By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: New Illinois Office of State Fire Marshall (“OSFM”) regulations, (42 Ill. Reg. 10476, 10662-667, June 15, 2018, effective October 13, 2018), require that periodic operation and maintenance include recorded “walkthrough inspections” for underground storage tank (UST) facilities. 

Under new OSFM rules, each Class A Operator, who has the primary responsibility of operating and maintaining the UST system, and Class B Operator, designated with day-to-day aspects of operating, maintaining and recordkeeping for UST systems “… shall perform walkthrough inspections of each storage tank system for which he or she is designated, and shall record the results of each inspection on a checklist to be maintained with the facility records.”  The walkthrough inspection requirement took effect on October 13, 2018, and replaces the previous requirement to conduct quarterly equipment inspections.  The rules under Part 35, Section 176.655 of the Illinois Administrative Code, require that at a minimum, a walkthrough inspection shall be conducted at least once every 30 days and include inspection of:

  • Release detection methods, including monitoring systems and all associated sensors;
  • The integrity of spill and overfill prevention and spill containment equipment and manholes;
  • Dispensers, hoses, breakaways and hardware for leaks and damage; and
  • Operational status of impressed current cathodic protection systems, including checking and recording that the power is on and that the voltage, amps and hour meter have the appropriate readings required under Section 175.510(f), with a log entry that shows date of inspection, initials of inspector, hour, volt and amp readings, and power on verification.

In addition, at least once per year the Operator shall inspect:

  • All containment sumps by: (i) checking for visual damage to the sumps, covers and lids; (ii) checking for the presence of regulated substances or any indication that a release may have occurred; and (iii) checking that the sumps and the interstitial areas for any double-walled sumps with interstitial monitoring are free of water, product and debris;
  • All UST equipment including emergency stops for the presence or absence of visible damage to any UST component;
  • Emergency stops to document they have been tested by the owner/operator or a contractor for interconnection and pump shutdown;
  • Shear valves to document they have been visually inspected by the owner/operator or a contractor;
  • All required signs to ensure they are fully visible and all communication systems in place and operational;
  • All daily, 30-day, monthly and annual inspections, testing, reporting and records required under 41 Ill. Adm. Code 174, 175 and 176; and
  • If applicable, the tank gauge stick or groundwater bailers, for operability and serviceability (manual tank gauging or groundwater monitoring).

To assist owners and operators with rule compliance and recordkeeping requirements, the OSFM provides a UST Operations and Maintenance Plan Template Form (OSFM O&M Plan Template).  As noted in the OSFM O&M Plan Template and in the rules, each Class A or Class B Operator “shall perform walkthrough inspections” of each storage tank system for which they are designated and shall record the results of each inspection “on a checklist to be maintained with the facility records.”  Specific 30 day inspection report forms and annual walkthrough inspection report forms are also available from the OSFM.  The OSFM also provides FAQs For Class A, B, and C Operator Training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By Philip L. Comella and Craig B. Simonsen

iStock_000049177646MediumThe U.S. Environmental Protection Agency has promulgated significant new provisions both to its 1988 underground storage tank (UST) regulations and to its 1988 state program approval (SPA) regulations. 80 Fed. Reg. 41566 (July 15, 2015). This is the first major revision to the federal UST regulations since 1988.

The revisions to the UST technical regulations found in 40 CFR part 280 increase the EPA’s emphasis on “properly operating and maintaining UST equipment.” EPA has added new operation and maintenance requirements and addressed UST systems deferred in the 1988 UST regulation. The changes include:

  • Adding secondary containment requirements for new and replaced tanks and piping.
  • Adding operator training requirements.
  • Adding periodic operation and maintenance requirements for UST systems.
  • Adding requirements to ensure UST system compatibility before storing certain biofuel blends.
  • Removing past deferrals for emergency generator tanks, airport hydrant systems, and field-constructed tanks.
  • Updating codes of professional practice.

The 2015 state program approval amendments update the SPA requirements found in 40 CFR part 281, and incorporate the changes to the UST technical regulation found in 40 CFR part 280. Thirty-eight SPA states and the District of Columbia and Puerto Rico currently have SPA status and have three years to reapply in order to retain their SPA programs.

Useful and related tools provided by the Agency are a “Comparison of 2015 Revised UST Regulations and 1988 UST Regulations,” a “Red Line Strikeout of 40 CFR part 280 and 40 CFR part 281,” and its revised and updated “Musts For USTs” guidance document.

Facilities with regulated USTs should review carefully the new regulations to ensure their systems, processes, procedures, and training materials and systems are compliant with newly applicable requirements.

The final rule is effective October 13, 2015.

By Mark A. Lies, II, James L. Curtis, and Craig B. Simonsen

Three engineersLast week the Occupational Safety and Health Administration announced and issued a 161 page final rule to increase protections for construction workers in confined spaces. 80 Fed. Reg. 25366 (May 4, 2015), which is effective on August 3, 2015.

Confined spaces can be loosely defined as manholes, crawl spaces, tanks, and other places that are not intended for continuous occupancy. Confined spaces are also, because of their calculated design for other purposes, difficult to exit in an emergency. People working in confined spaces, without taking proper precautions, can face life-threatening hazards such as toxic substances, electrocutions, explosions, and asphyxiation.

The Secretary of Labor Thomas E. Perez said of the rule that “in the construction industry, entering confined spaces is often necessary, but fatalities like these don’t have to happen.” “This new rule will significantly improve the safety of construction workers who enter confined spaces. In fact, we estimate that it will prevent about 780 serious injuries every year.” OSHA Administrator, Dr. David Michaels, said “this rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health.”

The OSHA final rule adds a new subpart to 29 CFR Part 1926 to provide protections to employees working in confined spaces in construction. The new subpart replaces OSHA’s one training requirement for confined space work with a “comprehensive standard that includes a permit program designed to protect employees from exposure to many hazards associated with work in confined spaces, including atmospheric and physical hazards.” According to the Agency, the final rule is similar in content and organization to the general industry confined spaces standard, but it also incorporates several provisions from the proposed rule to address construction-specific hazards, to account for advancements in technology, and to improve the “enforceability of the requirements.”

Members of the regulated community, that is property owners, construction contractors, and sub-contractors, need to timely review this expansive rule, in order to meet the compliance date of August 3, 2015 and avoid OSHA citations. There are now new obligations on the various employers who may have their employees involved with construction site confined spaces.

One important requirement added to the rules relates to the responsibilities of the host employer (the owner of the site containing the confined space), the controlling contractor (who has primary control over the construction project), and the entry employer (whose employees will enter the confined space). The regulation makes the controlling contractor, rather than the host employer, the primary point of contact for information about the permit confined spaces at the worksite. The host employer must provide information it has to the controlling contractor who in turn passes the information to the entry employer.

In addition, the controlling contractor is responsible for making sure that employers outside of the confined space do not create hazards in the confined space, and that multiple entry employers working in a confined space at the same time do not create hazards for each other’s employees.

With such a complex and immense rule, employers are encouraged now to review their construction confined space policies, procedures, and training programs to ensure compliance with the new standard.