5/0-2- -
Wednesday
June 4, 1986
510292601
Part IV
Environmental
Protection Agency
40 CFR Part 280
Hazardous Waste; Interim Prohibition
Against Installation of Unprotected
Underground Storage Tanks; Interpretive
Rule
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20418 Federal Register / Vol. 51. No. 107 / Wednesday. June 4. 1986 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 280
IFRL 2928-9]
Hazardous Waste; Interpretive Rule on
the Interim Prohibition Against
Installation of Unprotected
Underground Storage Tanks
AGENCY: Environmental Protection
Agency.
ACTION: Interpretive rule.
SUMMARY: New Subtitle I of the
Resource Conservation and Recovery
Act (RCRA), as amended, provides for
the regulation of underground storage
tanks. Section 9003(g) of Subtitle I
establishes interim requirements for
underground storage tanks that are
installed between May 7.1985 and the
effective date of new tank standards
required to be promulgated by EPA
under section 9003(eJ. This notice sets
forth EPA's interpretation of Section
90C3{g).
FOR FURTHER INFORMATION CONTACT:
Pamela Harris. (202) 382-4814: or Steven
Way, (202) 475-9328; or the RCRA/
Superfund Hotline at (800) 424-S346
Hoi! free or (202) 382-3000 in
U'ash.ngton. DC-
SUPPLEMENTARY INFORMATION:
I. Introduction: The Hazardous and Solid
Waste Amendments of 1984
On November 8,1984. the President
signed into law the Hazardous and Solid
Waste Amendments of 1984, Public Law
98-616. These Amendments extend and
strengthen the provisions of the Solid
Waste Disposal Act of 1970 as amended
by RCRA. A major portion of this new
legislation, Subtitle I. provides for the
development and implementation of a
regulatorj' program for underground
storage tanks used to contain regulated
substances, which include petroleum
and substances defined as hazardous
substances under section 101(14) of the
Comprehensive Environmental
Response. Compensation and Liability
Act(CERCLA).'
1 "Underground storage tank" is defined under
RCRA Subtitle I. section 9001(1) as any one or
combination of tanks (including underground pipes
connected thereto) which it used to contain an
accumulation of regulated substances, and the
volume of which (including the volume of the
underground pipes connected thereto) is 10 percent
or more beneath the surface of the ground. Such
term does not include any—
(A) Farm or residential tank of 1.100 gallons or
less capacity used for storing motor fuel for
noncommercial purposes.
(B) Tank used for storing heating oil for
consumptive use on the premises where stored.
Among the provisions of new Subtitle
I, section 9003 requires EPA to
promulgate regulations pertaining to the
detection, prevention, and correction of
releases from underground storage tanks
as may be necessary to protect human
health and the environment.2 Section
9003{c) sets forth minimum requirements
that must be promulgated for all
underground storage tanks and section
9003(e) sets forth additional
requirements that must be promulgated
for new underground storage tanks.
Regulations under both sections 9003 (c)
and (e) for tanks containing petroleum
products are to be effective by May 8,
1987. With respect to tanks containing
hazardous substances, regulations under
section 9003(e) for new tanks are to be
effective by November 8,1987 and
regulations under section 9003(c) for
existing tanks are to be effective by
November 8,1988.
Until new tank standards promulgated
under section 9003(e) become effective,
section 9003(g)(l) establishes interim
requirements for any tank installed on
or after May 7,1985. Tha» section
provides as follows:
. . [N]o person may install an underground
storage tank for the purpose of storing
regulated substances unless such tank
(whether of single or double walled
construction)—
(A) will prevent releases due to corrosion
or structural failure for the operational life of
the tank:
(C) Septic tank.
(D) Pipeline facility-(incli;ding gathering lines)
regulated under
, (i) The Natural Gas Pipeline Safety Act of 1968.
(49 U.S.C. App. 1671. et seq.).
(ii) The Hazardous Liquid Pipeline Safety Ac! of
1979 (49 U.S.C. App. 2001. et seq.). or
(iif) Which is an intrastate pipeline facility
regulated under State laws comparable to the
provisions of law referred to in clause (i) or (ii] of
this subparagraph:
(E) Surface impoundment, pit. pond or lagoon.
(F) Storm water or waste water collection system.
• (G) Flow-through process tank.
(H) Liquid trap or associated gathering lines
directly related to oil or gas production and
gathering operations, or
(I) Storage tank situated in an underground area
(such as a basement, cellar, mineworking. drift.
shaft or tunnel) if the storage tank is situated upon
or above the surface of the floor.
"Regulated substances" are defined under RCRA
Subtitle I. section 9001(2) as:
(A) Any substance defined in section 101(14) of
the Comprehensive Environmental Response.
Compensation, and Liability Act of 1980 (but not
including any substance regulated as a hazardous
waste under Subtitle C), and
(B) Petroleum, including crude oil or any fraction
thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit
and 14.7 pounds per square inch absolute).
1 "Release" Is defined under RCRA Subtitle L
section 9001(5) as any spilling, leaking, emitting,
discharging, escaping, leaching, or disposing from
an underground storage tank into ground water.
surface water or subsurface soils.
(B) is cathodically protected against
corrosion, constructed of noncorrosive
material, steel clad with a noncorrosive
material, or designed in a manner to prevent
the release or threatened release of any
stored substance; and
(C) the material used in the construction or
lining of the tank is compatible with the
substance to be stored.
As a limited exception, section
9003(g)(2) allows the installation of
tanks without corrosion protection in
soil with a resistivity of 12,000 ohm-cm
or more. Under that provision, soil tests
must be conducted in accordance with
American Society for Testing and
Materials (ASTM) Standard G57-78.
II. Purpose of the Interpretive Rule
An interpretive rule is a statement
issued by an agency to advise the public
of the agency's construction of the
statutes and rules that it administers. An
interpretive rule simply construes the
language of the statute or regulation and
does not impose additional obligations.
Such rules are exempt from the notice
and comment requirements of the
Administrative Procedures Act, 5 U.S.C.
553(b)(A) (1982). A substantive rule,
such as the new tank standards
authorized by section 9003(e), is a rule
that is issued by an agency pursuant to
statutory authority that implements the
statute. EPA intends this notice to be an
interpretive rule, not a substantive rule.
Section 9003(g) establishes statutory
requirements that took effect on May 7,
1985 without prior action on the part of
EPA. Several of the requirements set
forth under section 9003(g) are in the
form of performance standards. EPA
believes that the interpretive rule
clarifies obligations of the regulated
community in complying with the
interim prohibition. The rule also puts
the regulated community on notice of
the circumstances under which the
Agency will proceed with enforcement
action for noncompliance.
III. Other Related EPA Activities
On July 15,1985. EPA codified the
statutory language of section 9003(g) in
its regulations at 40 CFR 280.2.
EPA is preparing a guidance
document that is available in draft form
in the Regional Offices. This document
discusses methods and technologies for
preventing releases from tanks due to
. corrosion, structural failure, or the
storage of materials that are
incompatible with die tanks'
construction or lining. This guidance will
assist tank users in determining
effective approaches to meet the
performance standards in section
9003(g).
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Federal Register / Vol. 51. No. 107 / Wednesday. June 4. 1986 / Rules and Regulations
20419
IV. Legislative History of Section 9003(g)
Many of the storage tank provisions
now contained in Subtitle I, including
section 9003(g), had then- origins in a bill
introduced by Senator Dnrenberger on
February 29,1984 as an amendment to
the Safe Drinking Water Act, 130 Cong.
Rec. S2026 (Feb. 29,1984). Among these
provisions was a requirement that EPA
promulgate new tank standards within
nine months of the date of enactment of
the proposed amendments. Such
standards were to include a prohibition
on bare steel tanks. Id. at S2026. The
provisions established an exception
from the bare steel tank ban "where the
Administrator finds there is minimal
danger of corrosion." Id. In describing
that provision. Senator Durenberger
stated that "installation of common but
less adequate tanks—those made of
bare steel—would be prohibited unless
the hydrogeology of the area is such that
there is a minimal danger of corrosion."
Id. at S2027.
On July 25,1984, Senator Durenberger
offered a modified version of his storage
tank provisions as an amendment to
RCRA. 130 Cong. Rec. S9164 (July 25,
1984). This amendment was passed by
the Senate. Id. at S9201. In this modified
version, the deadline for—new tank
standards was extended and the bare
steel ban was converted into an interim
requirement that new tanks be installed
in accordance with enforced national
consensus code." This requirement was
to go into effect ninety days after the bill
was passed and remain effective until
EPA promulgated new tank standards.
Id. at S9163-64.
On the House of Representatives side,
amendments to RCRA were passed but
did not contain provisions for the
regulation of underground storage tanks.
130 Cong. Rec. H9184 (November 3,
1983). On August 10,1984, however, the
House passed an underground storage
tank bill as an amendment to CERCLA.
130 Cong. Rec. H8938, H9027 (August 10,
1984). The House bill contained an
interim prohibition that provided as
follows:
Until the effective date of the regulations
promulgated by the Administrator under
subsection (a) and after 180 days after the
date of the enactment of this title, no persor
may install or begin using an underground
storage tank for the purpose of storing
hazardous substances unless such tank, of
either single or double wall construction, is
cathodically protected against corrosion,
constructed of noncorrosive material, steel
clad with a noncorrosive material which
would prevent corrosion for the operational
life of the tank, or contained in a manner
designed to prevent the release or threatened
release of any stored hazardous substance
and unless in all cases the material used in
the construction or lining of the tank is
compatible with the substance to be stored.
Id. at H8939.
Subsequently, a Conference
Committee was formed to consider the
RCRA amendments passed by the
Senate and the House. Although the
House CERCLA bill was not officially
under consideration by the RCRA
Conference Committee, the conferees
adopted the language of that bill's
interim prohibition with several
significant, modifications. 130 Cong. Rec.
H11121 (Oct. 3.1984). These
modifications included the requirement
that every new tank prevent releases
due to "Structural failure" for its
"operational life" (section 9003(g)(A))
and the exception from corrosion
protection requirements for tanks
located in soil with a resistivity of 12,000
ohm/cm or more. The Conference
Report described the reported provision
as follows:
Following enactment the installation of
bare steel tanks, i.e. those which provide
little or no protection against corrosion, will
be prohibited until the Administrator
promulgates regulations establishing the
conditions for installation. Bare steel tanks
may be installed (pending promulgation of
EPA regulations) only where properly
conducted soil tests show resistivity at 12,000
ohms/cm or more. This provision replaces the
provision in the Senate amendment which
prohibits installation of bare steel tanks
except in states that enforce a national
consensus code.
130 Cong. Rec. 11139 (Oct. 3,1984).
The bill, as reported by the
Conference Committee, ultimately
passed both houses and was signed by
the President on November 8,1984.
The legislative history of section
9003(g) reveals that, as originally
introduced in the Senate, the section
was aimed at preventing the installation
of steel tank systems without corrosion
protection. Ultimately, however, section
9003(g) wa« expanded not only to
prohibit installation of bare steel tanks,
but also to include requirements
pertaining to the structural integrity of
all newly installed tanks and the
compatibility of the substances stored
with the materials used in the
construction and lining of such tanks.
V. EPA's Interpretation of Section
9003(g)
EPA reviewed the statutory language
of section 9003(g) and its legislative
history. Based upon this review, EPA's
conclusions are set forth below.
Section 9003(g) (codified as 40 CFR
280.2) establishes three requirements
that must be satisfied by all
underground storage tanks (including
underground pipes connected to the
tanks) installed between May 7,1985
and the effective date of new tank
standards promulgated under RCRA
section 9003(e), with the exception of
tanks qualifying for the exemption from
corrosion protection requirements under
section 9003(g)(2). There requirements
are: (1) That the tank and underground
piping be designed, constructed, and
installed to prevent releases due to
corrosion for the operational life of the
tank and the piping; (2) that the tank and
underground piping be designed,
constructed, and installed to prevent
releases due to structural failure for the
operational life of the tank and the
piping; and (3) that the materials used in
the construction or lining of the tank and
its underground piping be compatible
with the substance to be stored in the
tank.
The first two of the above
requirements are established by section
9003(g)(l)(A), which provides that tanks
must "prevent releases due to corrosion
or structural failure for the operational
life of the tank." The third requirement
is established by section 9003(g)(l)(C).
In addition, section 9003(g)(l)(B) sets
forth minimum requirements for tank
design and construction. Under section
9003(g)(l)(B), tanks must be either
cathodically protected against corrosion.
constructed of noncorrosive material,
steel clad with a noncorrosive material
or designed in a manner to prevent the
release or threatened release of any
stored substance.
In addition to cathodically protected
tanks and tanks constructed or clad
with non-corrosive materials, section
9003(g)(l)(B) would permit the use of
other types of tanks and protective
measures if they are "designed in a
manner to prevent the release or
threatened release of any stored
substance." Interested parties may
consult with EPA on a case-by-case
basis concerning the effectiveness of
particular technologies for preventing
releases.
There are several examples of tanks
that do not satisfy the requirement of
section 9003(g)(l)(A) that they prevent
releases due to corrosion for the
operational life of the tank. A steel tank
whose only corrosion protection is a
coating of noncorrosive materials that is
applied in such a way'that it will not
prevent releases due to corrosion for the
operational life of the tanx is not
adequate. Similarly, a cathodically
protected tank whose cathodic
protection is not designed to prevent
releases for the operational life of the
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20420 Federal Register / Vol. 51. No. 107 / Wednesday. June 4. 1986 / Rules and Regulations
tank will not be deemed to have
satisfied this requirement.
Paint and asphalt coatings are not
adequate for cathodic protection.
Asphalt paints are soluble in a number
of regulated substances that are
normally stored in tanks, including
solvents and hydrocarbons, such as
gasoline. Applications of both asphalt
paints and lead paints are thin, easily
[damaged during installation and easily
worn,away during use. They do not
provide a complete seal for the tank.
such paint or asphalt coatings do not
provide corrosion resistance for the
sperational life of the tank and,
therefore, do not comply with the
interim prohibition.
Tanks that satisfy the requirement of
section 9003(g)(l)(A) to prevent releases
due to corrosion must still satisfy the
requirements that they prevent releases
due to "structural failure" and that the
materials used in the construction of the
tank be compatible with the substances
to be stored. For example, a tank
constructed of noncorrosive material
that is subject to structural failure
because of its design or installation
would not satisfy the requirements of
section 9003(g)(l). Similarly, a tank
whose construction materials are not
compatible with the product to be stored
would not satisfy the requirements of
section 9003(g)(l) because, although it
satisfies the corrosion protection
requirement of section 9003(g)(l)(A). it
does not satisfy the compatibility
requirement of section 9003(g)(l)(C).
Section 9003(g)(l) provides that "no
person may install an underground
storage tank" unless such tank satisfies
the requirements of sections 9003[g)(l)
(A). (B), and (C). EPA interprets the term
"no person may install an underground
storage tank" to encompass any persons
responsible for having a tank installed.
including among others owners,
operators and installers. EPA also
interprets section 9003(g) as applying to
all new installations, including
installation of previously used tanks and
to any new installation of underground
piping associated with underground
tanks subject to the prohibition. When
the new installation is only piping, only
the new piping would be subject to the
standards in section 9003{g).
With respect to the exemption from
corrosion protection requirements
provided by section 9003{g)(2), EPA
interprets this provision as permitting
the installation of a tank without
corrosion protection if a person, prior to
installation, demonstrates by means of
soil testing conducted in accordance
with ASTM Standard G57-58 that the
soil at the location where the tank is to
be installed does not have a resistivity
of less than 12.000 ohm-cm.
A tank exempted from corrosion
protection requirements under this
section, however, must still satisfy the
requirement that the tank be designed,
constructed, and installed to prevent
releases due to the structural failure, of
the tank and that the materials used in '
the construction or lining of the tank be
compatible with the substances to be
stored in the tank. Thus, for example, a
steel tank without any type of corrosion
protection may be installed at a location
where the soil continues to have a
resistivity of 12,000 ohm-cm during the
operational life of the tank. However, if
the tank is constructed or installed so
that it suffers structural failure or is not
compatible with the stored product and
releases its contents, the tank would not
be in compliance with section 9003(g).
VI. Summary of Supporting Analyses
1. Executive Order 12291
Executive Order 12291 [46 FR 13193,
February 9,1981] requires that a
regulatory agency determine whether a
new regulation will be "major"
regulation and, if so. that a Regulatory
Impact Analysis be conducted. A major
rule is defined as regulation which is
likely to result in:
(1) An annual effect on the economy
of $100 million or more;
(2) A major increase in costs or prices
for consumers, individual industries,
Federal, State, and local government
agencies, or geographic regions;
(3) Significant adverse effects on
competition, employment, investment.
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
This rule does not have any of the
impacts listed above. The Agency did
conduct an economic impact analysis of
the interim prohibition as part of the
Hazardous Waste Management System;
Final Codification Rule published in the
Federal Register July 15,1985. The
Regulatory Impact Analysis concludes
that upper bound cost estimates for the
Interim Prohibition are under $10 million
per year.
The interpretive rule has been
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291.
2. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., whenever an
agency publishes a general notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
impact of the rule on small entities (i.e..
small businesses, small organizations,
small governmental jurisdictions). The
Administrator may certify, however,
that the rule will not have a significant
economic impact on a substantial
number of small entities.
The Regulatory Impact Analysis for
the Final Codification Rule also
addresses the impact of the Interim
Prohibition on small entities and
concludes that the Interim Prohibition
will not have a significant economic
impact on a substantial number of small
entities. This interpretive rule does not,
therefore, require a regulatory flexibility
analysis.
Dated: May 21, 1986.
Lee M. Thomas,
Administrator.
[FR Doc. 86-12002 Filed 6-3-86; 8:45 am]
BILLING CODE 85W-SO-M
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