tle-wr 'England Interstate
Water Pollution Control
Commission
Eoott Mills South
1OO Foot of John Street
Lowell, Massachusetts
O1852-J.124
Bulletin 31
March
1999
LUST.
A Report On Federal & State Programs To Control Leaking Underground Storage Tanks
Now That the '98 Deadline Has Come and Gone...
How's ItGoina?
Field Notes: PEI Survey
By Ellen Frye
^^^"he pur-
I pose of
• the fed-
eral December
22, 1998, dead-
line for replacing,
upgrading, or closing substan-
dard tanks was to drastically
reduce the environmental
threat posed by leaks and
spills from underground
storage systems. While com-
pliance numbers are still quite
fluid at this point, after conduct-
ing a totally off-the-cuff survey of
state UST program managers and
industry representatives, it
appears to us that progress
has been quite—
almost surpris-
ingly—good.
As John
Cernero, EPA
Region 6 UST
Program Manager, says,
"We've been really encouraged
that people took the deadline to heart.
Some people didn't get it all quite right, but they're head-
ing in the right direction."
That being said, it is clear that our upgraded and
replaced tank universe still need.s the vigilance of both
regulators and tank owners and operators. EPA and the
states can't just shut the book and assume the problem is
licked—there are no guarantees that existing systems will
not leak. States will need to turn their attention more
closely to the ABCs of leak prevention. _ ,. , 0
J r • continued on page 2
J MTBE—That Four-Letter Abbreviation
Maine Study Finds MTBE in Drinking Water
i
Which Compound Requires More Attorneys:
MTBE or Benzene? ....,, _^, _.! ^
Tank-nically Speaking: If Only Overfill
Prevention Worked! J
Fraud and Abuse—The Audit Tool ,
Major Oil Company Found Liable as UST Operator
ASTM Update _
Results of Missouri PST Insurance Fund Survey
HQ Update
-------
LUSTLitK Bulletin 31
• How's It Going? from page 1
The Good Riddance Factor
First, let's consider the mind-bog-
gling drop in the regulated UST pop-
ulation over the last 10 years. Last
summer, six UST-related trade asso-
ciations conducted a comprehensive
survey of state and territory UST pro-
gram managers regarding enforce-
ment. The Petroleum Equipment
Institute (PEI) was one of these asso-
ciations. In a November letter to the
members, PEI Executive Vice Presi-
dent Robert Renkes made the follow-
ing observation, based on his review
of the survey results:
"Using the numbers the state
UST program managers gave
us...the nation's underground
storage tank population now
stands somewhere around
860,000 tanks. Fifty-five percent
of those are now compliant
with the state UST regulations,
leaving 45 percent that still
must come into compliance.
While at first blush the percent-
LUSTLine
Ellen Frye, Editor
j Ricki Pappo, Layout _
^cclM^caUjTechnicgl.AAvisorJContributor^
Lynn DePont, EPA Project Officer
t^a Bijou, OUST Liaison
js a product of the New England
Env
, ..-
LUSTLme is issue
service for the Subtitle IRCRA „
_ Hazardous & Solid Waste_Arjjsidments j
=f rule promulgation process. -j
. * * j,.™. j«"
-------
LUSTLine Bulletin 31
ttvree ttvorvttvs before tKe deadline.
Because the weather was unsea-
sonably warm, contractors were
able to accomplish more than they
normally could have.
I With the first wave of the New
Jersey DBF's enforcement work,
about 625 facilities elected to take
advantage of an "enforcement
document" incentive, whereby
facility owners had the opportu-
nity to come to DEP to sign an
administrative consent order. The
incentives were associated with
either gaining eligibility for finan-
cial aid or paying a penalty and
entering into a compliance sched-
ule before penalties escalate.
I By mid-January, compliance irt
Delaware had jumped 13 percent
over a two-and-half month period.
I As of February 8, Tennessee's
database indicated 54.6 percent
compliance, but this number is
derived from a database that
includes a large number of tem-
porarily out-of-service or aban-
doned tanks that must be
properly closed. As in most states,
while these tanks remain on the
books as noncompliant, exact
compliance figures are tough to
nail down. Tennessee's state-
owned tanks are in really good
shape. When all is said and done,
there will be very few state-
owned tanks. State agencies don't
want the responsibility and liabil-
ity of owning tanks; they're get-
ting out of the fuel business.
In California, an estimated 90 per-
cent of the state's regulated tanks
have been replaced, upgraded, or
properly closed. The state's com-
pliance certificate program really
got people's attention—noncom-
pliant owners and operators can't
get fuel. Although the program
kicked in on 1 /1 / 99, some distrib-
utors had stopped making deliv-
eries to noncompliant facilities
earlier on.
According to the North Carolina
database, 75 percent of the state's
facilities, or 80 percent of its total
tanks, are in compliance with
deadline requirements. However,
a phone survey of those facilities
identified as noncompliant sug-
gested that facility compliance is
closer to 85 to 88 percent. Emer-
gency generator tanks containing
diesel fuel have emerged as a prob-
lem, primarily because owners had
assumed they were exempt.
John Cernero of EPA Region 6
conducted inspections in the
region during the first two weeks
of January. Besides finding a num-
ber of facilities in temporary clo-
sure, the most common violation
he cited involved tank systems
that had been replaced or
upgraded but where not all metal
parts had been protected from cor-
rosion (e.g., metal components of
fiberglass piping lines).
lue to shortages, many tank owners
are finding themselves out of
'Compliance anil in a waiting mode.
|7jWs puts the states in the position of ]
'having to deal with owners and
operators who are moving in the
"right direction hut are in violation
just the same.
The Shortage Factor
As predicted, many tanks owners
Waited until the very last minute to
make their compliance move. Also as
predicted, some equipment has been
backlogged, particularly tanks. Like-
wise, contractors have been booked
solid.
"Our members are reporting that
compliance-related work has been 20
to 30 percent of their workload; the
rest is their normal course of busi-
ness," says Bob Renkes. "From a
business standpoint, contractors will
service their long-term customers
first. The smaller facility owners who
line up late are the most likely to
have trouble finding a contractor."
As a result, many tank owners
are finding themselves out of compli-
ance and in a waiting mode. This
puts the states in the position of hav-
ing to deal with owners and opera-
tors who are moving in the right
direction but are in violation just the
same. States are handling this situa-
tion primarily by requiring tempo-
rary closure until the facility comes
into compliance. Some states have
acknowledged good-faith efforts to
comply.
"We told people if they got writ-
ten documentation prior to the dead-
line that work was in progress and
they presented a compliance date,
they would get a Notice of Violation
but not a penalty unless they missed
that date," says Doug Miller, Storage
Tank Coordinator for the South
Dakota Department of the Environ-
ment and Natural Resources
(DENR).
Now Back to the ABCs
One thing that Bill Reid of the North
Carolina Division of Water Quality
UST program noted when we spoke
was that as of February 17,53 Notices
• continued on page 4
-------
LUSTLinc Bulletin 31
• How's It Going? from page 3
of Violation (NOVs) had been issued
for corrosion protection and spill and
overfill violations, but 115 nondead-
line NOVs had also been issued,
mostly for leak detection violations.
"People are not paying attention
to the leak detection portion of the
regs," cautions John Cernero. "Peo-
ple have automatic tank gauges
(ATGs) that are in alarm condition,
but they won't believe that they have
a problem—no matter how hard the
ATG tries to tell them. If we're not
vigilant, we'll end up creating a
whole new generation of tanks sys-
tems that are not working [to prevent
leaks]. We're still finding a lot of
problems with leak detection."
"Leak detection!" exclaims Russ
Ellison of the Virginia DEQ. "With
all of this attention to the deadline,
let's not forget leak detection,
because leak detection is the only
way we'll be able to protect the envi-
ronment if a system fails."
Recognizing that any of the gad-
getry associated with USTs may not
actually be working at any given time
during the life of a system, Maine
and California require that tank
owners and operators have annual
maintenance checks to ensure that
equipment, particularly leak detec-
tion equipment, is working. These
checks are performed by contractors
from the private sector, who are
hired by the tank owner. The Califor-
nia Water Resources Control Board is
pushing to have a certification pro-
gram for these contractors so they are
trained to do proper inspections. In
Maine, this work is limited to certi-
fied installers or trained manufactur-
ers' representatives.
Clearly, states want to be sure
that tank owners and operators
understand how their systems work
and what they need to do to ensure
they %vork. In its planning process,
EPA's Office of Underground Stor-
age Tanks (OUST) identified similar
concerns. (See HQ Update on back
page.) As a result, OUST is turning its
attention to two important UST
issues: UST systems evaluation and
operation and maintenance.
"It's good to see the compliance
numbers going up," says Bill Reid,
"because it shows that all our work
over the years was worthwhile." But
the job ain't over. •
Washington's UST Compliance Hotline
The Washington State Department of Ecology is using market-sector incentives
to attempt to leverage compliance with the UST requirements. The department
has issued compliance tags to UST facilities that have spill, overfill, and corrosion
protection. Fuel distributors may not deliver to facilities that do not have a tag dis-
played. To back up this requirement, the department has posted a list of all compli-
ant facilities on its Internet page and has established a toll-free number for truck
drivers, other owner/operators,
and the public to report UST vio-
lations.
UST Compliance Hotline
1-800-826-7716
A Year and a Half After Its Final Deadline,
Maine Nears 100% Compliance
Yes, the State of Maine is nearing 100 percent compliance with its tank removal
deadline. The state had a phased-in deadline for its regulated tanks (including
heating oil tanks) based on the age of the tank and its proximity to groundwater or
drinking water. No upgrading was allowed; UST systems had to be removed or
replaced with secondary containment systems and interstitial monitoring. The latest
possible date for removal of all tanks, except those owned by municipalities and
school administrative units, was October 1,1997.
With a starting population of 34,250 USTs, the state's current tank population
has been whittled down to about 5,375 conforming active tanks. "One reason why
this number is so low," explains Diana Mclaughlin, DEP's UST Program Coordinator,
"is that many of our smaller mom-and-pop operations replaced their various product
tanks with single, multicompartmented tanks."
The Maine Department of Environmental Protection (DEP) estimates that about
90 federally mandated bare steel tanks used for wholesale and retail product storage
are still in the ground; about 60 of these are probably not active.
"We anticipate that a significant amount of staff resources, including legal assis-
tance, will be needed to bring the remaining few bare-steel tank owners into compli-
ance," says Mclaughlin.
What's Next?
Not resting on their laurels, DEP UST staff have turned their attention to the remaining
active tanks. "Despite numerous education outreach programs, mass mailings, and
media attention to the tank removal deadline, over 70 percent of the facilities
we inspect are in violation of one or more of the applicable regulations," says
Mclaughlin.
"While compliance inspections are consistently the most effective tool for edu-
cating facility owners and operators about proper operation, leak detection, and main-
tenance of their tank systems," explains Mclaughlin, "our staff resources have been
limited in the past. We now look forward to having the ability to provide more proac-
tive technical assistance to owners and operators.'*
-------
LUSTLine Bulletin 31
from Robert N. Renkes, Executive Vice President, Petroleum Equipment Institute
PEI Keeping the State Survey Ball Rolling
Last summer, PEI and five other trade associa-
tions developed a comprehensive survey on
underground storage tank (UST) enforcement
issues. PEI mailed that survey to all state and territor-
ial UST program managers on August 10, 1998. By
November, PEI had received responses from all 50
states. The responses were posted on FBI's Web site
(www.pei.org).
The states' responses to the survey generated a
tremendous amount of interest, not only from the regu-
lated community but also from the industry trade press
and the national media. Articles about UST enforce-
ment issues and tank upgrade compliance rates
appeared in such publications as the Wall Street Journal,
New York Times, and San Francisco Chronicle.
Clearly, we've been trying to keep up with a mov-
ing target, and the information shown on our Web site
has grown somewhat old and stale with time.
Although UST program managers were given the
opportunity to amend their answers to our questions
any time after they returned the initial survey, few did.
Many tank owners who visited our site this year ques-
tioned whether the responses were still valid, espe-
cially in light of the U.S. EPA enforcement strategy
announced in December.
PEI had two options: Either remove the informa-
tion from our Web site or aggressively seek to update
the responses. We chose the latter. Letters, or e-mails
were sent to the states in February, encouraging UST
program managers to review the information we
showed and make changes to their responses where
appropriate. Many have already made changes that
are reflected on our Web site, while some have simply
confirmed that the information previously submitted
to us is still valid. Additional responses from the states
will be posted as received. To access the response of a
particular state, visit www.pei.org/epa and then click
on the state you want to review.
It is PEI's intent to provide the regulated commu-
nity with the most up-to-date information on UST
compliance figures and enforcement strategies. We
appreciate the help of the UST program managers who
took the time to respond to our inquiries.B
SNRPSHOTS FROM TH€ FI€LD
Buses throughout Connecticut caught the eye of more than just tank owners over a period of several months.
CTDEP deemed this ad campaign a success.
ave any UST/LUST^related snapshots from the field that you would like to share with our readers, please send
them to Ellen Frye c/o NEIWPCC.
-------
LUSTUnc Bulletin 31
Investigation and Remediation
HTBE—That Four-Letter Worrr...Umm
Abbreviation
A Special LUSTLine Update by Pat Ellis
k | the gasoline additive Methyl tertiary Butyl Ether (MTBE)
I continues to be mired in controversy across the country.
JL MTBE-ese is no longer the province of regulators, scientists,
and oil companies. Its ignominy has found its way into the household
vocabulary. Its specter seems ever more pervasive and confounding.
Originally added to gasoline to boost octane, and later added to help meet
the requirements of the Clean Air Act, MTBE may be benefiting air quality at the
expense of water quality. Within the past few years, a tremendous amount of activity
has taken place with respect to MTBE, and several recent studies have recommended
phasing out the use of MTBE and evaluating other alternatives that will still benefit air
qualify.
According to a January 1999 survey conducted by Michael Martinson of Delta Environ-
mental Consultants, Inc., for U.S. EPA, 15 states have adopted MTBE groundwater stan-
dards; three states have site-specific MTBE cleanup levels; seven states are planning to
establish or change their MTBE standards; and five states are using the EPA MCL/Health
Advisory as a basis for their health standard.
This article summarizes some of the most recent activity on MTBE, much of which is
occurring in California. Keep in mind that MTBE is a moving target in more ways than
one; new information is constantly emerging and being updated. Also, check out David
McCaskill's article "A Little Drop'll Do Ya" (page 12) in this issue of LUSTLine to find out
about Maine's study on the presence of MTBE in drinking water wells.
MTBE may be
benefiting air quality
at the expense of
water quality.
The UC Davis Study
On November 12,1998, the Univer-
sity of California at Davis delivered a
multivolume report to the governor.
Senate Bill 521—the Mountjoy Bill-
required this study. California's new
governor, Gray Davis, will evaluate
the report and decide a course of
action for the state. The study recom-
mended that California consider a
gradual phase-out of MTBE from its
dean-air gasoline program. The uni-
versity was paid $500,000 by the state
to conduct an unbiased and authori-
tative study of the health impact and
environmental impacts of MTBE.
The study cautioned, "If MTBE
continues to be used at current levels
and more sources become contami-
nated, the potential for regional
degradation of water resources, espe-
cially groundwater basins, will
increase. Severity of water shortages
during drought years will be exacer-
bated." The report recommends a
gradual phase-out, with a series of
suggested options for doing so in a
manner that will allow for a thorough
study of the environmental impacts
of any chosen strategy. The report
also concluded that emissions control
technologies on newer automobiles
and new gasoline formulations have
dramatically decreased the air qual-
ity benefits associated with adding
oxygenates to gasoline. The potential
for water contamination by MTBE is
a cost that is not offset by a corre-
sponding benefit.
suggested options for doing so in a
Kiiilsl&ftg'HifHiMSiiS^ »x*s
^^Mmnimii^J^^L^^^
oJan'y chosen strategy* "*
One of the conclusions reached
by the study for potential health
problems caused by MTBE was that
"There are no human data on which
an evaluation of the carcinogenicity
of MTBE can be based. However,
substantial evidence from studies of
chronic exposure by either oral or
inhalation routes demonstrate that
MTBE is carcinogenic in rats and
mice. Based on a thorough review of
these carcinogenicity studies, sup-
porting data on pathology, and
mechanisms of tumor induction, and
carcinogenicity studies of MTBE's
primary metabolites (TBA and
formaldehyde), we conclude that
MTBE is an animal carcinogen with
the potential to cause cancer in
humans...." The report does continue
by saying that "Uncertainties remain
about the nature and extent of risk
for humans, especially for exposure
to doses lower man those used in ani-
mal studies."
The full text of this report, almost 900
pages long, is available on the Web at
http://tsrtp.ucdavis.edu/mtberpt. The
volumes are available separately for
download. Volume I: Summary and
Recommendations; Volume II: Human
Health Effects; Volume III: Air Quality
and Ecological Effects; Volume IV:
Ground and Surface Water, Volume V:
Risk Assessment: Exposure Assess-
ment, Water Treatment, and Cost Ben-
efit Analysis.
Lake Tahoe Area,
California/Nevada
The Mountjoy Bill also required a
separate study of MTBE in the Lake
Tahoe Basin. Nonpoint sources were
not shown to have any significant
effect on ground or surface water
-------
LUSTLine Bulletin 31
quality in the basin. Point-source con-
tamination by MTBE was also inves-
tigated. Few data exist for the
Nevada portion of the basin because,
as of July 1998, analysis of drinking
water for MTBE has not been
required in the state.
As of September 1998, Nevada
had not required MTBE analysis for
leaking underground storage tank
(LUST) sites. Beginning in spring
1998, however, the Nevada Depart-
ment of Environmental Protection
(NDEP) recommended but did not
require analysis for MTBE at LUST
sites. Of the five sites on the Nevada
side of the lake that were listed as
having groundwater impacts, only
two have been tested for MTBE. On
the California side of the basin, the
Lahontan Regional Water Quality
Control Board has requested MTBE
monitoring in groundwater wells at
leaking underground fuel tank
(LUFT) sites since June 1996. As of
July 1998, 29 LUFT sites out of 43
active LUFT sites had confirmed
MTBE detections.
Analysis for MTBE has only
recently been required for community
and nontransient water systems in
California. Limited testing has been
done within the Tahoe Basin so far,
and no detections have been reported.
As of July 1998, the California Depart-
ment of Health Services listed 41 large
public water systems -within the
Tahoe Basin that have been moni-
tored for MTBE, 34 of which are oper-
ated by the South Tahoe Public Utility
District (STPUD).
MTBE has been detected in 5 of
the 41 systems tested, 3 of which are
in the STPUD. Eight additional South
Tahoe wells and three motel wells are
considered "threatened" by MTBE
from nearby plumes (based on infor-
mation about the proximity of the
? Based on the results of these
,_
t studies, the Tahoe Regional
£ Planning Agency enacted an
r. ordinance banning water craft
propelled by carburated two-stroke
tjngines from Lake Tahoe beginning
•t- June 1,1999.
1
f
plume, the source MTBE concentra-
tion level, site hydrology, and well
construction details). Since Septem-
ber 1997, 13 STPUD wells have been
shut down because of the presence or
threat of MTBE contamination.
Of the five LUFT sites that have
been identified as sources for MTBE
plumes that have contaminated or
threatened eleven STPUD and three
motel wells, reported MTBE concen-
OK PARDNER,
YOU HAVE SIX MONTHS TO
GET OUTTA TOWN??
trations have ranged from 3,300 ppb
to 91,500 ppb in groundwater. Plume
lengths range from greater than 250
feet to greater than 1,500 feet. Ben-
zene plume lengths range from less
than 40 feet to greater than 1,050 feet.
At all sites, MTBE plumes were com-
parable in size or larger than benzene
plumes.
Lake Tahoe surface water has
also been studied. During 1997, the
U.S. Geological Survey (USGS) moni-
tored a series of near-shore areas in
Lake Tahoe where water craft activ-
ity is common, several open-water
locations, and several background
reference lakes that largely do not
allow motorized boating. MTBE was
found at levels ranging from 0.30 ppb
to 4.2 ppb in areas of motorized boat-
ing, at less than 0.51 ppb in the open-
water areas, and at undetectable
(<0.11 ppb) in the lakes with little
motorized boating.
Samples collected by the Lahotan
Regional Water Quality Control
Board in 1997 in areas of known boat
use showed levels as high as 47 ppb
near a fuel storage area and 20 ppb
near a jet ski storage area. The USGS
found detectable concentrations of
MTBE at depths as great as 90 feet
during the 1997 boating season.
Lake Tahoe is used exclusively as
a source of drinking water by a num-
ber of suppliers and is used as a sum-
mer reserve or backup supply by
others. In addition, many
homes along the water-
front still have private
intakes from the lake.
Only one water pur-
veyor has consis-
tently had MTBE
levels above the
detection limit dur-
ing the boating sea-
son at the intake.
Testing has been
limited, however.
Based on the
results of these stud-
• continued on page 8
-------
LUSTLine Bulletin 31
I tKTBEfrom page 7
ies, the Tahoe Regional Planning
Agency (TRPA) enacted an ordinance
banning water craft propelled by car-
burated two-stroke engines from
Lake Tahoe beginning June 1,1999. A
Federal District Court judge dis-
missed all 18 claims brought by jet ski
manufacturers and retailers challeng-
ing the ordinance. The TRPA ordi-
nance was the first of its kind to
apply to federally regulated waters.
The judge's order dismissed 13 of
the plaintiffs' 18 claims permanently
and holds that 5 claims cannot be sus-
tained based on their current word-
ing. The claims that were completely
dismissed allege that the ordinance
violated the U.S. Constitution's tak-
ings, due process, and commerce
clauses; federal and state laws
protecting access to navigable water-
ways; the U.S. Constitution's prohibi-
tion against vague laws; and a
number of state laws regulating boat-
ing and access to navigable waters.
The claims that were dismissed with-
out prejudice deal with consideration
of environmental impacts, and claims
under the Federal Clean Water Act
and Sportfish Restoration Act.
In further action against MTBE,
the city council in South Lake Tahoe
gave MTBE six months to "get out of
town." Gasoline dealers have until
April 1999 to get rid of their gasoline
containing MTBE. The South Tahoe
Utility District has sued oil compa-
nies to recover water treatment costs.
The South Tahoe Public Utility
District has filed suit against seven
oil companies and five service sta-
tions, alleging that 12 of its 35 drink-
ing-water wells have been shut down
due to MTBE contamination. The
utility has sued oil companies to
recover water treatment costs.
California Energy
Commission MTBE Study
In October 1998, the California
Energy Commission (CEC) submit-
ted a report to the legislature that
examined the possibility of eliminat-
ing the use of MTBE in gasoline. The
study evaluated the effect such a
change would have on the supply
and price of gasoline for consumers
in California. The findings of this
study indicate that the cost impacts
for consumers are directly related to
the period of time permitted for
phasing out MTBE.
If the use of MTBE were discon-
tinued immediately, the conse-
quences would be "dire for
consumers and catastrophic for the
state's economy." For example, it is
estimated that a three-year phase-out
of MTBE would add seven to nine
cents per gallon to the cost of gaso-
line in California, or $700 million
per year. The CEC recommended a
six-year plan to make the phase-out
monetarily feasible.
The entire text of this study is
available on the Web at:
http'JIwww. energy, ca.govIm the.
Fuel Future for California?
On December 11,1998, the California
Air Resource Board (CARB) refused
to ease its rules that require a gaso-
line Reid vapor pressure (RVP) of 7
pounds per square inch (psi). Ethanol
blended at 10 percent would raise
RVP to 8 psi. Blends of 10 percent
ethanol are required to qualify for a
national tax incentive.
In September 1998, former Cali-
fornia Governor Pete Wilson vetoed a
bill that would have opened the
state's oxygenate program to ethanol,
allowing the ethanol to compete with
MTBE. The new California governor,
Gray Davis, will make a decision in
1999 as to whether to ban, phase out,
or continue using MTBE in gasoline
in California.
Senator Diane Feinstein (D-CA)
and Rep. Brian Bilbray (R-CA) have
reintroduced a bill in Congress that
would remove the California require-
ment that gasoline contain at least 2
percent oxygenates. Congress did not
act upon a similar proposal in 1998.
The California oil industry is
already deciding for itself what to do
about MTBE. Tosco, Chevron, and
Shell have announced they will make
gasoline without it. California refin-
ers are fighting about reformulated
gasoline (RFG) formulations that will
meet the state's emission standards
without MTBE.
Tosco has been selling RFG that
uses ethanol in place of MTBE since
April 1998 in a pilot program
approved by CARB. The challenge
was for Tosco to replace MTBE with
ethanol without exceeding Califor-
nia's summer RVP standard of 7 psi.
Ethanol's blending RVP is 18;
MTBE's is just 3-4 psi. (MTBE helps
reduce the volatility of gasoline,
which reduces evaporative emissions
from vehicles or service stations,
whereas ethanol tends to increase
evaporative emissions.) Tosco
reached this ethanol RVP
by removing lighter frac-
tions from gasoline
and blending the
remaining fuel
with ethanol to 5.7
volume percent.
Recently,
Chevron also
started producing
RFG that it claims
meets state and
federal emissions
standards while
containing no oxy-
genates. The com-
pany has declined to
comment on the new for-
mulation, but the new gaso-
line, like Tosco's, is designed
for those areas of the state that meet
ozone standards and were recently
declared by EPA to be in compliance
for carbon monoxide. New CARB
regulations allowing the elimination
of oxygenates in these areas went
into effect on September 21.
California has unique status
under the Clean Air Act. Because its
air pollution program predated the
federal program and because air
quality in portions of the state is
worse than anywhere else in the
country, California is allowed to have
separate regulations for fuels. Thus
gasoline sold in portions of the state
(Los Angeles, Sacramento, and San
Diego) must meet two separate sets
of requirements—state and federal.
The federal requirements, speci-
fied in the Clean Air Act, mandate
that RFG contain at least 2 percent
oxygen by weight (a requirement
now generally met by adding MTBE
to gasoline). California's standards,
which became effective a year later
than the federal requirements,
include an oxygen content specifica-
tion "because of the oxygen require-
ments in the federal RFG program."
According to CAL EPA, how-
ever, "a key element of the California
program is a mathematical or 'pre-
dictive' model that allows refiners to
vary the composition of their gaso-
line as long as they achieve equiva-
8
-------
LUSTLine Bulletin 31
lent emission restrictions.. .For areas
not subject to federal RFG require-
ments, refiners can use the predictive
model to reduce or even eliminate
the use of oxygenates/' except during
the four winter months, when they
are subject to separate oxygenate
requirements to reduce carbon
monoxide.
This gasoline cannot, however,
be used in all parts of the state. The
Clean Air Act Amendments require
that gasoline sold in ozone-nonat-
tainment areas contain 2 wt. % oxy-
genate. This consideration applies to
the state's most populated areas.
A group called Communities for
a Better Environment has filed a
broad, MTBE-related suit in a local
state court that accuses Unocal, Arco,
Chevron, Exxon, Mobil,
Shell, Texaco, and Tosco
of violating California's
Unfair Competition
Act by profiting by
selling a product
they already knew
to be defective.
Unocal has
filed a patent-
infringement
against six of
these companies
(excluding Tosco)
over RFG formulations
patented by Unocal in
1994. On August 31, a
federal judge ruled in
favor of Unocal. Earlier, a jury
had awarded Unocal 5.75 cents
per gallon in royalties for gasoline
manufactured by the six companies,
which could amount to $69 million.
Appeals are being made by most of
the manufacturers (Chemical Engi-
neering, November 1998, p. 56.)
Santa Monica, California
In the summer of 1996, the City of
Santa Monica ceased pumping
groundwater from its Charnock and
Arcadia well fields due to persistent
and increasing concentrations of
MTBE in all seven water supply
wells. This lost production accounted
for approximately 80 percent of the
city's drinking water supply. The
city, in cooperation with state and
federal officials and participating oil
companies, initiated an investigation
of MTBE contamination in the well
fields to delineate the extent of conta-
mination, identify potentially respon-
sible parties, and collect data needed
to design and implement an effective
remediation program.
At the Arcadia well field, the
most likely source of contamination
is a former Mobil service station
located immediately adjacent to the
well field. The city filed a lawsuit
charging Mobil with "gross and will-
ful negligence." In response to a
cleanup and abatement order, Mobil
has removed the tanks, dispensers,
and piping; demolished the building;
excavated contaminated soil to a
depth of 10 feet; delineated the
vadose zone contamination beyond
the station property; conducted an
assessment of hydrogeologic and
contaminant conditions to delineate
MTBE contaminant extent in ground-
water and to help evaluate migration
Concentrations as high as 610 ppb
were observed at the Charnock well ]
Held, and the seven wells have been ;
closed. In the area are 20
_-^-_ ." -• - • • -*,
"possible " sources of contami- \
|» nation, including two pipelines that
pi/™ directly through the well field. "'.
in. I.II...N. L.H. ' '"' ' •' "*
pathways from the release to the pro-
duction wells; performed numerical
groundwater flow and solute trans-
port modeling to assist in pathway
evaluation and remediation
design; installed and is operating an
interim pump-and-treat system for
the shallow aquifer; and evaluated
treatment technologies for drinking
water contaminated with MTBE.
Design of a remediation system
for the Lower and Production
Aquifers is ongoing. The agreement
between the city and Mobil requires
Mobil to pay $2.2 million for the
city's past costs, including the cost of
replacement water; cleanup of the
drinking water to the lesser of 20 ppb
or a more stringent regulatory stan-
dard, which must be met for one year
without treatment before Mobil's
cleanup obligations are satisfied; and
a prohibition on the use of hazardous
materials at the former Mobil station
property. It is projected that all reme-
dial systems will be operational at
this site by February 1999.
Concentrations as high as 610
ppb were observed at the Charnock
well field, and the seven wells have
been closed. In the area are 20 "possi-
ble" sources of contamination,
including two pipelines that run
directly through the well field. Shell
and Chevron have entered into a vol-
untary agreement with the City of
Santa Monica to replace the drinking
water supply and work cooperatively
to investigate contamination at the
well field and implement a remedia-
tion program.
The agreement, which is tempo-
rary and requires renewals through
January 6, 2000, stipulates the
cleanup of the drinking water to the
lesser of 20 ppb or a more stringent
regulatory standard, and requires the
city and Shell/Chevron to work with
the U.S. EPA and Regional Water
Quality Control Board to bring other
companies into the agreement. Cur-
rent activities under way at Charnock
include pipeline testing, a regional
hydrology study, joint EPA/RWQCB
enforcement action, and a treatment
technology evaluation.
Glennville, California
In Glennville, California, several pri-
vate drinking water wells were
discovered to contain high concentra-
tions of MTBE in July 1995. The leak-
ing UST was replaced at the town's
only gas station, but the soil and
groundwater remained contami-
nated. The release contaminated a
shopping center well, along with 21
water supply wells. The county
health department installed a
groundwater treatment system that
was eventually shut down due to
numerous malfunctions. Groundwa-
ter was not analyzed for MTBE at the
time, and subsequent groundwater
monitoring verified that the petro-
leum levels were declining.
In 1997, the State Water Board
sampled previously installed moni-
toring wells, and some of them were
found to contain up to 430 ppm
MTBE and 22 ppm benzene. Unlike
the earlier trend of overall declining
hydrocarbon concentrations, the lev-
els of petroleum hydrocarbons and
MTBE were found to be quite high.
Nearby domestic wells were found to
contain from 5 ppb to 20 ppm MTBE.
Residents were advised to discon-
tinue use of their wells for domestic
purposes.
• continued on page 10
-------
LUSTLine Bulletin 31
• MTBE_/h»n page 9
Tank tightness testing indicated
that the new tank was leaking. Char-
acterization of the product indicated
that the gasoline was manufactured
in the early 1990s. Currently, the
affected residents are being supplied
with bottled water for domestic use.
The Water Board recently decided to
install point-of-entry carbon treat-
ment units on four of the affected
wells. The Board will also install a
10,000-gallon water storage tank at
the shopping center and import
water from the nearest town, about
40 miles away.
Two lawsuits have been filed by
the residents against several major oil
companies. A direct-action lawsuit
filed on behalf of 70 current and for-
mer Glennville residents alleges that
the oil companies failed to warn com-
munity members of health risks asso-
ciated with MTBE and BTEX
compounds and failed to maintain
their USTs. A class-action suit names
four Glennville residents and extends
to other California residents who live
near leaking USTs, making similar
allegations and requesting punitive
damages, medical monitoring for
future health problems, and contami-
nation monitoring.
Livermore MTBE Study
A study by the Lawrence Livermore
National Laboratory was funded by
the California State Water resources
Control Board (SWRCB), U.S.
Department of Energy (DOE), and
Western States Petroleum Associa-
tion (WSPA) to characterize the fate
and transport of MTBE at leaking
UST sites. A final report was issued
in June 1998.
Groundwater monitoring data
were examined at 236 UST sites in
California with 1,858 monitoring
wells. Findings indicated that MTBE
is not significantly degrading in exist-
ing monitoring networks and may be
regarded as recalcitrant under site-
specific conditions. The primary
attenuation mechanism for MTBE is
dispersion. It was estimated that
there are at least 10,000 MTBE-
impacted sites in California.
Although the study showed that
individual MTBE plumes are nearly
equivalent in length or shorter than
corresponding benzene plumes
(based on 20 ppb and 1 ppb delin-
eation, respectively), results predict
that this relationship will change
with time as contaminant plumes
gradually dissociate.
Interpretation of plume lengths is
complicated by the fact that a single
site may have experienced several
releases, resulting in overlying
plumes of gasoline with and without
MTBE. Because of the mobility of
MTBE and recalcitrance to biodegra-
dation, MTBE has the potential to
impact regional groundwater
resources. Water resource manage-
ment on a regional scale will become
increasingly important.
The Livermore MTBE study is
available on the Internet at:
http://www-erd.llnl.gov/mtbe/new-
mtbe.html.
Texas MTBE Plume Study
The Texas MTBE plume study, sup-
ported by the API Health and Envi-
ronmental Services
Department, will be
available soon. A
summary was
presented at the
Houston Petro-
leum Confer-
ence in
Novem-
ber. The
Texas
Bureau
of Economic
Geology compiled
MTBE and benzene
concentration data
from 609 leaking
petroleum storage tank
(LSPT) sites and estimated MTBE
plume lengths at 99 LPST sites and
benzene plume lengths at 289 sites,
both for a concentration of 10 ppb.
Results show that MTBE is
detected in shallow groundwater
beneath 93 percent of the sites in
most parts of the state. Most sites
have MTBE concentrations that
exceed the lower limit of the EPA
advisory level (80% > 40ppb). Geo-
metric mean plume length for an
MTBE concentration of 10 ppb is 182
feet. MTBE extends beyond the moni-
toring well network in about 10 per-
cent of the sites. MTBE plumes are,
on the average, about 27 feet longer
than benzene plumes and are longer
than their companion benzene
plumes at 56 percent of sites. There is
some preliminary evidence that
MTBE plumes may be naturally
attenuating at many sites in Texas,
but better site-specific temporal data
are needed to confirm the occurrence
of natural attenuation of MTBE and
to estimate the fraction of sites that
have stable, growing, or receding
plumes.
Drinking Water Standards
Federal
In December 1997, EPA's Office of
Water released a new Drinking
Water Advisory on MTBE. In gen-
eral, the advisory advises water sup-
pliers to ensure that MTBE levels do
not exceed 20-40 ppb, a level most
likely to avert unpleasant tastes and
odors.
Copies of the drinking water advi-
sory, Consumer Acceptability and
Health Effects Analysis on Methyl Ter-
tiary-Butyl Ether (MtBE), are available
through the Internet at:
http://www.epa.gov/OST/drinking/
mtbe.html.
In addition, MTBE is included in
the Drinking Water Contaminant
Candidate List required by the Safe
Drinking Water Act. This list was
published in February 1998. Final
decisions on whether to establish a
standard on at least five contami-
nants are to be made by August 2001.
U.S. EPA's Office of Research and
Development is working to identify
MTBE research needs. A final report,
"Oxygenates in Water: Critical Infor-
mation and Research Needs," was
issued in December 1998 (EPA/600/
R-98/048).
The report is available on the
Internet at:
http://www.epa.gov/ncea/oxyneeds.htm.
California
Two statutes were signed into law in
California in 1997 regarding MTBE
and drinking water. SB 1189 (Hay-
den) and AB 592 (Kuehl) required the
California Department of Health Ser-
vices to develop secondary and pri-
mary drinking water standards
(MCLs) for MTBE. To establish these
standards, CAL EPA's Office of Envi-
10
-------
LUSTLine Bulletin 31
rorxmervtal HealtK Hazard Assess-
ment compiled available data on
both the carcinogenicity and devel-
opmental and reproductive toxicity
ofMTBE.
Following is an excerpt from the
report, "Evidence on the Carcino-
genicity of Methyl Tertiary Butyl
Ether (MTBE)": "There is evidence
for the carcinogenicity of methyl
tertiary butyl ether (MTBE),
based on several findings from
animal studies. However, crit-
ics have questioned the inter-
pretation of each of the
individual findings.. .An argu-
ment has been made that the
mechanism of induction
of these tumors,
although unknown,
may be nongenotoxic,
and consequently the find-
ings may not be relevant to
humans exposed at environmental
levels."
In this report, the carcinogenicity
studies are reviewed and the issues
that have been raised are addressed
in the context of a detailed discussion
of pathology and mechanisms for
each tumor site. Positive animal car-
cinogenicity data and some further
concordance in tumor sites for
formaldehyde and TEA—metabolites
of MTBE—provide support for the
conclusion that there is evidence of
carcinogenicity in animals. However,
uncertainties remain about the nature
and extent of risk at very low doses
and about the particular tumor sites
that are most relevant to humans.
Documents related to carcinogenic-
ity and developmental and reproductive
toxicity are available by searching the
OEHHA Web page, which can be
accessed at http:llwww.oehaa/ory.
A public meeting of the Carcino-
gen Identification Committee of
OEHHA's Science Advisory Board
was held on December 10,1998. Pre-
sentations for MTBE were to include
staff presentation, Committee discus-
sion, public comments, and Commit-
tee discussion and decision. A
December 12, 1998, article in the
Sacramento Bee reported that state
officials said that they would have to
look at the draft Public Health Goal
as a result of findings that there may
not be enough evidence to declare
that MTBE can cause defects. The
EPA Forms Blue-Ribbon Panel
Oi
'n November 30, 1998, EPA Administrator Carol
Browner announced that a blue-ribbon panel had
been formed to review the important issues posed
by the use of MTBE.and other oxygenates in gasoline. The
panelis chaired by Dr. Daniel Greenbaum^ President of
the Health Effects Institute, and Robert Perciasepe, Assis-
tant Administrator for Air and Radiation at U.S. EPA.
^ne Panel will (1) examine the role of oxygenates in
meeting the nation's goal of clean air; (2) evaluate each prod-
uct's efficiency in providing clean air benefits and the existence
of alternatives; (3) assess the behavior of oxygenates in the envi-
ronment; (4) review any known health effects; and (5) compare
the cost of production and use and each product's availability—
both at present and in the future. The panel will also study the
causes of groundwater and drinking water contamination from motor
vehicle fuels, and explore prevention and cleanup technologies for soil
and water. The panel will report to EPA within six months, with rec-
ommendations on how to ensure health protection and continued
improvement in both air and water quality. •
The panel has a Web site at http:llwww.epa.govlomslconsumerlfuelslox.y-
panel/blueribb.htm. The Website includes press announcements, a list of panel
members, announcements,of future meeting, minutes from meetings, and links
to EPA and outside MTBE resource material.
statement came from the Deputy
Director of the OEHHA office.
Earlier, CAL EPA had proposed
a public health goal for MTBE of 14
ppb in drinking water. A subcommit-
tee of OEHHA's Scientific Advisory
Board had voted that studies of
MTBE did not provide enough evi-
dence to conclude that the chemical
causes reproductive or developmen-
tal harm. Another committee could
not muster the votes to endorse the
finding that MTBE is a carcinogen.
The scientific board's findings were
based on studies that looked at the
effect of the chemical on laboratory
animals, mainly from breathing the
vapors.
The Board's conclusions are con-
sistent with those of the U.S. EPA,
which lists MTBE as a "possible
human carcinogen," meaning that
only limited evidence exists that the
agent causes cancer. These findings
are not likely to ease political and
public pressure about the compound.
MTBE will not be listed as a carcino-
gen or as a substance that causes
birth defects or infertility by the State
of California. This decision was
announced by CAL EPA's OEHHA
Proposition 65 Committee during
December policy meetings. The com-
mittee "found insufficient support
for the proposition that MTBE is a
carcinogen and that there was not a
demonstrable majority in favor of
listing within that committee."
James Spagnole, spokesperson
for CAL EPA, said that the science
board's findings "probably would
not change the state's efforts to find
alternatives to MTBE... but it leaves
open the question as to whether we
should replace it with ethanol or for-
mulate a low-pollution gasoline
without any of the oxygenates."
The secondary standard for
MTBE, 5 ppb, became effective Janu-
ary 7,1999. Secondary standards, not
to be exceeded in water supplied to
the public, address "aesthetic" quali-
ties of drinking water supplies. Pri-
mary MCLs include consideration of
health risks, the technical feasibility
of meeting the MCL (in terms of
monitoring and water treatment
requirements), and costs associated
with compliance. MCLs are not to be
exceeded in water supplied to the
public. CAL EPA's Office of Environ-
mental Health Hazard Assessment
(OEHHA) has proposed a Public
Health Goal (PHG) of 47 ppb MTBE
based on noncancer endpoints and
• continued on page 17
tt
-------
LUSTUne Bulletin 31
Investigation and Remediation
TankslPKvTH
by W. David McCaskill
David McCaskill is an environmental engineer with the Maine Department of Environ-
mental Protection. Tanks Down East was once a regular feature o/LUSTLine. It's
been a long hiatus, but Dave's back. As always, we welcome our readers' comments.
A Little Drop'll Do Ya
Maine Study Finds the Presence of MTBE
in Drinking Water Wells to Be Widespread and of
Curious Origin
It was May, the air was hovering
above freezing, mud season was
tailing off, and we were finally
recovering from the after effects of
the "Big Ice Storm of 1998." On top
of that, our UST replacement sched-
ule deadline was a full year ahead of
the rest of the nation—nonconform-
ing tanks were springing out of the
ground like fiddleheads along the
Kennebec River. Things seemed
pretty cushy here in the Land of Lob-
ster. But then, just like New England
weather, there was a sudden atmos-
pheric shift. One day the newspaper
headlines are touting the economic
benefits of the upcoming tourist sea-
son, the next day they're railing
about three separate stories on
MTBE contamination!
The MTBE sites were all "high
profile"—a public drinking-water
well field with low levels of MTBE
but high levels of public anxiety; a
private well belonging to an anxious
resident in that same town, who had
his well tested and reported high lev-
els of MTBE to the press; and a school
well screaming with MTBE.
Needless to say, the "town
fathers" in the affected communities
were concerned about the reputation
of their drinking water, especially
with tourist season just around the
corner. Of course, there was a lot of
finger pointing.
A Viruliferous Dilemma
It was like we were back in those
heady days of LUST 10 years ago.
12
Groundwater contamination was
back in the news in full force. But
now a new four-letter word had been
added to the public lexicon—MTBE
(methyl butyl tertiary ether) and it
was grabbing all the media headlines
and sound bites. (Maine's use of
reformulated gasoline [RFG], which
contains approximately 11 percent
MTBE by volume, was launched in
1995 to meet the Clean Air Act [CAA]
requirements for reducing ozone-
producing automobile exhaust.)
To make a long and sordid story
short, the water district wells were
contaminated with around 0.4 to 4.7
ppb (it doesn't sound like much—but
you tell the townspeople that) of
MTBE from several possible overfills
(approximently 10 gallons each) asso-
ciated with a double-walled UST sys-
tem at a convenience store that had
opened last July. (See LUSTLine # 30-
"Holes in Our UST Systems.") The
MTBE levels around the tank area
reached 7,000 ppb at one point.
And...oh....that new convenience
store/gas station was built just 700 to
1,000 feet from the water district wells.
The contamination found by the
homeowner, who lived two miles
away from the convenience store,
was only the tip of that iceberg; 11
households in that neighborhood had
wells with MTBE levels above 100
ppb and another 13 households were
at risk. The source in this case was a
previously unreported gasoline spill
from a car accident that took place in
early December 1997.
Fifty miles away from these inci-
dents, a school's bedrock well had
been contaminated with 800 ppb of
MTBE from a "mystery" spill. The
location of the spill wasn't a mystery,
however, inasmuch as an 18-inch cir-
cle of dead grass was found near a
bedrock outcrop 300 feet upgradient
of the well. Under that dead grass
was 8 yards of gasoline-contami-
nated soil. The source could have
been a lawnmower or any of the
assorted cars and trucks customarily
parked in the vicinity of the fractured
outcrop.
With three contamination events
in one week, it seemed as though we
were in the midst of an MTBE epi-
demic! The daily news updates and
howls from the public and politicians
challenged our governor to take bold
action. He determined that 1,000
household wells and all of the public
drinking water supplies in the state
should be tested for MTBE.
The Battle Plan
During the summer of 1998, the
Maine Department of Environmental
Protection (DEP), the Bureau of
Health (BH), and the Maine Geologi-
cal Survey developed a plan for
selecting and sampling 1,000 house-
hold drinking-water supplies and 793
of the 830 nontransient public drink-
ing-water supplies for MTBE. Four
other major constitutes of gasoline—
benzene, toluene, ethyl benzene, and
xylene (BTEX)—were tested for as
well.
-------
LUSTLine Bulletin 31
Initially 5,000 rarvd.om.ly selected.
residences were identified and then
matched with census data to deter-
mine if they were on public or private
drinking-water supplies. The list was
pared down to 951 households con-
firmed to be on residential water sup-
pries and also willing to participate.
The sample points were entered into
the state's Geographic Information
System (GIS) so that maps could be
generated.
A consultant was selected to take
the samples. Laboratory analyses
were performed by the Department
of Human Services (DHS). The MTBE
detection level for this project was 0.1
ppb. The health standard for MTBE
in drinking water in Maine is 35 ppb;
the action level for the DEP to
respond with water treatment/reme-
diation at a well is 25 ppb.
Lo and Behold!
Three months later the fieldwork was
completed, and on October 13,1998,
the results were published. A full
copy of the report, The Presence of
MTBE and Other Gasoline Compounds
in Maine's Drinking Water: A Prelimi-
nary Report, is available at http: / /
www.state.me.us / dhs / bob / mtbe.pdf.
Of the household water supplies
sampled, 15.8 percent had MTBE
detected, 1.1 percent at levels exceed-
ing the state's drinking-water stan-
dard of 35 ppb. Other BTEX con-
stituents were rarely found. MTBE
was detected in 16 percent of the
public water supplies tested, but no
samples were above 35 ppb. Low lev-
els of toluene were found in 13.1 per-
cent of the public water supplies. For
both types of water supplies, the con-
taminated wells were found through-
out the state, from the southern,
higher-populated counties, where
RFG is mandated, to the northern,
less-populated areas, where it is not.
As we like to say up here, we found
the stuff from Kittery to Fort Kent!
Based on the study, it is estimated
that somewhere between 1,400 and
5,200 domestic wells could be
expected to have MTBE concentra-
tions above 35 ppb. So far, only a few
new MTBE-contaminated site cases
have dribbled in to our office.
Follow-up data collected by the
state indicate that small spills of
gasoline unrelated to underground
or aboveground fuel tanks can signif-
icantly impact a water resource. The
DEP response staff visited the 14
homes found in the survey with cont-
amination above the drinking water
standard. The findings were some-
what surprising and disturbing
because they went against the com-
mon assumption that MTBE contami-
nation would be associated with
USTs and/or ASTs. Distance from
gasoline tanks was factored into this
study, and no statistically significant
correlation was found. Let's look at a
few choice examples, and I'll think
you'll start to see where the problem
lies.
Tools and Toys
A location with 260 ppb of MTBE
was a rural site located in the south-
ern coastal region. It seems that the
owners of the house found their
backyard bedrock outcrop a conve-
nient place to store old engine parts.
Chances are there may have been
some backyard mechanical work
going on there as well.
A mid-coastal island site had a
hit of 236 ppb, but this time the sus-
pected culprit was not auto repair but
marine outboard motor repair. This
finding is not at all uncommon; the
DEP has found MTBE as well as
waste oil contamination in wells at
other coastal fishing communities.
In another example, 78 ppb was
found at a mid-Maine inland site
where the well was located in a shed
attached to the house. Gas cans and a
snowmobile were stored outside the
shed and only 5 feet from the well. If
that's not good enough reason for
this well to become contaminated,
last year, a truck with five 5-gallon
gas cans in the bed caught fire some
300 to 400 feet upgradient from the
well.
A 51 ppb
liHBHHiwwwBrimtiBriMi "Small Surface
Spill Identified"
was a case where
the gas tank on a
car parked on a
gravel driveway
overlaying a dug
well had leaked
^ for a week! It
""••••••^•••• doesn't stop
there; auto repairs routinely took
place in a garage just 20 feet away
from the well.
These are some of the more
"extreme" cases, but four of the other
sites with high levels of MTBE have
no known source, except that the
wells are in close proximity to the dri-
veway or have gasoline-powered
cars, trucks, or ATVs parked close
by.
• continued on page 14
13
If drips and drabs from backyard
mechanics, leaking gas tanks along
the roadside, or 10-gallon fuel
Delivery overfills can do this much
damage, then Maine says
T_= "enough is enough."
-------
LUSTLine Bulletin 31
I Tanks Down Eastern page 13
The Upshot
So, with the elevated levels of MTBE
in RFC, it appears that a little drop
will do ya. If drips and drabs from
backyard mechanics, leaking gas
tanks along the roadside, or 10-gallon
fuel delivery overfills can do this
much damage, then Maine says
enough is enough. In May, 1998, Gov-
ernor King of Maine notified EPA
Administrator Carol Browner of his
intent to exercise Maine's right to opt
out of the reformulated gasoline pro-
gram but asked EPA to withhold final
action on the request until the drink-
ing water study had been completed.
On February 24, Maine's Board of
Environmental Protection adopted
regulations that will replace RFC after
May 1 with another type of gasoline
sold widely in the South. This fuel,
which is expected to sell for about the
same price as RFC, will have to be
replaced with a lower-volatility fuel
in the summer of 2000 to keep the
state in compliance with the Clean
Air Act. The debate over MTBE, how-
ever, is still not over. Three bills have
been introduced in the legislature that
would ban MTBE altogether or set
other gasoline standards.
DEP's current backlog of petro-
leum-contaminated sites is 300-plus,
so we are not sure how we're going to
skin the MTBE contamination cat if it
indeed comes our way. We have dealt
with MTBE since the mid 1980s in
very low ppb levels at LUST sites.
But, if the MTBE contamination is
actually linked to such activities as
filling and spilling gasoline in peo-
ples' backyard, then die bottom line is
that as long as we are hooked on
gasoline tools and toys, dealing with
this groundwater threat ain't gonna
be easy.
To counter this environmental
threat from gasoline-powered tools
and toys, DEP developed some guid-
ance for homeowners. I've summed
up these little pearls of wisdom in
hopes that they might help other
states. Short of moving your well to a
protected zone far upslope of your
house and driveway, the most that
you can do is to properly manage
gasoline as well as all the other poten-
tially toxic household substances.
These tips are pretty much common
sense but, based on our study, they
are not common enough. •
Tips for Keeping Your Gasoline and Household Chemicals
Out of Your Water Supply
llfilffl^
i as little gasoline around the home as possible. Gasoline is both
sj±^^ua£^fJ2^kjJ2d^di&(H!]!^h filMJthfiffiMlDlilfJEliiJJ?; 25? 9f ihe. most
||gferdan,|erous cfiemieals you will encounter on a regular basis.
|gasoline (and other toxic chemicals) as far away and down-
•pm your well (and your neighbor's well) aspossible
EjiL.'Buy only what you need, and use it up! Most manufacturers do not
ilSSB^iHJiilrfllN^lMlJun'j^li^n^^ ~"-«"""i>" -p™™<*Hf. .-.'. .Ar.-i. -.'•..:~™r^**,*-~t*.-m*** f -„--•-«-•: .up T -- - * • . . »« p ,. ..t »,
r™;si¥:T:7ri/*r, • T™4 rt^ f1sPi.!,,M^*A!w*M"i,'^.'H..wii»«fij, •;,s.• »rvfr,*v '„,:•• '."•'. ,'"'•:& < *fl*--'|i<«>'U. »«~m»«,™«,j«,v~*».l.'*»,*• . *.-, »w,™|-™™. ,™u^, • .,a^.^.«.»,.,. .,..,,. ™™,,,
l«*uater contamlnatlonT Don't j&e i a .Hp-it-yourselfer when it
to changing your car's crankcase oil (which may
iiis* -contain ia small ,m_easurg_pfjyiTRE). Have jt done at an oil
liiii ,; Change shop or service station that recycles the waste oil. *
(Paying $19.95 every S,00d miles is cheap insurance
Iwater contamination.
Remember:
• Buy only what you need.
.!/ Use what you've got.
• Store away from your home and well.
• Watch for leaks.
14
-------
LUSTLine Bulletin 31
Investigation and Remediation
Which Compound Requires More Attorneys:
MIKE or Benzene?
as milligrams per liter (mg/L) or
micrograms per liter (^g/L).
Solubility is very compound-spe-
cific. If you reflect back to your days
in high school or freshman chemistry
(without too much pain, I hope), you
might recall the old saying, "Like dis-
solves like." Water is a polar com-
pound and hydrocarbons are
primarily nonpolar, which means
they are not alike. Consequently,
hydrocarbons, by their nature, are
generally not very soluble in water.
However, where hydrocarbon com-
pounds contain an oxygen molecule
(e.g., ethers), solubilities increase dra-
matically. MTBE is such a compound,
and as you've probably already fig-
ured out, this is why MTBE is much
more soluble in water than benzene.
Now Back to Our Calculation
If we had a pure compound, the
resulting maximum water concentra-
tion would simply be equal to the sol-
ubility. However, for a mixture of
compounds (e.g., gasoline), the con-
centration of each compound in the
by Blayne Hartman
Editor's Note: This is the third in a series of articles reviewing some of the physical!chemical properties that are commonly used in
environmental assessment and remediation. This article will focus on the property of solubility and how to apply it to a common envi-
ronmental problem.
Okay, following the tradition of
the prior two articles, see if you
can answer this quiz:
Consider ajile'lhaljrms gasoline
free produtlllmajpig In contact
with groundwjjjerj&n. terms of
corrective acJtorT^at the site,
which coJppSund will ulti-
mately mvqjvjyliore attorneys:
(a) MTBE
(b) Benzene
(c) Equal attorneys for both
compounds.
(d) Is this another attorney joke?
Hint: If s not a joke. So we're down to
three choices. Another hint: The
answer has something to do with the
length of the contaminant plumes
and whether the groundwater con-
centrations that each compound will
create exceed acceptable levels. To
determine this, we need to make a
comparison of the starting concentra-
tions of these compounds at their
source, relative to acceptable ground-
water concentrations. We begin this
task by looking at the concept of solu-
bility.
Solubility
The solubility of a compound is
defined as the equilibrium concentra-
tion of a compound dissolved in
water when the water is in contact
with the pure compound. The greater
the solubility, the higher the concen-
tration of a compound in the water.
Solubilities have been measured
empirically (i.e., in the laboratory) for
a wide variety of compounds and are
tabulated in many reference books.
They can be expressed in a variety of
different units; most typically they
are expressed in terms of mass of the
compound per volume of water, such
water is equal to its mole fraction in
the mixture multiplied by its individ-
ual solubility:
CW = S*MF
Where:
• Cw is the concentration of a com-
pound in the water,
• S is the solubility of the pure com-
pound, and
• MF is the mole fraction of that
compound in the mixture.
Using this expression, the equi-
librium groundwater concentration
of any compound in gasoline can be
calculated easily. Values for MTBE
and benzene are summarized in
Table 1. Note that the starting con-
centration of MTBE in title groundwa-
ter is 120 times greater than the
starting concentration of benzene (!),
due to a solubility that is more than
20 times higher than that of benzene
and a mole fraction in gasoline that is
5 times higher than that of benzene.
Based on the concentrations
noted in Table 1, you might immedi-
ately conclude that MTBE is defi-
• continued on page 16
15
-------
LUSTLine Bulletin 31
• MTBE or Benzene? from page 15
nitely more of a problem than ben-
zene. But wait—it all depends on
what groundwater concentrations we
eventually have to reach to meet
acceptable, or nonthreatening, levels.
Even though MTBE might start out
120 times higher than benzene, it
doesn't matter if the acceptable levels
for MTBE in groundwater are 120
times greater than those for benzene
(all else being equal).
The crux of the matter is this: By
how much, or by what factor, must
the starting concentrations be
reduced to reach acceptable levels?
Let's define a reduction factor as the
amount that we need to reduce the
starting concentration to reach
acceptable concentrations (starting
concentration divided by the accept-
able concentration). Table 2 summa-
rizes reduction factors for MTBE and
benzene for two different acceptable
groundwater concentrations.
Depending on the acceptable lev-
els chosen, the numbers in Table 2
show that MTBE starting concentra-
tions need to be reduced anywhere
from 24 to 40 times more than ben-
zene. This in itself is a formidable
task, but the situation is exacerbated
when one considers that many of the
natural processes that reduce ground-
water concentrations are thought to
be not nearly as effective for MTBE as
they are for benzene (e.g., biodegra-
dation or sorption onto soils).
Factoring in Distance
Let's try to put some hypothetical
distances to this concept. Using a
very simple groundwater flow model
(Domenico), we can calculate the
expected lengths of the contaminant
plumes in groundwater based on
starting concentrations and accept-
able ending concentrations for vari-
ous groundwater flow rates (Table 3).
As you can see in Table 3, expected
lengths of benzene plumes above
acceptable concentrations are in the
range of hundreds of feet, while
expected lengths of MTBE plumes
are in the range of thousands of feet.
In fact, these calculations indicate
MTBE plumes on the order of two
miles in length!
Fortunately, in the real world,
equilibrium concentrations are rarely
observed at the contaminant source.
Starting concentrations for both MTBE
Table 1 . Summary of relevant physical properties and calculated equilibrium ground-
water concentrations of MTBE and benzene from gasoline. Mole fractions of
the various compounds were selected to represent an "average gasoline"
composition.
S (mg/L) MF
Benzene 1,750 0.025
MTBE 42,000 0.125
Cw (mg/L)
44
5,250
Table 2. Reduction factors (RF) for benzene and MTBE from their equilibrium water
concentrations (Cw) to two acceptable levels (Ca1) and(Ca2).
Benzene
MTBE
Ratio
Cw (mg/L)
44
5,250
Ca1 (mg/L)
0.005
0.015
RF
8,800
350,000
40
Ca2 (mg/L)
0.001
0.005
RF
44,000
1,050,000
24
Table 3. Expected plume lengths for benzene and MTBE starting at equilibrium water
concentrations (Cw) and reaching an acceptable level (C^j. Values assume a
constant source and the daily attenuation rate of benzene taken to be 10 to
100 times greater than that of MTBE.
Benzene
MTBE
Cw (mg/L)
44
5,250
Ca (mg/L)
0.005
0.020
0.1 ft/day
70 to 300
750 to 10,000
1
ft/day
300 to 900
3,000 to 10,000
Table 4. Expected plume lengths for benzene and MTBE starting at water concentra-
tions more commonly observed in groundwater (Cw) and reaching an accept-
able level (Cay Values assume a constant source and the daily attenuation rate
of benzene taken to be 10 to 100 times greater than that of MTBE.
Benzene
MTBE
Cw(mg/L)
10
75
Ca (mg/L)
0.005
0.020
0.1 ft/day
60 to 230
260 to 1,060
1
ft/day
230 to 560
760 to 1,090
and benzene are significantly lower
tihan the equilibrium values, and the
resulting plume lengths, primarily for
MTBE, are significantly shorter.
Table 4 summarizes the calcu-
lated plume lengths using starting
concentrations for benzene and
MTBE equal to the 95 percentile from
Orange County, California, well
data. Note that while the calculated
lengths of the benzene plumes are
nearly the same as in Table 3, the
lengths of the MTBE plumes are sig-
nificantly shorter. While we can all
breathe a sigh of relief that contami-
nant plumes of one or two miles in
length are not common, these calcu-
lations still suggest that MTBE
plumes will be longer than benzene
plumes by two to five times.
The Answer to the Quiz
Longer plumes tend to cross more
properties. The more properties
involved, the more property owners
involved—all with their own attor-
neys. So, based on the values shown
in Tables 3 and 4, the correct answer
is (a): MTBE. The high solubility of
MTBE, along with its relative high
percentage in gasoline, creates the
potential for higher starting concen-
trations in groundwater. Meanwhile,
the low acceptable groundwater con-
centrations for MTBE, coupled with
its poor natural attenuation potential,
yields plume lengths that are signifi-
cantly longer than benzene.
Before you start congratulating
yourself for choosing the right
answer, you need to be aware of
recent studies by the Lawrence Liver-
more National Laboratory (June
1998) and the University of Texas
(1998) that compare measured plume
lengths (not calculated) of BTEX and
16
-------
LUSTLine Bulletin 31
MTBE. In a comparison of data from
63 leaking underground fuel tank
(LUFT) sites in California, the Liver-
more study concludes that the plume
lengths for MTBE and BTEX are
either the same or shorter than ben-
zene! This would suggest that choice
(b) is the correct answer.
How can the plume lengths be
the same, you wonder? Well, so did
the Lawrence Livermore group. Its
answer? The MTBE plumes are
"young" (i.e., relatively recent
releases that haven't reached steady
state) and are still expanding. In
other words, the researchers expect
that the MTBE plumes will increase
in length over the years, much like
we'd expect from our modeling
results. So, choice (a) it is.
But wait. There may be another
explanation. Could it be that, just as
with BTEX plumes, bioactivity is
responsible for controlling the size of
the MTBE plumes? Is it possible that
when the BTEX is no longer avail-
able, the MTBE becomes the pre-
ferred food source (electron donor)?
This conclusion goes against conven-
tional dogma that MTBE is not read-
ily degraded by microorganisms
(MTBE—also known as Many
Things Bioremediate Easier).
The University of Texas paper
suggests that natural attenuation of
MTBE is occurring at rates much
faster than expected. If this is the
case, it may be possible that the rea-
son that the plume lengths for BTEX
and MTBE in the Livermore study
are nearly the same is because MTBE,
like BTEX, is being controlled by bio-
logical activity, not necessarily the
age of the input. Translated: The
MTBE plumes may already be at
maximum length!
So, now whaf s the answer to the
quiz? Well, if you're a modeler, the
answer is (a). If you look at the plume
length data from the recent Liver-
more study, the answer is (b). If you
believe the explanation offered by the
Livermore group (plumes will be
growing), the answer is (a). If you
believe that natural attenuation of
MTBE could be occurring faster than
we think, the answer is (c).
In Truth...
We don't know the right answer. At
present, not enough actual field data
have been collected on MTBE to
really know how it behaves. We still
have much to learn. It may, indeed,
turn out that risk-based decision
making is very appropriate for
MTBE, just as it has been for BTEX in
the past five years. For this reason, it
is crucial that regulatory agencies be
careful before attempting to apply
basin-wide action levels and equally
important that reasonable ground-
water concentrations be 'set, or the
cleanup costs for MTBE contamina-
tion could "break the bank." Fortu-
nately, it may be that the
microorganisms are already working
on the problem. Stay tuned. •
Blayne Hartman is a regular contribu-
tor to LUSTLine. This article is taken
from a presentation on physical!chemi-
cal properties that he gives as part of a
training course on environmental geo-
chemistry. For more information,
either e-mail Blayne directly at
bh@tegenv.com. or check out his Web
page at www. tegenv.com.
The author wishes to thank Curtis
Stanley of Ecjuilon Corporation for
providing and allowing the use of the
reduction factor and plume lengths
calculations.
I MTBE from page 11
14 ppb based on cancer (OEHHA,
1998). The Department of Health Ser-
vices will utilize the PHG to develop
the primary MCL. A primary stan-
dard must be adopted by July 1999.
According to a January 1, 1999,
article in New Fuels and Vehicle
Report, the California State Auditor's
office, in an audit released at the end
of December, asserted that the
Department of Health Services
(DHS) was aware of the MTBE prob-
lem as early as 1990, but did not
establish regulations to test for it
until 1997. It did not adopt interim
emergency regulations even though
it had the authority to do so.
"Health Services, the regional
water boards, and local agencies
have not enforced laws that require
prompt follow-up monitoring for
chemical findings and contaminated
sites, notified the public about chem-
icals found in drinking water, and
managed the cleanup of chemical
contamination of groundwater."
Other Recent Cancer Evaluations of
MTBE
The International Agency on Cancer
Research has found that there are no
data directly showing that MTBE
causes cancer in humans, and that
there is limited evidence that MTBE
is an animal carcinogen. Its overall
assessment was that MTBE is "not
classifiable as to its carcinogenicity to
humans."
The National Toxicology Pro-
gram, administered by the Depart-
ment of Health and Human Services,
has decided against listing MTBE in
the upcoming ninth edition of the
NTP "Report on Carcinogens." This
decision came from the third NTP
group to conduct a review of MTBE
for the ninth edition. Two previous
groups split as to whether to list
MTBE as "reasonably anticipated to
be a human carcinogen." The first
group voted 4-3 to list MTBE, while
the second voted 3-4 against listing it.
The third vote was 5 in favor, 6
opposed, with 1 abstention. Next, the
recommendations of all three review
groups and public comments will be
presented to the NTP Executive
Committee for review and comment,
following which the Director of NTP
receives all four independent recom-
mendations and makes the final deci-
sion to submit the report to the
Secretary for review and approval. •
Pat Ellis is a senior hydrologist with
the Delaware Department of Natural
Resources and Environmental Control,
Underground Storage Tank Branch.
She has been a member of an EPA
MTBE workgroup organized to deter-
mine state information needs, is co-edi-
tor of a quarterly newsletter on MTBE
issued by the MTBE Workgroup of the
Association of State and Territorial
Solid Waste Management Officials
(ASTSWMO), and is a member of the
EPA Blue-Ribbon Panel reviewing the
use of MTBE and other oxygenates in
gasoline. She is the co-author of a pre-
vious article on MTBE in LUSTLine
Bulletin 24. Pat can be reached by e-
mail at vellis@dnrec.state.de.us.
17
-------
LUSTUne Bulletin 31
nicmlly Speaking
by Marcel Moreau
Marcel Moreau is a nationally
^__ recognized petroleum storage specialist '\
pjf/zose column, Tank-nically Speaking,
|r is a regular feature o/LUSTLine. As j
^ always, we welcome your comments and j
^questions. If there are technical issues that'.
L you would like to have Marcel discuss, \
«t -" " / letusKnozu. ' "..'"'' '.'...j
Hmm...If Only Overfill Prevention Worked!
One of the people in the tank
business I really enjoy talking
with has his own business
and has invented a number of UST-
related devices, including vapor
recovery, tank testing, and automatic
line testing equipment. Over the
years, he has introduced some of his
children into his company, including
his son. A few years ago at a trade
show, I asked him where his son
was.
"He's left the company," he said,
"and he's really happy." His son had
been in charge of marketing Stage II
vapor recovery equipment for the
company; he'd since switched to sell-
ing mountain bike gear and apparel.
He loved being in a business where
people actually wanted to buy what
he was selling.
That comment stuck with me. If s
true, UST regulations all too often
force people to buy things they don't
want. Sometimes, the regulations
require things that make business
sense to a forward-thinking person
(e.g., corrosion-protected tanks).
Likewise, ATGs have become a
very popular leak detection choice,
not because buyers think they are
great at finding leaks (as UST inspec-
tors know, the leak detection function
is frequently overlooked), but
because the ATG provides more con-
venient and more accurate inventory
data—a business benefit.
But sometimes rules seem to
require frills that make no economic
sense. "Why, when I bury a 10,000-
gallon tank, can I use only 9,000 gal-
lons of it? Why am I wasting 1,000
gallons of storage capacity?" asks the
tank owner. If the buyer perceives no
business benefit to the required
device, chances are he or she will
invest in the cheapest choice that
meets the regulations.
The problem with overfill pre-
vention is that the buyer (the tank
owner) is not the user (the tank truck
Operator vigilance during delivery is critical to spill prevention.
driver). The buyer, seeing no opera-
tional benefit to one device over
another, chooses the cheapest, typi-
cally the float vent valve. If the tank
truck driver were making the choice,
how many drivers do you think
would purchase a device that would
shower them in gasoline if they had
the misfortune of trying to deliver too
much fuel into a tank?
Overfill prevention is not work-
ing because the hardware is not pur-
chased by the end user, and as a
result, the available hardware is not
very user-friendly. Float vent valves
can be a hazard to a delivery person's
health, drop tube devices slow deliv-
eries down, and alarms are a nui-
sance. Tank truck drivers are
motivated to avoid, ignore, or other- •
wise defeat overfill prevention hard-
ware that, in an ideal world, should
help them do their job rather than get
in fiie way.
So let's look at ways in which
existing overfill prevention hardware
can be neutralized and then describe
what a tank truck driver's "dream
device" for overfill prevention might
look like.
The Light Dawns
It was some years ago in Texas. I had
taken a class into the field to conduct
UST compliance inspections. At one
of our stops, I remember being some-
what puzzled at the sight of petro-
leum product within a foot or so of
the top of an underground tank fill
pipe. I looked over the paperwork for
the facility and verified that an over-
fill prevention device was in place. I
then checked with the facility opera-
tor, a well-intentioned gentleman
who had only recently assumed
responsibility for the storage system.
He said that there had been a deliv-
ery into the tank the day before.
Wanting to know more about his
storage system, the facility operator
had spoken to the delivery person.
The driver had mentioned a "pres-
sure relief valve" adjacent to the fill
pipe that was used to relieve the
pressure in the tank to allow the tank
to be filled completely.
Hearing this, I scratched my
head for a few minutes, and then I
knew...the light bulb in my mind
shone brightly. Here's what was
18
-------
LUSTLine Bulletin 31
going oxv. The facility had a ball float
valve overfill prevention device. By
opening the drain valve adjacent to
the fill pipe in the spill containment
manhole, the tank could be vented
through the drain mechanism,
bypassing the float vent valve and
allowing the delivery to continue.
(See LUSTLine #21, "What Every
Tank Owner Should Know About
Overfill Prevention.") It was then I
realized that for the float vent valve
to work, the tank top had to be air-
tight, and that, in fact, there might be
many cases where this requirement
might not be met.
The Case of the Bypassed
Ball
A few weeks ago, while reviewing
delivery records associated with a
spill incident, I noticed some num-
bers that told a similar story to the
one mentioned above. The delivery
records included before- and after-
delivery stick readings that the driver
had made. The post-delivery liquid
level readings included numbers like
112 inches and 98 inches; the ball
float valve in the tank should have
stopped the delivery at around 78
inches. Because the tank was only 92
inches in diameter, the records
pointed to several instances where
the ball float had been bypassed and
the tank was filled right up into the
fill pipe. This circumstance would
almost certainly have resulted in a
spill of the delivery hose contents—
in this case, it also probably caused or
at least contributed to a million-dol-
lar cleanup.
The Case of the Missing Ball
I have also heard stories from
installers about ball float valves that
are found to be missing their ball.
Examination reveals that the cage
that normally holds the ball appears
to have been subjected to some phys-
ical abuse. The likely scenario is this:
Ball float valves are often installed
directly below the Stage I vapor
recovery riser. When delivery drivers
clamp onto the vapor recovery fitting
with their hose and adapter, they are,
in effect, attaching a 10-foot-long
wrench.
By kicking the hose counterclock-
wise, they can loosen the vapor
recovery adapter sufficiently to be
able to unscrew it by hand. Then they
can insert their gauge stick down the
Stage I riser and pound on the ball of
the float vent valve until it drops out
of the cage and into the tank. The
Stage I vapor recovery adapter is
replaced, and no one is the wiser.
Perhaps this scenario is initiated
by the float vent valve sticking in the
dosed position so that the driver can-
not even begin to make his or her
delivery. In any case, the driver will
no longer have the bother of a float
vent valve that reduces the capacity
of the tank or that causes him or her
to take a hosing in product.
The Case of the Broken Stick
Drop tube devices are also a general
nuisance in the eyes of most delivery
personnel. At best, they slow down
the product flow by restricting the
working diameter of the drop tube.
At worst, they malfunction so that
they close even when the tank is
nearly empty and product cannot be
delivered into the tank at all.
In between, they interfere with
taking the before- and after-delivery
stick readings. As with the ball float,
the frustrated driver can use the
delivery hose and delivery elbow as a
pipe wrench to loosen the fill
adapter, remove the drop tube, and
make the delivery. Other drivers
merely break off the top of a gauge
stick and drop it down the fill pipe,
propping the valve of the drop tube
device open so that it cannot close.
This slows down the delivery some-
what, but at least allows the delivery
to occur.
The Case of the Deaf Driver
Alarms, of course, can simply be
ignored.
Why Overfill Prevention
Doesn't Work
The point I'm making with all these
case examples is that the overfill tech-
nologies that by now should be in
universal use at all active motor fuel
facilities are not user-friendly and
can easily be bypassed or overridden.
The long-term result is that tragedies
such as the one that happened in Mis-
sissippi (see LUSTLine #30, "Inferno
Kills Five and Critically Injures
One...") or contamination cases such
as the one described in my last Tank-
nically Speaking article (LUSTLine
#30, "The Holes in Our UST Sys-
tems") will continue to occur.
How Can We Make Overfill
Prevention Work?
While acknowledging that we have
come a long way in the implementa-
tion of effective UST technology in
the last decade, we must also
acknowledge that all is not perfect
and that there is room for improve-
ment. So in the spirit of Total Quality
Management and continuous
improvement in which the federal
UST program was born, here is my
vision of what a better overfill pre-
• continued on page 20
Determining the ullage in a tank prior to delivery is critical to preventing overfill incidents.
19
-------
LUSTLiite Bulletin 31
• Tank-nically Speaking/? DHZ page 19
vention approach might look like:
• An overfill prevention device
MUST be user-friendly. It should
improve, rather than interfere
with, the speed and convenience
of making a delivery.
• The overfill prevention device
should be part of the truck, not
the tank. Overfill prevention that
is based on the truck will allow the
driver to deal with deliveries in a
consistent and uniform way,
avoiding any traps for the unwary
driver. Right now, a driver does
not necessarily know whether he
or she is dealing with a float vent
valve, a drop tube device, an
alarm system, or some combina-
tion of these. The driver may be
able to see a drop tube device, but
it is not unusual for installers to
put in both a float vent valve and a
drop tube device. This could result
in a most unpleasant surprise to
the delivery driver if the float vent
valve closes before the drop tube
device and the driver assumes that
he or she is dealing with a drop
tube device rather than a float vent
valve. (See LUSTLine #21, "What
Every Tank Owner Should Know
about Overfill Prevention.") Hav-
ing the overfill device on the truck
should also have economic advan-
tages, because there are many
fewer tank trucks in this country
than there are tanks.
• The overfill prevention system
should be bypass- and override-
proof. There should be no way for
the driver to continue to deliver
product to a tank that is nearly
full.
What I envision is something like
this: Imagine a small box mounted on
the tank truck, conveniently located
relative to the valves where the deliv-
ery hose is connected. This box is able
to control the air-operated valve that
is already present in tank trucks in the
bottom of each compartment. The box
on the tanker is able to communicate
with a small transmitter located in the
underground tank spill containment
manhole. The transmitter would be
connected to an inexpensive level
sensor located inside the tank.
The control box on the truck
would receive the tank-level informa-
tion from the transmitter and display
the volume of fuel presently in the
tank. This would save the driver the
time required to stick the tank, calcu-
late the volume in the tank and the
ullage, and record this information.
This feature alone would endear this
device to most drivers. The remain-
ing capacity in the tank could also be
displayed so the driver would know
right away whether the volume of
fuel in the truck will fit in the tank.
As the fuel flows into the tank, the
volume of product in the tank and the
ullage remaining would be displayed
in real time. Conspicuous green, yel-
low, and red lights could be incorpo-
rated into the control box so the driver
would know when everything was
OK (green), when the tank was
approaching the full level (yellow),
and when the valve had closed and
product flow was stopped (red). This
way, the driver would be alerted
immediately when product flow stops
and would waste no time waiting
around while no product was flowing
through the delivery hose. When the
drop is completed, the driver would
insert the paperwork into a slot in the
control box on the truck where a little
date/time/volume stamper would
print the initial and ending volumes in
the tank and the amount of fuel deliv-
ered. Again, the driver would not
need to stick the tank after the deliv-
ery and record the results.
The German Approach
A similar, but not so sophisticated
approach has been used for many
years in Germany. The German
approach requires that the driver
make an electrical connection as well
as a hose connection between the
truck and the tank so as to make a
delivery. A high-level switch in the
tank then closes a valve in the tanker
when the tank is nearly full. I envi-
sion updating this technology by
adding some wireless communica-
tion between the tank and the truck,
so the driver has no additional work,
as well as providing inexpensive
level sensing in addition to valve
actuation.
First and Foremost:
Reliability, Safety, and
Environmental Protection
The system I envision has the follow-
ing advantages:
• It makes the delivery operation
easier for the driver, because he or
she would not need to stick the
tank;
• It does not slow down the delivery
by restricting the diameter of the
drop tube;
• It makes draining of the hose after
the overfill device has operated as
fast as it used to be;
• From a public safety perspective,
spilled fuel or the release flamma-
ble vapors during a delivery
would be dramatically reduced,
because this technique does not
rely on the tank top being air-tight
to work;
• The threat of "blow back" of fuel
onto the driver is eliminated along
with the need to "relieve the pres-
sure" by using the drain mecha-
nism of the spill containment
manhole; and
• From an environmental perspec-
tive, reliable overfill prevention
that drivers want to use rather
than bypass would result in better
protection of the environment.
The Reality of Overfill
Prevention
As I see it, a major marketing obstacle
for this solution is that it rests with
both the tank and the truck. In most
cases, the tank and the truck belong
to different people, so this solution
would require an ideological and
financial investment on the part of
both parties. Also, this solution
involves the truck owner in the
underground tank overfill business,
an area that regulations have placed
in the domain of the tank owner. On
the other hand, the technology has
the potential to make delivery mis-
takes much less frequent, thereby,
perhaps, lowering insurance rates for
both UST owners and fuel delivery
companies. The technology should
also shave a minute or two off the
time required to make a delivery,
which could create a financial incen-
tive to invest in the technology.
Of course the biggest obstacle to
this technology right now is that it
doesn't yet exist—at least as far as I
know. •
20
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LUSTLine Bulletin 31
We received this letter [with edits] from
Richard Levtmdowski, Deputy State Fire
Marshal, Montana State Fire Marshal's Bureau,
regarding our article "Inferno Kills Five and Critically
Injures One in Mississippi" in LUSTLine #30.
F""r~Ihe article reinforces exactly what is observed too
I often in the State of Montana and, I can assume,
JL what occurs quite often in many other states. The
saddest part of this entire matter is that these types of
"accidents" can be prevented.
[Mr. Kevin Henderson's (Mississippi DEQ)] statement
that, "as far as he knows, in most states, the act of making
fuel delivery is not regulated," requires clarification.
I would like to advise any state that adopts and
enforces any of the nationally recognized fire codes, such
as the Uniform Fire Code (UFC) here in Montana, that they
do have "regulation" on fuel delivery. Let me explain.
1994 Edition of the Uniform Fire Code
• Section 7904.5 Loading and Unloading of Tank
Vehicles and Tank Cars
• 7904.5.4.6 Attendant required. The operator or
other competent person shall be in attendance at
all times while a tank vehicle or tank car is dis-
charging cargo. When practical, the tank vehicle
or tank car shall be positioned such that the oper-
ating controls and the discharging end of the
hoses are both in view of the operator or other
competent person.
I interpret this to mean that the driver/delivery per-
son is to remain in the "immediate vicinity" of the vehicle
anytime he or she is discharging the cargo. Here in Mon-
tana, for some unknown reason, drivers are under the
impression that they can be 25 feet away from the vehicle.
I continually ask, "Where in this section of the UFC does it
say the driver can be 25 feet from the vehicle?" The code
makes no reference to any specific distance. This is further
confirmed by the following section of the UFC.
• 7904.6.3.2 Leaving vehicle unattended. The
driver, operator, or attendant of a tank vehicle
shall not leave the vehicle while it is being filled or
discharged. The delivery hose, when attached to a
tank vehicle, shall be considered to be part of a
tank vehicle.
I see drivers sitting in the cab of the transport truck. I
can assume they are completing thir paperwork. On occa-
sion, they may be sitting in the cab smoking a cigarette
(another violation of the fire codes). In many cases, the cab
is located more than 25 feet (the "magical distance" that
someone has conjured up) from the discharge end of the
hose. Granted, "the driver has not left the vehicle"—how-
ever, is he or she within this magical 25 feet or within
immediate control of the valves?
I have researched many back issues of fire codes, from
the UFC to the National Fire Prevention Association
(NFPA), and can find no reference to the 25-foot number.
As stated above, I interpret the UFC to say that the dri-
ver/operator shall remain in the immediate vicinity of the
vehicle while cargo is being discharged. This means he or
she shall be right at the control valves on the vehicle so
that in case something happens, as in the Mississippi inci-
dent, the valves can be closed immediately. The paper-
work part of the job, the smoke break, the bathroom
break, or whatever can be taken care of before or after the
delivery is completed.
This leads to the next issue that needs to be addressed:
training. Many, if not all, of these overfill incidents can be
prevented If employers would properly train their
employees. The U.S. Department of Transportation (DOT)
and many state DOTs require training under the "Trans-
portation of Hazardous Materials" laws. Is this training
being provided? Who is responsible for providing it?
Some may think I'm "hard-nosed" about this subject.
That may be. I honestly feel that two things need to take
place in this country to avert this type of unnecessary loss
of life and property (property can be replaced—life cannot):
1. Owners of the companies who hire employees to
deliver these hazardous materials and who fail to
properly train their employees should be fined a mini-
mum of $250,000 per incident and spend a minimum
of six months in jail. The fine monies, after deducting
court costs, should be distributed to the "next of kin"
of any victims of an accident.
2. Employees, who through their negligence, cause such
an incident should be fined $50,000 per incident. If a
life is lost as a result of the incident, the employee
should be charged with negligent homicide in addition
to the fine. If the employee's life is lost (and we experi-
enced one such incident in Montana in July 1998), the
owner of the company should be charged with negli-
gent homicide.
Do you think such penalties would get the attention these
matters deserve?
Continuing on with the UFC requirements, under
while discharging cargo we have the following:
• 7904.6.7 Fire protection. Tank vehicles shall be
equipped with a fire extinguisher with a mini-
mum classification of 2-A, 20-B:C. During unload-
ing of the tank vehicle, the fire extinguisher shall
be out of the carrying device on the vehicle and
shall be 15 feet or more from the unloading
valves.
• 7904.5.4.7 Chock blocks. At least two chock
blocks not less than 5 inches by 5 inches by 12
inches in size and dished to fit the contour of tires
shall be used during unloading operations of
vehicles.
How often are these requirements observed?
Most states that adopt fire codes should have these or
similar requirements in place. Check with your state fire
marshal's office to find out what codes are in place and
who is charged with enforcing them. •
The foregoing text is the opinion of the writer and does not
necessarily reflect the views of the Montana State Fire Mar-
shal or the Montana Department of Justice.
-------
LUSTLinc Bulletin 31
State Cleanup Funds
Fraud and Abuse—The Audit Tool
By Cynthia T. Williams and
Robert S. Cohen
lit the last issue o/LUSTLine, we discussed
how Medicare tools for fraud and abuse detec-
tion/prevention can apply to the state cleanup
fund scenario ("What State Cleanup Funds
Can Learn from Medicare"). One of the more
powerful tools is the "post audit." Recognizing
that the term "audit" can send shivers down
the spine of everyone from taxpayers to gov-
ernment contractors, roe humbly submit that a
properly executed audit is, in fact, a powerful
and fair cost-containment tool. Allow us to
explain.
Imagine coming home one
evening to find your home has
burned to the ground. Fortu-
nately you have insurance. You
rebuild by hiring contractors from
the yellow pages. You send the
invoices to the insurance company,
which promptly pays the lot of them.
Sound unreal? It should, inas-
much as insurance companies typi-
cally have preferred vendors,
adjusters (preapproval), and various
other mechanisms in place to control
costs and prevent fraud and abuse.
Insurance companies also have audi-
tors to verify that their cost control is
effective.
In the worst-case scenario, trust
funds are like an insurance company
without cost control. In the best case,
they are like an insurance company
without internal auditors. The insol-
vency crises that many trust funds
have experienced or are experiencing
have given renewed focus to fraud
and abuse. While regulators and leg-
islators continue to share war stories
about the perpetration of fraud and
abuse within their state funds, it is
primarily done within the context of
fitture prevention of such activities.
To understand and ultimately
prevent such abuse, each state must
take seriously the concept of auditing
trust funds so as to obtain valuable
information that will provide insight
and further enhance the current pro-
gram. The lesson from the Medicare
analogy is that to achieve prevention
today, states must take a "look back"
or detect what happened in the past,
even if the present program has
changed. Neither total responsibility
for contracting cleanups nor preap-
proval is sufficient to prevent fraud
and abuse.
Desk Review/Approval
Process versus Post Audits
The post audit is distinguished from
the normal re view/approval process
of claims or invoices in the following
way: The post audit is a comprehen-
sive process that allows auditors to
examine in greater detail the transac-
tion^) involved within the documen-
tation submitted. This usually gives
auditors a greater freedom to exam-
ine and correlate a particular contrac-
tor's efforts at many sites. For
example, in Florida, a recent audit of
all of the projects of a particular con-
tractor during a specific time period
showed days with more than 24
hours billed by individuals. This is a
clear pattern of fraud.
Of course, auditing each and
every claim submitted to a state
cleanup fund would not be cost-
effective and would slow down
progress, defeating the overriding
purpose of the fund, which is to clean
up the environment. One of the most
powerful cost-containment strategies
that a state fund program can
develop is a carefully designed desk
review/ approval process coupled
with a comprehensive post-audit
process for selected high-risk claims.
The Internal Revenue Service has
relied on this strategy for many
years. This type of audit is directed at
the beneficiary of the trust fund as
opposed to the internal audit of the
fund agency.
Benefits of Post Audits
The post audit is an integral and nec-
essary part of the claims administra-
tion process if state funds are to run
according to sound business princi-
ples. Some of the benefits of adopting
a post audit process include:
• Prevention - The post audit iden-
tifies those contractors who abuse
the trust fund. It provides signifi-
cant criteria for determining the
22
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LUSTLine Bulletin 31
level of effort for the initial review
and identifies those parties who
do not play by the rules. State
funds can then use this evidence
to take appropriate action against
the contractor to prevent further
abuse (e.g., remove it from the
fund's contractor pool). Again,
this is an IRS technique that is fair
and works.
• Deterrence - As your fund's repu-
tation for conducting fair and
thorough post audits becomes
known throughout the industry,
honest contractors will be extra
careful and others may be
deterred from pursuing work in
your state or other states.
• Cost recovery actions - The post
audit provides state fund attor-
neys with evidence about how
much and what should be recov-
ered if they choose to take action
against those parties whose claims
are found to contain fraud and/or
abuse.
A Reality Check
The rules and regulations dealing
with audits are often vague and pro-
vide little direction or authority for
post audits. Many states lack proce-
dures to implement post audits. Even
on a good day, staffing within many
state agencies is hardly adequate to
administer the fund programs.
Therefore, the ability to perform post
or concurrent audits on claims not
yet paid is often set aside as not
"cost-effective" or necessary.
But, as programs evolve with
unit rates, preapproval provisions,
and so on, the obligation to taxpayers
to go back and find fraud and abuse
does not diminish. Audits can, in
fact, be done either by the state regu-
latory agency's own Inspector Gen-
eral's Office or through outsourcing
independent audit teams such as cer-
tified public accountants. All govern-
ment regulatory agencies and most
private industry have requirements
and standards for post audits. The
procedures are well defined and rou-
tinely implemented.
The Florida Example
The Florida legislature is one of the
few in the country to have mandated
post audits. This action was initiated
as a result of fraudulent claims that
were submitted to the trust fund for
restoration work never performed.
Furthermore, documented fraudu-
lent invoicing, carried out with
the cooperation of a government
employee, was discovered. Fortu-
nately, the fraud was found-before
the $12 million in reimbursement
claims were paid.
In 1997, the Florida legislature
directed the Auditor General of the
state to contract with certified public
accounting firms to perform post
audits. Although Florida's audit pro-
gram has been operating for only one
year, there are many valuable lessons
other states may wish to embrace
regarding the post-audit concept.
ispr ' - * r
One of the most powerful cost-
Containment strategies that a state
fund program can develop is a
Carefully designed desk review/
Approval process coupled with a
omprehensive post-audit process
T jtof selected high-risk claims.
What Works?
The key to the post-audit criteria is a
well-developed claims selection
process. Since all claims cannot be
audited, criteria must be developed
to determine which claims have a
greater likelihood of abuse. This may
be accompanied by random audits to
validate the selection process.
The IRS has developed selection
criteria and "profiles" for determin-
ing whose income tax returns should
be audited. Similar profiles are
needed for the state funds so that
they can zero in on the claims most
likely to yield evidence of fraud or
abuse. This selection process is not
always obvious. In Florida, it took
one full year to settle on viable crite-
ria. Based on this experience, let's
look at a selection process that has
broad application to state funds:
• Assemble a team of informed
and involved parties who will
define the selection process by
providing collaborative knowl-
edge of state regulations, guide-
lines, and procedures. At a
minimum, this team should
include:
• The Fund Administrator and
other appropriate staff;
• Members of the Office of Gen-
eral Counsel within the regula-
tory agency who will have the
task of referring perpetrators
for prosecution and initiating
cost-recovery actions;
• Members of the Inspector Gen-
eral's Office within that regula-
tory agency- who will be
involved in the audit process;
and
• Law enforcement officials in
the event that fraud is discov-
ered during the process.
Establish profiles of risk. Simply
put: The team should determine
where weaknesses in the regula-
tions, rules, and guidelines may
have allowed potential abusers to
take advantage of the system
(both in the past and currently).
Once these "weak spots" have
been identified, establish profiles
of those parties who might have
taken advantage of the situation.
Identify the resources for data
within the agency. Unfortu-
nately, many states (including
Florida) have found that some of
the most useful information in the
audit process had not been col-
lected historically. New tools
must be developed to aid in this
process. In Florida, the state's
database of claims did not track
the names of the environmental
contractors. With this dearth of
information, once a perpetrator of
waste, fraud, or abuse is found,
the state has difficulty in deter-
mining the extent of the problem.
Ensure that an audit program
encompasses all risk areas, such
as scope of work, actual perfor-
mance of task, and 'proper
documentation of efforts. Your
process should allow specific
claim audits to cease when the
level of risk is known to decrease.
For example, a claim that appears
imminently reasonable in terms of
bottom-line costs for the scope of
work and level of documentation
should not be subject to a full
audit.
Send program-specific knowl-
edgeable auditors into the field
to audit the 'transaction' itself.
In Florida, as in many other states,
• continued on page 24
-------
LUSTLine Bulletin 31
I Fraud and Abuse from page 23
parties other than those who are
"true responsible parties" are per-
mitted to submit claims to the
fund, including environmental
cleanup firms and investors.
What Doesn't Work?
• Underemphasizing the selection
process. One of the fastest ways
states can send good money chas-
ing bad is by not putting enough
effort into the selection process.
Unnecessary time and resources
may be spent focusing on audit
procedures and not on who gets
audited.
• Performing the same procedures
on every claim or auditee. Vary-
ing levels of audits should be uti-
lized so that audit dollars are
spent effectively. Audit proce-
dures (and programs) that make it
necessary to carry audits to com-
pletion without being able to
"cease" when it becomes obvious
that the risk of waste, abuse, and
fraud is low are ineffective. The
auditing team needs to be able to
do some "partial audits" and stop
when no "findings" arise or con-
tinue on to "full audits" when
findings are found.
• Making direct payment of claims
to the contractor. Claims in which
the responsible party is out of the
loop have proved to contain
higher-than-average incidents of
fraud and abuse. The responsible
party's review and interaction
with the contractor have the bene-
fit of another review of costs (in
many cases). In instances where
the responsible party is not sophis-
ticated enough to contract for
environmental cleanup (the mom-
and-pop stations), they are also
not sophisticated enough to select
a contractor. In these cases, it is
better for the state to set up a
mechanism to contract directly
with the contractor. Alternatively,
these sites should be considered
high risk and flagged for post
audit.
The Myth Behind
PreApproval
Preapproval of work scope and cost
should not be viewed as a stand-
'pproval of work scope and cost
- -
'pne tool for prevention of
'iSS,!^
alone tool for prevention of fraud
and abuse. While the concept of
preapproving work scopes and costs
is a step in the right direction, state
agencies must realize that preap-
proval in and of itself will not combat
waste, abuse, and fraud. Some of the
same perpetrators will be involved
with the preapproval program.
Some truths regarding preapproval:
• Setting contractual maximums or
unit rates for certain tasks should
be viewed as a cost-control mea-
sure only. States must still utilize
the post-audit process to ensure
that (a) the work was actually per-
formed, and (b) the work was per-
formed in the number of hours the
contractor claimed in his or her
invoices and by the personnel and
level of experience agreed upon. A
common abuse of preapproval is
when the contractor proposes a
scope of work using senior person-
nel and substitutes junior staff for
the assignment.
• In the ever-changing environmen-
tal technologies cleanup field, it
seems contradictory to believe that
the level of effort and costs associ-
ated with petroleum cleanup work
can remain static while more effi-
cient cleanup methods are devel-
oped. For states to realize the
benefits of reduced costs associ-
ated with new technologies, post
and concurrent audits can be uti-
lized to gain this valuable informa-
tion.
• Pay for Performance (PfP) is a
powerful tool for controlling costs
and accountability. Yet, it is also
subject to abuse. The Florida PfP
program allows for an audit of all
records of the completed job. Since
the PfP payment is based on
results rather than activities, the
job is much simpler and more con-
clusive to audit than work associ-
ated with traditional remedial
reimbursement approaches. The
audit assures that payments are
made only for actual cleanups.
Simply Put...
Fraud and abuse have driven many
trust funds to the brink of insolvency.
The public trust requires sound busi-
ness practices, which include profes-
sional audits performed by qualified
teams of certified public accountants
and professional engineers/geolo-
gists. Post audits will deter abuse,
target fraudulent claims, and allow
the gathering of necessary data to
encourage a dynamic program of cost
control.
One of the most undercapitalized
industries in the country is the envi-
ronmental cleanup business. This
naturally invites creative schemes to
take advantage of the state funds. A
relatively small expenditure for the
sound business practice of audits has
the potential to result in significant
preservation of the integrity of the
trust fund. •
Cynthia T. Williams has been an asso-
ciate with the CPAfirm of Barnes,
VanVorst, Reposa, Gosnell, &
Indowsky for five years. Her area of
expertise has included audits of envi-
ronmental cleanup claims and contrac-
tors for over nine years. She is also the
President of Environmental Support
Specialties, Inc., headquartered in
Deerfield Beach, Florida, with regional
offices in Boston, Massachusetts, and
Atlanta, Georgia. The firm specializes
in all aspects of state cleanup trust
fund issues. In addition, Cindy is cur-
rently serving as Executive Director of
the Southern Environmental Business
Council, where she has also served on
its Board of Directors for three years.
For more information, contact Cindy
in Deerfield Beach, Florida at:
cwilliams@envirosupport. com
or (954) 698-6111.
Robert S. Cohen, B.S., M.S., is a pro-
fessional geologist specializing in
LUST cost-containment issues. He is a
consultant in both the public and pri-
vate sectors. From the private sector in
Florida, he proposed and implemented
the Florida Department of Environ-
mental Protection's (FDEP's) first Pay
for Performance cleanup. As an advi-
sor to the FDEP, Bob designed the PfP
pilot program. Currently, he is con-
ducting PfP workshops on behalf of the
EPA Office of Underground Storage
Tanks. For more information, contact
Bob in Gainesville, Florida at:
bobcohen@ivs.edu or (352) 337-2600.
24
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LUSTLine Bulletin 31
Major Oil Company Found Liable as UST Operator
Indiana Supreme Court Picks Up Where
Appeals Court Left Off
by Mary-Ellen Kendall
~j~n 1997, the Indiana Court of Appeals found two major oil companies liable as
I underground storage tank (UST) operators for a petroleum release that contami-
-*- nated residential drinking water wells. (See a summary of this decision in LUST-
Line #27J This case, Shell Oil Co. v. Meyer, 687 N.E.Zd 383 (Ind. App. 1997), was
unique because it was the first time that a court had held a major oil company liable for
a release that occurred at an independently owned gas station. ,
The court found Shell Oil Company and Union Oil Company liable as UST oper-
ators under Indiana's Underground Storage Tank Act ("USTA"), awarded the
landowners with contaminated wells $2.7 million plus attorney's fees, and allocated
the damages between Shell Oil (70%) and Union Oil (30%). The oil companies
appealed the case to the Indiana Supreme Court, which issued its decision at the end of
1998 (Shell Oil Co.v. Meyer, No. 79S04-09801-CV-043COU [Ind. Dec. 30,1998].)
First, Some Background
The appeals court's decision summa-
rized the history of USTs in the
United States and described the
changes that occurred immediately
before the industry became subject to
the federal UST regulation in 1988.
Before the regulation, it was standard
practice for oil companies to retain
ownership of USTs and to maintain
control over the station's appearance
and products.
The preregulation USTs were
constructed of bare steel, which cor-
roded over time and caused petro-
leum releases. The oil companies
were aware of the potential liability
for releases to occur and began
implementing leak prevention tech-
nology in the mid-1980s. By installing
corrosion-resistant UST systems and
training employees to prevent,
detect, and respond to releases, the
oil companies were able to reduce
their exposure as responsible parties
for future environmental problems.
Another method that the oil com-
panies used to insulate themselves
from future liability was to sell exist-
ing USTs to independent station
owners for $1 per tank. The appeals
court recognized that the sale of an
UST to an independent station owner
effectively transferred liability in
most cases, but it carved out an
exception in any case where the oil
companies retained the authority to
control a facility,' whether or not they
actually exercised that authority.
For example, if an oil company
supplied product to an independent
and required the station to display
the company's brand or logo on signs
and employee uniforms, the court
said the company was an UST opera-
tor based on the definition of "opera-
tor" in the federal UST regulation. As
an operator, the oil company
remained liable for releases from
USTs it no longer owned. The court
reasoned that the major oil compa-
nies were liable because:
A business should bear its own
costs, burdens, and expenses of
operation, and these should be
distributed by means of the
price of the resulting product
and not shifted, particularly, to
small neighboring property
owners for them to bear alone.
We can understand no sensible
or reasonable principle of law
for shifting such expense or loss
to persons who are not involved
in such business ventures for
profit. (Shell Oil at 387.)
To Be an "Operator"
As noted earlier, in the lower court
decision, operator liability for USTs
was imposed on major oil companies
if they had the authority to control a
facility, whether or not they exercised
that authority. The Supreme Court
rejected that rationale but still found
one of the companies, Shell Oil, liable
for the groundwater contamination
resulting from the release from the
USTs at the gas station that was
owned by Mr. Smith.
The Supreme Court disagreed
with the trial court's conclusion that,
because the oil companies retained
the ability to control the USTs
through their franchise distribution
system, the companies were liable as
UST operators. The court held that
operator liability did not exist unless
the oil companies did something in
addition to supplying gasoline to the
distribution system.
The additional activities had to
be directly related to the daily opera-
tion of the USTs. The court said that
operator liability depends on: (1)
what constituted the daily operation
of the tanks, (2) who did these things,
(3) in what capacity that person was
--Because the independent station
^perator was responsible for at least
S: two of the daily activities, he was
agUST operator, liable for
IL releases from those USTs.
acting, and (4) who was responsible
for that person's actions in that
capacity. When applying this test, the
questions must be answered in light
of the industry standards at the time.
The court noted that prior to the
introduction of more sophisticated
pollution prevention systems in the
late 1980s, two of the major activities
associated with UST operation were
filling the UST and "sticking" the
tank to determine product levels. In
this case, the independent station
operator (Mr. Smith) was a commis-
sioned driver for Shell Oil from 1946
to 1963. As part of his responsibili-
ties, he was required to fill the tank
and to monitor the product levels by
sticking the tank.
The definition of the term "oper-
ator" in the federal and state statute
is sufficiently broad to permit more
than one person to be an operator of a
• continued on page 26
25
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LUSTUne Bulletin 31
• Major Oil Company Found Liable
from page 25
tank. The court said that the law did
not require that a person perform all
of the daily activities necessary to
operate an UST before operator liabil-
ity would be imposed. Because the
independent station operator was
responsible for at least two of the
daily activities, he was deemed an
UST operator, liable for releases from
those USTs.
The court extended operator lia-
bility to Shell Oil, because the driver
was acting on Shell Oil's behalf in dis-
pensing the gas and measuring the
contents of the tanks. "This aspect of
operating the tanks was an integral
part of Smith's role as a 'commis-
sioned agent' for Shell. He could not
carry out his role for Shell without
also performing these functions that
are part of the operation of the tanks."
Or Not to Be an "Operator"
Conversely, the court did not find
Union Oil to be an UST operator
because it merely supplied gas to the
independent station owner. Once the
sale occurred, Union Oil did not con-
trol any other activities associated
with the daily operation of tihe USTs.
The oil companies had argued
that even if the independent station
owner was liable as an operator, the
liability could not be transferred to
the oil company under established
legal doctrines. The court disagreed
and found that an independent con-
tractor can create liability for a princi-
pal if: (1) the contract requires
performance of intrinsically danger-
ous work; (2) a party is by law or con-
tract charged with a specific duty; (3)
the act will create a nuisance; (4) the
act will probably cause injury to oth-
ers unless due caution is taken to
avoid the harm; or (5) the act to be
performed is illegal.
In holding Shell Oil liable, the
court said that putting an abnormally
dangerous product into a tank that has
the potential to, and does actually, leak
would create a nuisance and cause
injury to others. The court found that
evidence presented at the trial indi-
cated that the leak had occurred or
was ongoing during the period that
Smith was a commissioned agent for
Shell Oil. Therefore, Shell Oil was
liable for the entire $2.7 million in
damages plus attorneys' fees.
i^ This decision extends liability only if
|""""'the supplier was also involved in
•__ some of the activities that are
I required to be performed in the daily
: operation of USTs.
The rationale used by the court
limits the applicability of the original
decision. While the trial court's deci-
sion was very broad and encom-
passed any oil company that
supplied product to an UST owner or
operator, this decision extends liabil-
ity only if the supplier was also
involved in some of the activities that
are required to be performed in the
daily operation of USTs.
There Is Still a Question
The court noted that the industry
sought to limit liability for USTs
beginning in the 1960s by introducing
a jobber into the distribution chain:
Where the chain of responsibility
between a refiner and the indi-
vidual charged with the daily
operation of the tank is inter-
rupted by the existence of a job-
ber, at least on the facts in the
record, there is no "control" or
"responsibility" on the part of
the Oil Company within the
meaning of the Act simply by
virtue of the refiner's ability to
exert practical leverage over the
jobber and independently owned
station by refusing to sell to it.
Liability as an UST operator
would apply to suppliers in any situ-
ation where there was no jobber in
the chain of responsibility. While the
Indiana Supreme Court's decision
does limit the applicability of this
decision, it will permit states to find
petroleum suppliers liable in some
instances. Once again, it is highly
likely that this case will be appealed
to the federal courts due to the prece-
dent it sets and the amount of dam-
ages that have been assessed against
Shell Oil as a result of this release. •
As the Financial Programs Manager
for the Department of Environmental
Quality, Mary-Ellen Kendall, J.D.,
M.B.A., is responsible for making lia-
bility and fund eligibility determina-
tions for the Virginia UST Program.
ASTM Update
The American Society for Testing
Materials (ASTM) Subcommittee
E50.01 for Storage Tanks contin-
ues to be active on several fronts.
Here are highlights of current
activities:
• ASTM has introduced a new
' environmental training course
on Remediation of Ground
—• Water by Natural Attenuation
(RNA). It will be offered in
;;,; Atlanta (Feb. 23-24),, Los Ange-
les (March 9-10), Washington
D.C. (March 23-24), Chicago
(April 13-14), and New York
(May 18-19).
• Progress is continuing on the
ASTM Standard Guide for
Remedial Action Decisions.
The next formal task group
meeting is scheduled for April
; 21 in Seattle, Washington.
• Progress continues on the
ASTM Standard Guide for
Environmentally Sound Man-
agement of Tanks Systems
Storing Hazardous Substances
or Petroleum. The next formal
meeting for this task group will
be in Seattle on April 21.
• A draft has been prepared for
the ASTM Standard Guidejo^
Hydraulic Integrity Testing of
Aboveground Storage Tank
Bottoms in Petroleum Service.
: This draft should go out to sub-
committee ballot in early
spring.
• ASTM subcommittee E50.01 is
exploring the possibility of
establishing task groups to
write standard guides for devel-
oping environmental mon-
itoring plans and measuring
cleanup performance. This will
be discussed at the ASTM
Committee Week meetings in
Seattle on April 22.
If you are interested in contributing
to the development of these standards
or would like more information on the
above-mentioned ASTM activities,
contact E50.01 subcommittee chair
Dennis Rounds,at1605)1773-3769 .,..
" .'.'.' , .'., or e-mail at:
i : Dennis,Rounds@state.sd.us
26
-------
LUSTLine Bulletin 31
State Cleanup Funds
Okay, Whose State Fund Is Paying to
Clean Up AST Releases?
Results of Missouri PST Insurance
Fund Survey
The Missouri Petroleum Storage
Tank Insurance Fund (PSTIF)
had been insuring USTs and
paying for the cleanup of UST
releases for six years when the state
legislature gave it a new responsibil-
ity: insure aboveground storage tanks
(ASTs) and pay for the cleanup of
AST releases.
In an effort to learn which other
state tank funds were paying for AST
cleanups and whether their approach
was the same for ASTs as for USTs,
PSTIF Executive Director Carol Eigh-
mey took the survey route. During
the summer of 1998, she surveyed
state funds by mail and personal
inquiry at the State Fund Administra-
tors' Conference. The resulting infor-
mation was recently tabulated, and
highlights of the survey results are as
follows:
• Twenty-two state cleanup funds
pay to clean up petroleum-conta-
minated AST sites. These states
are Alabama, Arkansas, Colorado,
Florida, Idaho, Kansas, Maine,
Minnesota, Missouri, Montana,
Nebraska, Nevada, New Hamp-
shire, North Dakota, Oklahoma,
South Dakota, Texas, Utah, Ver-
mont, Virginia, Wisconsin, and
Wyoming.
• The number of AST cleanups
financed by state tank funds is
typically far fewer than UST
cleanups. In total, cleanup funds
reported paying for cleanups at
about 1,000 AST sites, although
data were not available in some
states. Maine, Virginia, and Wis-
consin reported the highest num-
bers of AST cleanups.
• Compliance with fire codes and
SPCC requirements is typically
checked at the time a claim is made.
A few state funds (i.e., Colorado,
Florida, Idaho, Missouri, Okla-
homa) check compliance on a regu-
lar basis, even if no claim is filed.
• In 10 states, all AST owners are
required to "register" with the
state; although this requirement is
not strictly enforced in some
states. Two states require registra-
tion only if fund benefits are
desired. One state requires regis-
tration of new ASTs (installed after
1991) and/or if fund benefits are
desired.
• In four states, the state environ-
mental agency requires regular
monitoring for leaks (beyond that
required by fire codes and SPCC)
for all ASTs. In two states, leak
detection is required for some
ASTs. One state is currently pro-
mulgating leak detection regula-
tions. •
For more information about this survey,
contact Carol Eighmey at (573) 522-2352.
The Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
Tanks Subcommittee conducted an Informal survey of the states regarding leak detection
requirements for ASTs. Twenty-five states responded to the survey, providing a variety of
approaches and comments to AST regulation ranging from strict leak detection and inventory
control regulations (nine states), to AST regulation by the state fire marshal! (five states), to
no real AST regulation. For a copy of the survey, contact Steve Crimaudo at (202) 624-7883.
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Future Direction
Over the last two years, EPA has
been looking to the future dkection
of the underground storage tank
(UST) program. The Office of
Underground Storage Tanks
(OUST) has gathered feedback from
various stakeholders, including
many states, to determine the state
of the UST program. It is clear from
these responses that there is still
quite a bit of work to do, particu-
larly in nine key areas: UST systems
evaluation, orphaned/ abandoned
sites, aboveground storage tanks,
program evaluation and measure-
ments, resources, corrective action,
operation and maintenance, legisla-
tive and regulatory changes, and
1998 requirements. Work has begun
in many of these areas, including
UST systems evaluation and UST
system operation and maintenance.
UST Systems Evaluation
Now that many thousands of UST
systems are (or soon will be)
equipped to meet the technical
requirements, it is clear that we
need to look more carefully at how
•• „ i Ijjil i,,|j, IS.,,, ;.,,„,„• ,„:; ••' ' ;' ;f;! : ,7; d j|| l,,i;:,,:'iS". ,In ,i! Vtift :'.!, .JgilligllKi,i am ivir''
-EPA HQ UPDATE
well these various technical ele-
ments are working. One of OUST's
new priorities will be to evaluate
the performance and effectiveness
of UST systems with respect to
environmental protection. While
anecdotal evidence suggests that
UST system performance has
improved many times over com-
pared to a decade ago, a more com-
prehensive effort is needed to check
real world performance in the field
and over time and to identify areas
where improvements may still be
needed.
OUST is currently formulating
plans to begin this evaluation. Ini-
tial efforts include: sponsoring a
national leak detection performance
study conducted by Dr. Thomas
Young at the University of Califor-
nia, Davis; holding discussions at
the national UST/LUST conference
in March; and obtaining qualitative
input from experienced people.
Partnering with industry and state
agencies will be essential to the suc-
cess of this effort.
For more information about UST
systems evaluation, contact David
Wiley at wiley.david@epa.gov.
Operation and Maintenance
Another emerging priority for EPA
is improving operation and mainte-
nance (O&M) at UST facilities. First
steps OUST will take include: gath-
ering input on what aspects of UST
facility operations need improve-
ment and then determining how to
improve them; holding discussions
at the national UST conference and
state fair in March: working with
and learning from the Postal Service
and other leaders in O&M; and
gathering qualitative input from
experienced people.
For more information about O&M,
contact Paul Miller at:
miller.vaul@epa.yov.
For more information about
OUST's planning process, contact
Bill Lienesch at:
Henesch.william@eva.fov
or (703) 603-7162.
We're Making LUSTLine More User Friendly
/ / It took a while for it to dawn on us, but so many subscribers have told us that their LUSTLine collection
* serves as a useful reference, we finally realized that the bulletin should have a 3-hole punch for easy inser-
"tion into a loooseleaf book. So, viola! Check it out.
The other thing we've sorely needed is a subject index, so readers can easily locate articles on a given
topic, beginning with our first issue in August 1985. We are in the process of developing a LUSTLine Index.
It will be completed shortly and arrive at your desk with your next issue. If you need one sooner, call
NEIWPCC at (978) 323-7929 and they'll get one out to you as soon as it is available. •
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