PROTECTION Agency's underground storage tank program celebrated its 20th anniversary this year. Anniversaries are a time to look back at how things were, how things are today and what the future holds in store. Where underground storage tanks are concerned - from leaks and remediation to the compliance with existing regulations - the story is one of considerable success but with a lot of work still to be done.

The issue of leaking underground storage tanks came to the forefront in 1983 when, as the EPA notes in its anniversary report Building On the Past to Protect the Future, a segment on the CBS News program 60 Minutes highlighted the problems of families throughout the country suffering from the effects of gasoline leaking from underground storage tanks. More attention to the issue followed, and a year later legislation in the form of Subtitle I of the Resource Conservation and Recovery Act required EPA to develop programs to address the issues.

There were over 2 million petroleum and hazardous substance tanks in the ground, mostly bare steel tanks without cathodic protection and in varying states of soundness. Given the scope of the problem, EPA chose a decentralized approach that relied heavily upon the individual states to be the primary players in the process with the agency's Office of Underground Storage Tanks providing guidance and handling, more directly, issues related to Indian Country (Native American tribal lands). Today, 33 states, the District of Columbia and the Commonwealth of Puerto Rico, operate state programs that have been approved by the EPA, and the majority of the remaining states are implementing their own tank programs under EPA cooperative agreements.

From a regulatory standpoint, in 1988 EPA set down requirements for tank owners to cathodically protect, close, upgrade or replace their tanks within 10 years and put in place one of several leak detection methods within five years. For leaks that had occurred, the regulations require owners to report them and clean them up according to state specific standards. Owners also had to choose one of several financial assurance mechanisms to demonstrate they had the financial resources to pay for potential spills.

ACOOMPLISHMENTS

The UST program has resulted in significant suecess. Of the over 2.1 million tanks that were in the ground when the process began, only about 680,000 are in the ground today and the EPA notes that the vast majority of these have been upgraded to meet the equipment requirements of the regulation.

"I think that by far the biggest success of the program has been the tremendous reduction in the number of sources," said Marcel Moreau, UST consultant and president of Portland, Maine-based Marcel Moreau Associates. "The only system that is guaranteed not to leak is the one that isn't there. And the current tank population is well below 50 percent compared to 20 years ago and I think that is the most dramatic success story. Also, in 1984, 85 percent of the tanks were bare steel, and today, depending on which compliance numbers you to want to believe, it's probably below 10 percent. The cathodically protected steel tank got its UL listing in 1969, but sales didn't really take off until 1985 and the same with fiberglass tanks. Prior to that time it was all based on money and a bare steel tank was cheaper."

Even though the tank population is much smaller, and many marginal operators have been driven out of business, tank capacities and aggressive inventory management allow the industry to serve even greater consumer demand.

At the release side, approximately 12,000 new releases were reported in 2003, which is about 60 percent lower than the annual historical average of approximately 27,000.

"We've had close to 440,000 releases and we've cleaned up over 300,000 of them, so almost 70 percent of all releases have been cleaned which is just remarkable given the sheer numbers," said Cliff Rothenstein EPAs Director of the Office of Underground Storage Tanks. "Another more recent success and challenge of our program, is the cleanup of the abandoned tank universe. We've been doing that through our petroleum Brownfields program, where we work with states and local governments to identify, assess and cleanup old, abandoned gas stations and return them to productive uses. This is virtually any type of productive use whether it's a store, a new park, an open space, a house, a fire department - any type of use is good enough for us."

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MORE WORK AHEAD

Although much has been accomplished in the past 20 years, there are areas where definite improvements are in order. EPA notes that even though the proper equipment may be installed at the majority of sites, data shows that compliance with the other aspects of the program is lagging. Approximately 77 percent of active UST systems are in significant operational compliance with the spill, overfill and corrosion protection requirements for release prevention. Approximately 71 percent of active UST systems are in significant operational compliance with the leak detection requirements. About 62 percent of USTs are in significant operational compliance with both release detection and release prevention requirements.

"I would agree with EPA report in the sense that there's been a lot of progress made compared to where we were in 1984," said Greg Scott, of Washington-based Collier Shannon Scott, PLEC. Scott is counsel for the Society of Independent Gasoline Marketers of America. "There has been a massive upgrade of tanks and billions of dollars spent by marketers. I think that SIGMA would take issue with whether or not the process has been completed. It's really a question of, they set the standards in 1988 with a 1998 deadline and there still has not been full enforcement of the standards and there are entire segments out there that have been identified by various government agencies, federal and state, that are woefully under complying."

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That sentiment is acknowledged at EPA. "We still have some significant challenges, and it's going to require perhaps an even greater reliance on our partners because we're approaching some of the more difficult challenges," Rothenstein said. "The first 80 percent is the easiest, and the last 20 is the toughest, and we're being asked to do this at a time when budgets are tight. So it's going to take an incredible amount of partnership and innovation from all of us."

BUDGETARY CHALLENGES

A key to compliance is enforcing existing regulations. A key to enforcing those regulations is an adequate staff of trained state inspectors. And the key to that, which is often missing, is adequate funding. Although an improvement in the economy could help matters, money has been a traditional issue with the program.

"We could definitely see some (improvement in the budget)," said Russ Brauksieck, section chief, spill prevention bulk storage section for the state of New York tanks program. "I don't know of any program in the United States at this point that would say it has all of the staff it needs. We would have no problem keeping additional trained field staff busy inspecting facilties."

Brauksieck noted that in addition to inspections, cutbacks have eliminated a compliance newsletter for the time being. New York is currently evaluating a variety of options to get additional funding.

Most of the federal money available to the states is for remediation efforts, though some limited funding is provided for enforcement and compliance.

Budgeting for enforcement is largely up to the states, either thorough an annual "tank tax" or in some cases a motor fuels tax. Most of the state money comes from annual operator tank taxes or, in some cases, motor fuels taxes.

"I think you would see more uniform compliance if states were able to get more funding, especially the states that don't have the ability to get much beyond federal funding," said Kathy Stiller Banning, co-chair

Association of State and Territorial Solid Waste Management Officials tanks subcommittee and program manager of the Delaware Department of Natural Resources and Environmental Control's tank program. "There are a lot of differences in what different states can use for their funding mechanisms. There are some states out there that can use a gas tax and there are states like Delaware that cannot. We have a gross receipts tax on petroleum in Delaware that we can get some money from for compliance, but we also use it for our limited reimbursement funds."

Although a state can raise the taxes and fees - and some have - political and bureaucratic budgetary realities make this process difficult. Even if taxes are raised, the ultimate use of those funds is not always assured.

LUST TRUST FUND

Although things may be tight at the states, a potential source of funding is waiting to be tapped in Washington.

The Leaking Underground Storage Tank Trust Fund has collected a 0.1 cent federal tax on each gallon of motor fuel sold in the country. LUST funds are used for cleanup purposes where no known tank owner has been identified, or in emergency situations (with a financial recovery mechanism) when the operator is known.

The fund currently stands with a balance of $2.1 billion, anticipated revenues from fees of $183 million in 2004 and interest earned on the balance of $85 million. The appropriations request stands at $72 million.

Various legislation has been proposed in recent years to open up the fund for broader use including enforcement and compliance. The most recent versions were Senator Lincoln Chafee's (R-RI) S. 195, and in the House Congressman Vito Fossella's (R-NY) HR 2733. The bills were virtually the same and their provisions were incorporated into the current energy bill (H.R. 6), which is stalled in the Senate.

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Among other provisions, the legislation would require:

* UST compliance inspections of all tanks at least once every two years.

* Non-compliant operators would be barred from receiving fuel deliveries under a universal "red-tag" program.

* UST operator training would be promoted.

* The enforcement of UST regulations would be enhanced for government operators and on Native American lands.

* A database would be developed and made available to the public that tracks UST compliance.

"We're six years now since the deadline," said Eichberger. "If you look at the LUST trust fund with more than $2 billion in there and they are still only authorizing and appropriating less than $80 million a year while they're collecting more than that in interest - that's ridiculous. It's time that Congress gets off the stick and decides you're either going to have a program that works or you're not. Let's get those guys that are not compliant and shut them down."

Action in congress has been lagging for a variety of reasons. For starters, the unified federal budget, which is a net figure, benefits from a strong LUST surplus that helps offset budgetary losses elsewhere. The same holds true with the unified budget at the EPA, where increased LUST spending would likely require spending cuts elsewhere and LUST issues have not been a major priority. In addition, there has been some concern expressed at EPA in the past about specific provisions that were seen to violate the "polluter pays" concept. Resistance has since mellowed at EPA, and the LUST Trust Fund is seen as being potentially more broadly useful with some provisions.

"I think the agency was pleased with the fact that Congress was looking at the tank program and the provisions to expand the uses of the fund for inspection and enforcement are a good thing, provided that people continue to pay attention to the cleanup side," Rothenstein said. "So I don't think we would necessarily object to that, and that it would actually provide some good benefits."

The first part being addressed by the energy bill is the authorization. Once passed, the appropriation has to be secured. A risk is that the authorization without the appropriation could lead to higher fees for the industry to meet the program goals.

"The SIGMA board considered the risk of some additional surcharges were outweighed by the rewards of an environmentally compliant motor fuels marketing industry," said Scott. "But that was with the understanding that the organization will put enormous pressure on their very capable lobbyists in Washington to make sure that the funding authorization takes place and the appropriations get done."

Unfortunately, with the UST provisions tied into the energy bill that is currently stalled for a range of reasons, it's only a guess as to what will happen next.

OPERATIONAL COMPLIANCE

While waiting for things to move in Washington, there are a variety of things closer to home that EPA, the states and industry can do to improve operational compliance among good-faith tank operators.

"Generally I would probably say the marketer/retailer end is probably in good shape, though we had a conversation with a major oil recently where they made some statements that showed they clearly didn't understand all the requirements of the regulation," said Brauksieck. "We kind of scratched our heads and wondered if a major oil couldn't understand it, then what is the likelihood that the rest of the marketers and retailers actually understood the requirements of the regulation. We probably need to do some more outreach."

Although budgets are an issue, there are problems for the industry to address closer to home. "I think what remains is somewhat of a money challenge, but it's also an education and training challenge," said Banning. "There are some language barrier challenges as well. There are fair number of Middle Eastern and East Asian people leasing stations now and the language barrier presents a challenge in getting them to understand what needs to be done. Overcoming that is going to be a difficult challenge because they're so many dialects in those languages."

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Banning recommends that marketers and retailers work with state regulators and take advantage of the resources they have on hand.

"Some of the station owners run a business very well, but they have difficulties when you get into more complex processes of how to meet the requirements," said Banning. "Don't be afraid to talk to their state regulators. Call and ask questions. Just about every program I talk to their answer's going to be, 'we're here to help you.' I know that can be a scary thing for a lot of people but if you come to us with an issue we may be able to find a solution. If you don't, we may be in the enforcement mode. We're going to be much more willing to work with somebody if they're honest with us then if they're trying to hide something."

In return, the industry is looking to work closer with regulators to help with the compliance challenge.

"We're trying to foster a much better relationship with the regulators because our leadership wants this program to work," said Eichberger. "We are inviting them and giving them comp registrations to the trade show this year. The inspectors and the regulators have a tough job. They don't have the resources they need, they're trying to find those guys who are not doing what they're supposed to be doing and at the same time they come across people trying to do the right thing but who are making a few mistakes here and there. I know they're frustrated, so the better job we can do as an industry of saying we want this program to work as much as you do and how can we make this better and work together to make sure everybody's doing what they're supposed to be doing."

From EPA, there is a continued focus on improving operations and training materials.

"One of the things the industry has told us is that there is a pretty high turnover rate," Rothenstein said. "I think one of the key things we need to do is to make sure the operators are trained. So we need to work with the industry and work with states to put in training programs where we can reach a large, diverse universe of operators. There are some big guys, and a lot of smaller guys, and what we need to do is develop the right type of tool so that operators are trained, so that at least they know what to do in the event of a problem. That's something we need to do collectively."

EPA and the states are developing an easy-to-use, model workbook that can be tailored to individual states for use by tank owners to determine if they're in compliance and identify what needs to be done to reach and maintain compliance. EPA is also putting together a sump manual which would be helpful to owner operators as to what to look for in their sumps, and working on an inspector training manual that it may adapt to cover operator training.

In another initiative, EPA is looking at the Environmental Results Program, which was established as a pilot program in Massachusetts for dry cleaners, photo processors, auto repair shops and other small businesses.

ERP involves an easy to use manual where the tank operator identifies what equipment they have, and the manual walks them through the requirements. At the end, the tank owner can tell if the operation is in compliance or not.

Technology can help the industry in this regard. Using leak detection and inventory management systems that offer centralized monitoring by a dedicated staff, or outsourcing the inventory and compliance task can help make sure sufficient attention is paid to the daily operational requirements.