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 Jeryl L. Olson and Craig B. Simonsen

Power Lines and Pulp Mill PollutionIn a busy day for vapor intrusion, last week the U. S. Environmental Protection Agency made several announcements about vapor intrusion.

First, it announced it had submitted a draft rule to the White House OMB seeking to add vapor intrusion to the pathways evaluated under the Hazard Ranking Scoring (HRS) System for National Priority List (NPL) Superfund sites.   Additionally, EPA published two new sets of technical guidance on assessing vapor intrusion. One guidance document has been prepared for assessing vapor intrusion from leaking petroleum underground storage tank sites, and the other guidance document is aimed at assessing vapor intrusion for sites with non-petroleum contamination.

Draft Rule on Assessing Vapor Intrusion as Part of Site Hazard Ranking

With respect to EPA’s draft rule adding assessment of vapor intrusion to the Hazard Ranking Scoring process, this is the Agency’s second effort at adding the vapor intrusion pathway to the other types of pathways which are already considered in evaluating and then listing a site on the National Priorities List. The same version of the rule was previously submitted to, but then withdrawn from, OMB consideration.

EPA believes now that it is necessary to evaluate vapor intrusion in scoring of sites for the NPL in order to ensure that health risks associated with vapor intrusion are addressed and cleaned up as part of Superfund remediations. Opponents to the process, however, believe that adding assessment of the vapor intrusion pathway to the NPL HRS scoring system will lead to more sites being listed on the NPL, despite the belief that EPA’s Superfund program is already taxed. If the draft rule receives OMB approval, the rule will be published as a Notice of Proposed Rulemaking in the Fall of 2015.

New Vapor Intrusion Guidance

With respect to new vapor intrusion guidance, EPA published guidance both on performing vapor intrusion assessments where the source is petroleum vapor from leaking underground storage tanks (“Technical Guide for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites,” EPA 510-R-15-001, June, 2015) (hereinafter “PVI Guidance”) and for vapor intrusion risks associated with all other types of sites and non-petroleum chemicals (“OSWER Technical Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air,” OSWER Publication 9200.2-154, June, 2015) (hereinafter “OSWER VI Guidance”).

According to EPA, the existing 2002 (“OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils,” EPA530-D-02-004) guidance on vapor intrusion assessment is replaced by the two new PVI, and OSWER VI Guidance documents. In promoting the two new sets of guidance, EPA indicates that the mitigation measures advocated in the new guidance are “more cost-effective” than mitigation measures considered in the previous draft guidance, and EPA is also advising its new approach to testing for vapor intrusion is more “flexible,” including sampling indoor air or sampling the external sub-slab area.

While comprehensive, and containing certain “user-friendly” features, the new draft guidance for vapor intrusion is not without controversy. EPA has acknowledged that its 2002 draft guidance indicated that OSHA, and not EPA, would take the lead in looking at occupational exposure to vapor intrusion. In the new guidance, EPA seems to back off its previous acquiescence to OSHA’s primary jurisdiction where there is occupational exposure, and merely mentions that there are Memoranda of Understanding (MOUs) between OSHA and EPA dated November 23, 1990, and February 1991, which govern the Agencies’ relative responsibilities (but of course those MOUs pre-date vapor intrusion as a current focus of concern). Tellingly, in Section 7.4.3 of the OSWER VI Guidance, EPA specifically states its reasons for its recommendation that EPA standards, as opposed to OSHA PELs or TLVs, should be used for evaluating VI human health risks for workers in non-residential buildings. EPA bases its conclusions on what it characterizes as OSHA’s own recognition that its PELs are “outdated and inadequate for ensuring protection of worker health.”

LUST PVI GUIDANCE

The LUST PVI Guidance is less substantial, both in terms of technical information and volume, than the OSWER VI Guidance, and is on its face aimed at EPA regulatory personnel investigating and assessing petroleum vapor intrusion (PVI). Nevertheless, the guidance indicates it is intended for all “UST regulators and practitioners.” The PVI Guidance looks at petroleum hydrocarbons (PHCs) in diesel, gasoline, and jet fuel related volatile organic chemicals (VOCs) such as BTEX, methane generated from anaerobic biodegradertory of petroleum products, and is focused on providing screening criteria based on the distance between PVI sources and potential receptors.

It is interesting to note the PVI Guidance states it is applicable to “…new and existing releases of PHCs and non-PHC fuel additives from leaking USTs and to previously closed sites where the implementing agency has reason to suspect that there may be a potential for PVI.” [Emphasis added]. Despite that statement, the PVI Guidance does acknowledge that it “…does not impose legally binding requirements on implementing agencies or the regulated community”; and, thus, the guidance should not be read as triggering a need for VI assessments at closed LUST sites.

Other features of the PVI Guidance are two “user-friendly” features: a Table, and separate Flowchart, each summarizing EPA’s recommended actions for addressing PVI at LUST sites, and an entire section discussing computer modeling of PVI.

OSWER VI GUIDANCE

Of the two VI policies published June 11, the OSWER document on non-petroleum VI is the more robust of the documents published, with 245 pages of technical guidance. One of the stated purposes of the OSWER Guidance is to “…promote national consistency in assessing the vapor intrusion pathway …” while providing a “…flexible screening based approach to assessment…”. As with the PVI Guidance, the OSWER VI Guidance is ostensibly aimed at any CERCLA , RCRA or Brownfield sites being evaluated by EPA, or for authorized state RCRA corrective action programs or state-led CERCLA sites, however, it is expected that particularly in states with fledgling VI policies, the OSWER Guidance will become the standard for VI assessments and mitigating measures.

Features of the OSWER VI Guidance include a comprehensive guide to preliminary and detailed VI sampling and assessment technologies in myriad settings (VI in inclusion zones, settings with multiple buildings evaluating concurrent indoor and ambient air sources, etc.). The guidance also discusses strategies for risk assessment under numerous exposure scenarios. Finally, there is a lot of attention focused on mitigation systems in buildings, and subsurface remediation.

By Andrew H. Perellis and Craig B. Simonsen

The environmental community continues to focus on the vapor intrusion pathway — guidance has been issued by ASTM, ITRC and more than 25 States. Most recently, the U.S. Environmental Protection Agency’s (EPA or Agency) Office of Underground Storage Tanks (OUST) just published an information paper entitled, “Petroleum Hydrocarbons And Chlorinated Hydrocarbons Differ In Their Potential For Vapor Intrusion.” The purpose of this paper is to amplify the discussion of why petroleum hydrocarbons (PHCs) warrant a different analysis and approach than do chlorinated hydrocarbons (CHCs) when investigating the issue of vapor intrusion. The conclusion is that petroleum hydrocarbons in many cases do not produce a vapor intrusion risk.

In the vadose zone, PHCs behave differently than do CHCs because PHCs biodegrade easily in the presence of the oxygen in the soil, and because PHC free product is lighter than water. In contrast, CHCs typically are more resistant to biodegradation and its free product is denser.

Given these distinct characteristics, it is likely that regulators in the near future will be able to develop exclusion criteria for petroleum contaminated sites whereby, with sufficient depth of soil between the source and receptor, the vapor intrusion concern can be eliminated without further testing. See, Hartman, B., The Vapor-Intrusion Pathway: Petroleum Hydrocarbon Issues, Lustline, No. 66. The ability to screen out candidate sites without need for intrusive testing would be of substantial benefit in streamlining regulatory decision-making.

EPA’s information paper is one in a series of steps being taken by EPA’s OUST group with the goal of producing final PHC guidance in 2012, as a compliment to the vapor intrusion guidance update expected by Office of Solid Waste and Emergency Response before December 2012. See www.epa.gov/oswer/vaporintrusion.