The Nickel Report

This summer, California’s State Water Resources Control Board (State Water Board) adopted amendments to the Underground Storage Tank (UST) Regulations (California Code of Regulations, title 23, division 3, chapter 16). The new regulations, which become effective on October 1, 2018, impose new design and construction, upgrading, monitoring, notification, testing, inspection, recordkeeping, training and reporting requirements on UST owners and operators in California. The State Water Board’s purpose in amending these regulations was essentially two-fold: (1) to effectively make the California UST regulations just as stringent, and consistent with, the federal UST regulations (part 280 of 40 Code of Federal Regulations); and (2) to reduce the risk of groundwater contamination resulting from UST releases.

California’s UST Program

A UST is defined by law as “any one or combination of tanks, including pipes connected thereto, that is used for the storage of hazardous substances and that is substantially or totally beneath the surface of the ground” (several exceptions apply).[1]

The California UST regulations are part of the State Water Board’s larger program to regulate releases of petroleum and other hazardous substances from tanks. The four critical elements of the program are (1) Leak Protection: requirements for tank installation, construction, testing, leak detection, spill containment and overfill protection; (2) Cleanup: involving soil and groundwater investigation and remediation under the direction of the local regulatory agency; (3) Enforcement: State Water Board assistance to local agencies enforcing UST requirements; and (4) Tank Tester Licensing: tank integrity testing by licensed testers, using State Water Board requirements, must be conducted. The State Water Board and the Regional Water Quality Control Boards implement and enforce California’s UST program with the assistance of Certified Unified Program Agencies (CUPAs), which have authority to regulate the construction, operation, repair and removal of USTs and, in some cases, oversee cleanup requirements.

Purpose of the Amendments: “Reconciliation” of State and Federal Regulations

The US EPA (EPA) also has regulations applicable to UST systems. EPA last amended its UST regulations on October 13, 2015, to include new operation, maintenance, inspection and training requirements, among other provisions. Some of these requirements became effective immediately, whereas others have staggered implementation dates out to October 13, 2018.

EPA’s UST regulations apply in states that have not received formal “State Program Approval” from EPA. However, these non-approved states also implement and enforce their own UST leak prevention and release detection regulations. This means, in some circumstances, that UST owners and operators may face potentially conflicting state and federal UST requirements. This discrepancy is confusing for the regulated community and also presents an unwanted challenge for the regulators.

It may come as a surprise that EPA has not formally approved California’s UST program. Consequently, California UST owners and operators were held to these binary requirements … until now. To reduce this regulatory confusion, the State Water Board amended the California UST regulations to eliminate, or at least reduce, inconsistencies with the federal UST program. The new California regulations are at least as stringent as the federal UST regulations. Certain requirements were also clarified to be consistent with the federal law. Importantly, however, California’s UST regulations are not identical to the federal UST regulations. According to the State Water Board, making them so would create inconsistencies with California’s groundwater protection policies and existing state law, among other reasons.

The Most Impactful Amendments: What You Need to Know

 With the exception of cleanup and enforcement, the amendments to the California UST regulations affect almost every component of the UST program, including construction requirements for new USTs; monitoring requirements for new and existing USTs; and requirements for unauthorized release reporting and the repair, upgrade and closure of USTs. These requirements are not “new” to UST owners and operators because EPA promulgated its federal analogue three years ago. Nevertheless, it is worth summarizing some of the highlights below.

Equipment Upgrades and Inspections

The regulations impose new upgrade requirements when installation, repair or replacement of specific UST components is required. For example, overfill prevention equipment can no longer use flow restrictors on vent piping and must be retrofitted to not allow for manual override. To meet other upgrade requirements, buried pressurized piping connected to emergency generator tank systems must be equipped with an automatic line leak detector, buried single-walled pipe must be upgraded to double-walled pipe, and under-dispenser containment and under-dispenser spill containment or control systems must also be upgraded. The regulations also impose new requirements for overfill prevention equipment inspections.

It is also worth noting that Health and Safety Code section 25292.05 requires the permanent closure of all single-walled USTs by December 31, 2025.

Testing

The regulations impose new requirements on testing of spill containers and cathodic protection systems, as well as clarify that all components of secondary containment are subject to periodic testing. Other testing requirements relate to how the testing is performed and how test results are recorded and reported.

Inspections and Monitoring

The regulations do not require any new facility inspections, but impose new requirements on the designated UST operator visual inspection that already occurs, such as how frequently the visual inspection must be performed, how the inspection is to be performed and how the results are recorded. In addition, manual tank gauging and manual inventory reconciliation are officially[2] no longer authorized non-visual monitoring methods for leak detection. This update will particularly affect small tanks and new tanks that contain motor vehicle fuel. However, the regulations add continuous in-tank leak detection as an authorized non-visual/quantitative release detection monitoring method consistent with federal UST regulations.

Compliance Deadlines for Testing and Inspections

UST owners and operators are now allowed to complete testing and inspections by the end of the calendar month in which the activity is required. For example, if a regulation requires a test once every 12 months and the test is completed on June 1, then the following year’s test must be completed by June 30. This regulation provides additional flexibility in the event unforeseen circumstances arise that would prevent the testing or inspections from being completed on or before a specific day in the month.

Estimated Costs of Compliance

The State Water Board prepared an Economic and Fiscal Impact Statement for these new regulations. According to the analysis, all UST owners and operators will be subject to a minimum increase of $200 per year to meet new periodic inspection and reporting requirements, or approximately $4,000 to $7,600 over the lifetime of the regulations (20 years). Any additional capital or other ongoing costs will depend on the construction of the USTs and whether upgrades are required, such as the overfill prevention equipment upgrade requirement or upgrades from single-walled to double-walled piping. The State Water Board estimates that businesses required to meet all upgrade requirements may incur close to $328,000 in costs over 20 years.

Will California Receive State Program Approval?

Now that California has promulgated UST regulations in accord with EPA requirements, California may be one step closer towards qualifying for “State Program Approval” from EPA. Federal UST regulations require that a state formally apply to EPA for approval. EPA will consider State Program Approval of a state UST program if the program meets three criteria:

1. It sets standards for eight performance criteria that are no less stringent than federal standards.
2. It contains provisions for adequate enforcement.
3. It regulates at least the same USTs as are regulated under federal standards.

The State Water Board has not announced any intent to seek State Program Approval from EPA, but, having amended its regulations to create consistency with the federal requirements, California could apply at this point. State Program Approval in California would further streamline the UST program to the benefit of regulated stakeholders. Not only would it certify that the California UST regulations apply in lieu of the federal UST regulations, but it would also confirm that the State Water Board and the CUPAs have primary responsibility for enforcement of the UST program. EPA keeps a running list of approved state programs here.

[1] California Health and Safety Code § 25281(y).

[2] Manual tank gauging has not been an acceptable form of monitoring since January 2007, and manual inventory reconciliation has not been accepted since December 1998.