tle-wr 'England Interstate
Water Pollution Control
                        Eoott Mills South
                        1OO Foot of John Street
                        Lowell, Massachusetts
                   Bulletin 31
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-
  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
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-
           Ellen Frye, Editor
        j Ricki Pappo, Layout _
     Lynn DePont, EPA Project Officer
        t^a Bijou, OUST Liaison
         js a product of the New England
   , ..-
   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
    "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
    "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

 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-
           UST Compliance Hotline
 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
    "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
     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 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


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
   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
          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 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,
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.
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
    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.
                 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-

                                                                                            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
    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-
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
              • 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:

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
ber. The
                    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

Drinking Water Standards
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

     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:

    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/

       The report is available on the
            Internet at:
 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-

                                                                                           LUSTLine Bulletin 31
 rorxmervtal HealtK Hazard Assess-
 ment  compiled available  data  on
 both the carcinogenicity and devel-
 opmental and reproductive toxicity
    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
    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
                  '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
    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

LUSTUne Bulletin 31
  Investigation and Remediation
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.

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
   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

                                                                                           LUSTLine Bulletin 31
   Initially 5,000 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
    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: / / / 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

 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
                       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

              • continued on page 14

                                                          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
          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.
                • Buy only what you need.
                .!/ Use what you've got.
                • Store away from your home and well.
                • Watch for leaks.

                                                                                     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

  (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-

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
• 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


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"
S (mg/L) MF
Benzene 1,750 0.025
MTBE 42,000 0.125
Cw (mg/L)

Table 2. Reduction factors (RF) for benzene and MTBE from their equilibrium water
concentrations (Cw) to two acceptable levels (Ca1) and(Ca2).

Cw (mg/L)

Ca1 (mg/L)

Ca2 (mg/L)

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.

Cw (mg/L)
Ca (mg/L)
0.1 ft/day
70 to 300
750 to 10,000
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.

Ca (mg/L)
0.1 ft/day
60 to 230
260 to 1,060
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

                                                                                            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 or check out his Web
      page at www.
   The author wishes to thank Curtis
   Stanley of Ecjuilon Corporation for
  providing and allowing the use of the
  reduction factor and plume lengths
 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
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
    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

 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
    "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

                                                                                           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
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
    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

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.

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

    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

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
• 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
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. •

                                                                                              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

   •  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
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

   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
    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

                                                                                           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

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
   •  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;
•  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
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
• 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

The Myth  Behind
Preapproval of work scope and cost
should  not  be  viewed as a stand-
                                           'pproval of work scope and cost
                                                   - -
       'pne tool for prevention of
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-
• 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
   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: or (352) 337-2600.

                                                                                        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


 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

 • 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

 • 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,

                                                                                     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
• 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
                                • 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
• 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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   We welcome your comments and suggestions on any of our articles.

  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''
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
    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
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:
   For more information about
 OUST's planning process, contact
         Bill Lienesch at:
                                            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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