Testimony of Kathleen Stiller
Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
U.S. Senate Environment and Public Works Committee,
Superfund, Toxics, Risk and Waste Management Subcommittee
Underground Storage Tanks and Leaking Underground
Storage Tanks-Related Provisions in S. 1850
1:30 p.m., Wednesday,
May 8, 2002
Room 406, SDOB
Good afternoon. I am Kathleen Stiller and I am the Chair of the Tanks Subcommittee of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO). Thank you for inviting ASTSWMO to testify concerning S. 1850, the Underground Storage Tank Compliance Act of 2001, introduced by Mr. CHAFEE (for himself, Mr. CARPER, Mr. SMITH of New Hampshire, Mr. JEFFORDS, and Mr. INHOFE). ASTSWMO is a non-partisan, nonprofit association which represents the collective interests of waste program directors of the nation's States and Territories. Besides the State regulatory program managers for underground storage tanks, ASTSWMO's membership also includes the State regulatory program managers for solid waste, hazardous waste, and waste minimization and recycling programs as well as State cleanup and remedial program managers. Our membership is drawn exclusively from State employees who deal daily with the many management and resource implications of the State waste management programs they direct. As the day-to-day implementers of the State and Federal cleanup programs, we believe we can offer a unique perspective to this dialogue.
ASTSWMO State members who implement the tanks regulatory and cleanup programs have discussed S. 1850 since its introduction, and find many positive features included in the provisions. However, the first thing we need to point out is that the collective requirements of this legislation on State programs involve substantial increases in State workload. As a generalization, we are obliged to tell you that most States cannot meet these new requirements without substantially increased resources. We know that this bill contains substantial increases in the levels of funding authorized for State programs, and we are appreciative of that important fact. We also understand that the Senate Environment and Public Works Committee cannot guarantee that the President will request, nor the Congress appropriate funding at these authorized levels in future years. However, if this money is not appropriated in future years, we will not be able to do the job demanded by this legislation. Without adequate appropriations, this would be a significant unfunded mandate for our member State programs.
This is especially true today, with State revenues down, deficits up, and many personnel restrictions and hiring freezes in place. If this legislation were to pass this year, we are afraid that some States would not be able to start up immediately, nor be able to implement a number of features in the initial years.
With that important caveat stated, let me outline the reactions of our members to a number of the specific provisions of the bill which would directly affect their State programs:
States' reactions to codifying a distribution to the States of at least 80 percent of the funds appropriated each year from the LUST Trust Fund indicated that State needs would probably be met if the level of appropriations is at the full level of authorization. However, if the annual LUST Fund appropriation decreases, or if it remains static as program costs and mandates increase, some State programs would experience hardship. It has been our understanding that approximately 85% of the annual appropriation was divided among the States, so a mandatory 80% distribution could actually represent a decrease under some circumstances. We believe that it is very important that the annual appropriations be increased to the proposed authorized levels to meet many pressing and vital areas in our programs which cannot be properly implemented with current funding levels. The provision in Section 2 that would authorize States to use the LUST Trust Funds to enforce State or local tank leak detection, prevention, and other requirements would be a welcome improvement to State flexibility. This too, would require increased appropriations, as today's demands on these LUST funds would not allow use of the new flexible options at current funding levels.
Most of our members agree in principle with achieving the goal that all USTs regulated under Subtitle I be inspected every two years, but we have varying opinions of how practical that will be in implementation. -Some think that in geographically large States with smaller tank populations, where there is already an established three-year inspection cycle (which coincides with a 3-year cathodic protection test) and where private, third party inspectors are utilized, a two-year inspection cycle would be problematic.
In States with a larger UST universe, the ability to implement a two-year inspection schedule for federally regulated tanks is dependent on the State receiving and being able to use the additional funding that would be needed to hire additional inspectors and to develop an effective strategy.
We think that States without a federally approved program, but which have a mature and active petroleum leak prevention program which could be expanded to include biennial inspections of federally regulated tanks, should be allowed to receive appropriations provided by the bill to perform the same work that would be done under a federally approved program.
This new requirement for biannual inspections is probable the most resource critical feature of the bill. If it is actually funded at the $35 million level for each of the first two years and $20 million for every year thereafter, there is a strong possibility that the inspection rate can be increased and will result in greater compliance levels. But, if it is not fully funded, then the two-year inspection schedule simply cannot be implemented, and the requirement to perform such a Herculean feat is not attainable.
Once the $35/$20 million appropriations authorized by S. 1850 are made, then the formula used to apportion the money among the States becomes critical. Our experience is that funds apportioned by State population or by the number of federally regulated facilities probably will come closer to matching the level of effort required. Other formulas are more problematic, especially if they are not directly connected to the cleanup or compliance target facilities.
As a final point regarding inspections, any inspection cycle must include follow up enforcement and it is unclear whether the authorized level of funding in this bill includes money for conducting follow up enforcement activities.
The requirement for operator training could be a substantial undertaking given the turnover associated with this type of business and the number of UST facilities which varies widely from State-to-State. While it is difficult to project the scope of this training program until federal regulations are developed, it is apparent that owners could gain substantial benefit from reduced penalty exposure and reduced remediation costs. We do not believe that States should be expected to bear the burden of providing the training. The responsibility to provide training must remain with the owners of regulated facilities, and the final legislation should unambiguously state that responsibility.
States programs recognize the importance of UST operator training, but resources needed to implement effective operator training programs have historically not been available. The UST operator training provisions of the bill potentially represent a very significant new workload. As an example, if a State had a universe of 10,000 facilities subject to the federal UST regulations, depending on who is considered to be an "operator" and, therefore, would become a trainee, the training program may have as few as 10,000 or a multiple of that number of students. This would be a huge undertaking.
Currently, it is difficult to make a qualitative assessment of the UST operator's training during an inspection. However, a common shortcoming we find during inspections is poor operation and maintenance that logically can be attributed to poor training or no training. Such a shortfall seriously undermines the prevention side of State UST programs.
We think that the program recommended by the Administrator will need to allow creative and innovative State implementation, and avoid a "one-size-fits-all" regulatory and funding approach. A certification requirement would help ensure that operators maintain a basic level of understanding of the equipment at the station. For example, implementation may not involve the direct delivery of such training. Rather, training programs may be created which utilize third party services. Community colleges or private enterprises may be harnessed to perform this function. Some States may prefer more direct involvement in training programs and have taken steps to offer training and have attempted to help owner/operators understand their equipment and responsibilities as onsite inspections are conducted. High turnover rates, however, have made this path difficult. Another option would be requiring owners/operators to fund the costs to administer the program and allow the States to pass these costs directly onto them or make annual funding available based on the number of active regulated UST in each State.
The key is that States don't want to be forced to provide the training directly, and to have flexibility in causing training to meet established outcomes. When considering allowing the Administrator to provide an award of up to $50,000 if a State develops and implements a State operator training strategy, State managers consider it unlikely that a one-time $50,000 award could support a program that must deal with many thousands of regulated UST facilities.
In sum, we think that the substance of the federal training guidelines must allow flexible State oversight and design in the way training requirements are met within each State. States should have the flexibility in the way required training is delivered and paid for, and allow Federal funding use for costs of managing training efforts.
Providing $200 million for MTBE remediation is a welcome funding increase. However, a worst-case MTBE remediation, which involves potable supply, wells, bedrock aquifers and active remediation, can reach into the millions of dollars for investigation and cleanup. $200 million could potentially be used up on a small number of sites nationally with large amounts of money directed toward little effective contamination recovery.
As with any cleanup, but especially true with MTBE, quick response actions can help achieve large amounts of contaminant recovery early on. The remaining cleanup could then occur with traditional State funds or responsible party/enforcement driven actions. Our members suggest that the focus should be on accelerated source and receptor control of MTBE and other additives to best leverage funding.
Additionally, $200 million for MTBE remediation should only be included in a legislative package that ensures that all aspects of an UST system are properly maintained and tested. There are components of an upgraded UST system that are considered "non product bearing" that have been found to be the source of MTBE contamination; these sources have been identified only as a result of monitoring ground water for an older release or a potable well impact.
UST "autopsy" studies of significant spills have also shown that spill buckets (that crack or become loose from fill ports) should be tested regularly; sumps that contain turbines (at which leaks occur) should also be product tight and tested regularly. Finally, requirements for dispenser pans and Stage 2 vapor recovery systems (including drop tanks) should be imposed. All these escape routine testing under the existing federal UST rules and have been found to be sources of MTBE contamination in many States. This aspect is particularly critical for States that can adopt rules no more stringent than EPA.
When considering chemical properties of MTBE, cleanup costs cannot be precisely calculated. Every gasoline release represents a potential MTBE site and some of us have seen MTBE contamination from leaks of other types of petroleum products such as diesel fuel and heating oil. Due to the unique physical and chemical characteristics of MTBE, the cost of remediation in some States has been driven up by 20 to 50% at sites with no threat to potable water. In some cases, the cost to clean up releases where water supply wells are impacted can increase by 100%.
In States where a cleanup guideline for MTBE has been established to address taste and odor thresholds, many more private water supply wells contaminated with MTBE must be remediated at substantial added costs.
State program managers believe that an increase in inspection rates and follow-up enforcement activities would have a direct positive effect on compliance rates among UST facilities and have created priorities for targeting facilities with a higher potential for being the source of a release. Thus, some facilities are inspected more often than others to prevent releases at sites where the potential for such an incident is deemed to be higher. Generally, each time a State UST inspector completes an inspection cycle the compliance rate increases and the severity of the noncompliance issues tends to lessen. An increase in funding for States to conduct inspections, issue orders, or bring enforcement actions under this section would be very desirable. We would also like to suggest that rather than a rigid two-year inspection cycle envisioned in Section 3 of the Bill, EPA could be required to develop a prioritization system based on risk to the environment, public health and safety, and the use of the tank. The system could require tanks in more sensitive areas to be inspected more frequently and those with higher through puts to be inspected more frequently.
Historically, the compliance rate of facilities owned and operated by government agencies is generally lower than privately owned sites. This includes all levels of government, not just federal. Local government has among the lowest compliance rates for leak prevention requirements. Many State and federal agencies are also remiss in this area. We think that the proposed award of up to $50,000 if the State develops and implements a compliance strategy for government owned facilities is a good provision. We strongly agree with the parallel requirements for a compliance strategy for federally owned tanks.
“States have reviewed the provisions requiring consideration of whether an owner or operator has a history of noncompliance and has been to training or has a training program before deciding to issue an enforcement action. While these are items that many States consider in making their enforcement determination, States do not want their enforcement authorities limited to only those facilities that have a history of non-compliance or have not been to or do not have a training program for operators. A violation may be of a serious enough nature that an enforcement action should be undertaken even if there is no history of non-compliance and the operator has been trained. States need discretion in their enforcement activities and this appears to limit that.
States have considered delivery prohibition and "red tagging" to prohibit product delivery and generally support the use of "red tagging" as an enforcement tool. A number of States use this method, and they find it to be a highly effective method to obtain higher rates of compliance among the regulated facilities. However, the proposal for delivery prohibition should not be linked to State program approval. As in Section 9011 (1)(B) for LUST Trust Fund eligibility, the ability to use the federal delivery prohibition should be linked to the State implementing a similar or identical federal requirement. This could be accomplished in a variety of ways, and would provide all the States with this valuable enforcement tool.
States have considered developing a record of regulated USTs which could be made available to the public. In some States, existing databases are adequate for this purpose. Following attacks on the United States on September 11th, some States implemented measures intended to protect sensitive information that could potentially be used to injure the nation. The identity and location of facilities where petroleum products are stored may be regarded as potentially valuable information to terrorists. In recognition of this aspect, the authors may wish to consider modifications requiring record keeping and reporting without granting wide spread public access to precise information about individual facilities. Further, we believe that this record keeping requirement could have a very high hidden cost if some limitations are not placed on the Administrator's authority to require the data to be maintained, "in such a manner and form" as he/she shall prescribe. A clearer statement of the desired legislative outcome of this provision would help define the system eventually required.
Thank you for requesting our testimony regarding this important legislation. I would be happy to respond to any questions you might have regarding our views.