Important Changes To State And Federal UST Laws

5/10/2012 Scott M. Watson

There are significant changes to both state and federal requirements relating to underground storage tanks (USTs) that may affect your business.  This alert identifies the most important of those changes and the practical impact on owners and operators of USTs.

Changes to State Law (Part 213):

On May 1, 2012, Michigan Governor rick Snyder signed legislative amendments to Part 213 of the Michigan Natural Resources and Environmental Protection Act. The legislation was designed to clearly separate the UST cleanup program from Michigan’s general cleanup statute, known as Part 201. The legislation also makes the state audit process more predictable and adds an administrative appeal process that allows owners/operators of USTs to appeal an audit decision made by the MDEQ.

Here are some of the highlights:
 
  • Eliminated cross-references to Part 201, and added many provisions that were previously only in Part 201, such as:
    • Baseline environmental assessment process
    • Due care obligations
    • Causation based liability provisions and exemptions
       
  • Eliminated definition of “free product,” which was previously defined to be at least one eighth of an inch. The focus now will be on non-aqueous phase liquids (NAPL), including both dense NAPL (DNAPL) and light NAPL (LNAPL).
     
  • Added significant provisions regarding NAPL, including the requirement that any NAPL be assessed for recoverability and mobility or migration. In the past, there has been a general requirement that “free product,” as previously defined, would have to be remediated regardless of its mobility. The same was generally true of soils that exceeded saturation criteria. The amendments allow for a more scientific process to evaluate mobility and the potential to impact receptors.
     
  • Changed deadline for the initial assessment report from 90 days to 180 days of a confirmed release.
     
  • Changed the audit process. MDEQ can audit only final assessment and closure reports.  MDEQ will have 90 days to determine if it will audit a report, and the audit must be completed within 180 days. The audit must identify specific deficiencies that can be addressed by the owner/operator. A report can only be audited once. A report is considered approved if MDEQ does not perform an audit or provide a written response to the owner/operator.
     
  • Added an administrative appeal of audits. The owner/operator can appeal unfavorable audit decisions to a response activity review panel or MDEQ’s Office of Administrative Hearings (the contested case process for the latter appeal). In connection with the review panel, the amendments require that at least three of the eligible panel members have ASTM risk-based corrective action experience. 

New Federal Requirements
 
The 2005 federal Energy Policy Act requires the U.S. EPA, in coordination with the states, to develop training guidelines for owners and operators of UST systems. To detail that statutory training mandate, the EPA proposed rules under which owners and operators of UST systems must ensure that operator training requirements are met by August 8, 2012.1  States that receive federal UST funding are required to develop state-specific training requirements consistent with the EPA rules.  The MDEQ is still developing the Michigan rules.  After the Michigan rules are promulgated, the International Code Council will make Michigan-specific testing information available on its web site, http://www.iccsafe.org.  It is likely that there will be only a short time between the date on which the testing information is made available after the MDEQ’s issuance of the Michigan final rules and the August 8, 2012, federal testing deadline.

The proposed federal and Michigan training requirements separate UST operators into three classes: Class A, Class B and Class C.  Under the Michigan rules, each active UST site must generally have a Class A Operator, a Class B Operator and a Class C Operator. If all applicable requirements are met, the same person can serve under one, two or all three classes, but neither a Class A Operator nor a Class B Operator can oversee more than 45 facilities.

Class A:  The Class A Operator has primary responsibility for operating and maintaining a UST system. This is typically a person with managerial control over persons involved with UST regulatory compliance at a facility (e.g., a gas station owner or designated tank manager).  The Class A Operator need not be present at the site of the UST system.

Class B:  The Class B Operator has day-to-day responsibility for UST regulatory compliance. This is typically an employee in the field implementing UST operation and maintenance requirements (e.g., a gas station owner or designated tank-maintenance employee or contractor).  The Class B Operator need not be continuously present at the site of the UST system, but the Class B Operator will necessarily have some onsite presence.

Class C:  A Class C Operator is responsible for initial responses to spills or releases from a UST system. This is typically an employee in charge of dispensing and selling product from a UST system (e.g., a gas station cashier). A Class C Operator is present onsite at a UST system.

Class A Operators and Class B Operators must take and pass a certification test by the August 8, 2012, deadline. A Class C Operator may be trained by a Class A Operator or a Class B Operator (or by a third-party trainer) and is not required to take or pass a certification test. Penalties, including shutdown of a UST system, could result from failure to comply with applicable training requirements by August 8, 2012.

1The rules also remove exemptions for certain wastewater treatment tank systems, and they propose a number of other UST requirements, including, for example, recordkeeping requirements and release detection, spill prevention, overfill prevention, and secondary containment requirements.
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